THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW >«• ir^ ?.uLD BY Whilinif v*. Huntingl«« ( Ol.i MiiUS, I) v>^ .V ^ vv -c ^* ■^^r •• # • ^--^sc N • % . •• %f JUDGE SH^AW'S WEW WORK, FOR EXECUTORS AND ADMINISTRATORS ISAAC N. WHITING has this day published, A MANUAL FOR EXECUTORS AND ADMINISTRATORS, IN THE SETTLEMENT OF THE ESTATES OF DECEASED PERSONS: With Practical Forms. BY JOSEPH R. SWAN, President of the 12th Judicial Circuit, and Author of "Swan's Treatise on the law relating- to the Powers and Duties of Justices of the Peace and Constables, in the State of Ohio." 1 voL 8vo. pp. 350. Price., ^1.25 in law binding. This work is intended to be what its title purports, ^ Manual for those who settle the estates of deceased persons. It embodies the provisions of the Statutes, with such Comments, Decisions, Forms, and other matter, as are deemed requisite for persons not skilled in the law, to understand the ordinary duties of Executors and Administrators. This object has been kept in view through- out, not only because a large book would be almost useless to those persons who desire to read no more than is necessary to make themselves well acquainted with their general duties, but because, in most cases, an Executor or Administrator would not be justifiable in purchasing an expensive work. Besides, it will perhaps be found that this book embodies much more useful in- formation than the most voluminous and elaborate English works upon the same subject. The various subjects, as will be per- ceived from the following Table of Co7itents, are treated, as near as could be, in the order in which the various duties should be performed; beginning with the Notice to Creditors, then the taking of the Inventory and Schedules, with Forms; the Sale and Sale-bill; what are Assets and what are not; the Collection of the Assets, and when and how; the Authentication of Claims against the estate, and tlieir arhitrp'ion, &c., with Forms; the Sale of the Real Estate; the Itcmedies by and against Executors and Administrators; the Mode of Sellllng Insolvent Estates, &c. &c. From the well known talents of the author, and the time and labor which lie lias devoted to the above work, the publisher con- fidently believes it will be found equally as valuable to Executors and Administrators, as his well known "Treatise" has been to Justices of tlie Peace, Lawyers, and men of business generally. For sale at the Bookstore of 1. N. WlIlTixNG &. HUNTINGTON. Columbus, January, 1811.. CONTENTS. PART FIRST. Chap. I. — thk notice to chkditors. CllAr. 2. Al'lMtAISKK.S, INVENTORY, AND ALLOWANCE TU TIIKAVIPOW AND ClllLDRKN. 1. The appointment and oath of the appraisers. — 2. No- tice of taking the inventory. — 3. What pro[icrty shall be included in the inventory, and how to obtain possession of the assets. — 4. Form of tlie inventory. — 5. Properly rc- tincd by the widow and children, and the alluwunce of their year's support. Chap. 3. — the sale of the personal estate. 1. When and what property/ to be sold. — 2. How the per- sonal property to be sold, and notice thereof. — 3. The sale- bill. Chap. 4. — avhat are assets, and what are not. 1. What are in general deemed assets. — 2. Real estate, and chattels real — 3. Chattels personal; (A. C/iallcls ani- mate. ]j. Chattels vegetable. C. W/iut chattels ^-c. go to the heir and what are deemed fixtures. D. Leases. E. Rents. F. Property held by decedent as trustee Sf-c. G. Annuities. H. Stocks. I. Goods, ^-c., in other county or state. J. Pol- icies of insurance. K. Indentures of appi'cnticeship. L. Part- nership and joint debts, SfC. M. Goods mortgaged. N. Mo- ney.) Contents of Siuaris Manual. 3 Ch. 5. ALLOWANCE OF TIME TO REDUCE ASSETS TO MONET. Ch, 6 THE COLLECTION OF DEBTS &C. DUE TO AN ESTATE. 1. The general duty of Executors and Administrators in relation to the collection of debts. — 2. Book accounts of the decedent. — 3. When offsets to be allowed, and when not. — 4. Mortgages. — 5. Title bonds, deeds, and other contracts for land, held by the decedent. — 6. Claims against the ex- ecutor, and claims discharged by the will. — 7. Actions for certain injuries and frauds committed in the lifetime of the decedent. — 8. What actions pending at the death of plaintiff survive, &c. Chap. 7. — within what time creditors must present THEIR claims. Claims against an insolvent estate. Chap. 8. — the mode and time of establishing, and suits ON, claims against an estate supposed to be sol- vent; AND the liabilities, &C., OF THE EXECUTOR OR administrator, to the creditors. I. Authentication and allowance of claims against an es- tate: [A. The authentication or proof of claims; B. The allowance of claims.] — 2. Suits pending, and judgments rendered against a decedent, at the time of his death. — 3. Claims rejected by the executor or administrator, how ar- bitrated; and the limitation of actions upon rejected claims; [.L What is deemed a disputed or rejected claim; B. With- in what time a rejected claim must be sued by a creditor, if not referred to arbitration, and when barred; C. Under what circumstances claims of creditors may be referred to arbitration; D. Form of agreement for that purpose. E. Mode of proceeding if the claim does not exceed one hun- dred dollars; F. Mode, if claim exceeds that sum.]-~4. Oth- er suits than arbitrations upon claims against an estate. — 5. Limitation of actions against, and the presentation of claims to, an executor or administrator.— -G. As to costs of suits on claims against an estate. — 7. As to executions, and proceedings for waste, against an executor or admr. Chap, 9. — of the payment of the nKBfs of an estate. 1. In what order debts are to be paid, and what are pre- ferred debts. — 2. What class of debts may be paid during 4 Contents of Sunn's Manual. the first year of the administration. — 3. Of the payment of general crcilitors l)efore the expiration of one year from the time the exeeiitor or administrator gave notice of his ajv pointment. — 4. Of the payment of general creditors after the expiration of a year from the time the executor or admi- nistrator gave notice of liis appointment. — 5. Vouchers or receipts for debts paid. Chap. 10. — i'krformaiVcf, of other than money con- tracts OF the decedent. 1. Contracts for the conveyance of real estate. — 2. Other contracts. Chap. 1 1. — sale of real estate by order of court. 1. In what cases application may be made for the sale. — 2. When application therefor to be made. — 3. Where petition to be filed. — 4. General requisites of petition. — 5. When an atlidavit required to the petition. — 6. The form of the petition and afHdavit. — 7. Parties to the petition. — 8. What estate in lands, and what portion of the lands will be or- dered sold. — 9. Process and notice to defendants, and proof of service, and waiver of notice, &c. — 10. Guardian ad li- tem. — 11. In what cases, and when, an appraisement will be ordered. — 12. The ap])ointment of appraisers. — 13. The oath of the appraisers and certificate thereof. — 14. Duty of appraisers in assignment of dower, and appraisement, and how to estimate the gross value of a life estate. — 15. Forms of appraisements and assignments of dower. — 16. Fees of appraisers. — 17. How the heirs &c. may prevent a sale of the real estate. — 18 When a further administration bond will be required to secure the purchase money. — 19. The order of sale, notice of sale, and sale. — 20. Report of sale and confirmation. — 21. Form of report of sale. — 22. Deed to the purchaser, and its effect. — 23. How money arising from the sale of the real estate applied. — 24. Effect of death of petitioner upon the proceedings. Chap. 12. — compensation, account, settlement, dis- tribution, AND PAYMENT OF LEGACIES. 1. Compensation of an executor, or administrator, 2. When an account to be made out and filed. — 3. Direc- tions for making out, and form of, an account, and with what to be charijed and credited. — 4. Publication of notice Contents of Swan''s Manual. 5 of filing account, and by whom paid, &c. — 5. When the ac- count will be settled by the court. — 6. Exceptions to the ac- count. — 7. How the account will be settled, and e.xamina- tion of the executor or administrator under oath. — 8. Open- ing and review of the account, after its settlement.— 9. Dis- tribution of balance found to be in the hands of an admin- istrator, and settlement thereof, and payment of heirs and legatees. — 10. Disposition of moneys belonging to heirs and legatees, and unclaimed. Chap. 13. — proceedings for not returning an inven- tory, SALE BILL, OR ACCOUNT, Chap. 14. — administrator de bonis non. Chap. 1 5. — special administration. Chap. 16. — administration during the minority of in- fant EXECUTORS. Chap. 17. — joint administration. Chap. 1 8. — administration with the will annexed. Chap. 19. — foreign executors and administrators. Chap. 20. — personal liability of executors and admi- nistrators UPON their promise. Chap. 21. — remedy of heirs, creditors, &c., upon the administration bond. 1. The effect of giving separate or joint and several ad- ministration bonds. — 2. When, and for what, a suit may be brought upon the administration bond: [A. By a creditor of the estate, to recover his dchl. B. By a distributee, to reco- ver his distributive share of the estate. C. By a legatee, to recover his legacy. D. Other suits upon the administration bond.] — 3. In what court and mode such suit may be brought — 4. Proceedings in a suit at law on such bond. — 5. Pro- ceedings in a suit in chancery on such bond. Chap. 22. — proceedings by creditors against the hejrs &c. OF deceased persons. 6 Contents of Sxcan's Manual. PART SECOND. THE SKTTLKMKNT OK INSOLVENT KSTATKS. CiJAHT. 23. — The duties of an executor or administrator ge- nerally, of an estate supposed to be insolvent, before he represents tlie estate as insolvent. Chapt. 24. — When and how an estate declared insolvent and the general effect thereof, and order of court thereon. Chap. 25. — General powers and duties of commissioners. Chap. 26. — The rights and remedies of creditors, in estab- lishing their claims, &c., when commissioners are ap- pointedto audit the claims. Chap. 27. — Duties of an executor or administrator, as to allowing and listing, and reporting the claims of credi- tors upon an insolvent estate, when no commissioners are appointed; and exceptions to his report. Chap. 28. — Rights and remedies of creditors in establish- ing their claims, ^c, when the executor or administrator acts in the place of commissioners. Chap. 29. — The allowance and payment of contingent lia- bilities of the decedent. Chap. 30. — The allowance of claims secured by mortgage or judgment lien. Chap. 31. — The account of an executor or administrator of an insolvent estate, and remedies against him tor not fil- ing the same, &c. Chap. 32. — Order of distribution among creditors after the return of the commissioners' report of claims. Chap. 33. — Order of distribution among creditors at'ter tlie return by the executor or administrator of the list of debts against an insolvent estate. Chap. 34. — Proceedings, if an estate represented to be insol- vent, proves to be solvent, or after being declared by the court solvent, afterwards turns out to be insolvent. Contents of Sivan^s Manual. 7 PART THIRD. THE STATUTE PROVIDING FOR THE SETTLEMENT OF THF. ESTATES OF DECEASED PERSONS. 1. Of letters testamentary and letters of administratration. 2. Of the inventory; and the allowance to the widow and children; and of the other debts due to the estate. 3. Of the sale of the goods and chattels, and of the sale bill. 4. Of the notice to creditors; and of the authentication and payment of the debts, and payment of legacies. 6. Of the sale of real estate for the payment of debts; and of the distribution of the proceeds thereof. (3. Of the account and compensation of an exr. or admr.; and provisions as to the distribution in certain cases. 7. Of suits on administration bond, &c. 8. Of proceedings when the estate of deceased persons is insolvent. 9. Of proceedings by creditors, against the heirs, devisees, &c., of deceased debtors. 10. Miscellaneous provisions. He also publishes the SCHOOL AND TOWNSHIP OFFICER'S MANUAL: By Warren Jenkins, Esq. Attorney at Law. 1 vol. sup. roy. 12mo. 316 pp. small type, with side notes and margmal references. Price, $1. This work is divided into three parts: 1. Of Common Schools, and the Duties of School Officers. H. Of Township Officers, Administrators and Executors, and their Duties. 111. Of Conveyancing ; containing a full and complete set of Forms for all kinds of conveyancing; Articles cf Agreement, Indentures. Bills, Promissory Notes, S^c. ^-c. Tliis work is desicncd to supply School and Townsliip Officers, Administra- tors and Executors, witli a plain and intelligible directory in every department of their respective duties, according to the laws now In force. The duties of each Officer are separately and distinctly treated of and classified, and the classifica- tion is so arranged as to present to tlio officer his several duties in the order in which they occur, from his election or appoinlnicnt until the expiration of his term of office and the settlement of his accounts. The several laws now in force defining those duties, are also inserted at length in separate sections. Copious references are given throughout the work to the authorities relied upon. A NEW EDITION OF SWAN'S TREATISE. ISAAC N. WHITING, lias published a New Edition of Swan's Treatise; with re- ferenccs to the newly lieviscd Slaiutes of this State. A Treatise on the Law relating to the Powers and duties of Justices of the Peace and Constables, in the Slate of Ohio: with Practical Forms, &ic. By Joseph R. Swan, President Judge of the 12th Judicial Circuit. 1 vol. roy. 8vo, GOG p. The First Part contains a summary view of the progress of a civil suit, from its commencement to its termination, with the general principles of law in relation to the differ- ent kinds of actions — who should sue and be sued — the issu- ing, service, and return of the summons and capias: the at- tendance and competence of witnesses: the trial: the gene- ral rules of evidence: the form and effect of different kinds of judgments: the stay of execution and proceedings there- on: tlie issuing of execution: the power, duty and liabili- ty of the officer in arresting, levying, advertising and sell- ing: the trial of the right of property; returns of execu- tions, etc. The Second Part contains the general rules of law in re- lation to statutory actions; such as forcible entry and de- tainer; attachment, &c.; and treats of contracts, the rights and liabilities of partners, carriers of goods, inkeepers, hus- band and wife, parent and child, master and servant, and other miscellaneous matters of a civil nature. The Third Part contains the law in relation to prosecu- tions for crimes and misdemeanors, with practical forms. The Fourth Part contains forms of conveyances, wills, agreements, &c. The three foregoing works, may he had in Cincinnati, at tlie hookBlore of Deselver and Hurr, George Conklin, E.Morgan l^ Co., and George Cox; at R. A. Ells', Dayton; C. U. Davis', Intllannpolif, la.; Jason Cape's, Circlcville ; Joseph Jones' and Wilson Carey's, Cliillicotlie; Henry H. Ncal's, Gallipolis; SlocomI) 1^ liiick, Mariclla; Rohb and Sicplicnson's. Wieeling; James Turn- bull's, Slculenville; C. II. Kay (^- Co's., Pilisliurgli; B. L. ^^ Entered nccoriliii!; to Art of Congress, in tlie year 1836, by Isaac N. Whitinq, in tlic Clerk's Office of the District Court of the District of Ohio. rRI>-TED BY WKIGIIT & LEGG, COLUMBUS. ADVERTISEMENT TO THE THIRD EDITION. The second edition of this compilation being "out of print," the present edition has been corrected and revised witli a view to embody in the text and notes such laws as are now in force, including the statutes passed at the last session of the Legislature. The references at the foot of the pages have been cor- rected so as to refer to the collated statutes just pubUshed. Columbus, October, 1841. e480SB PREFACE. , The object of this Treatise is to enable the Magistrate and the Constable, in the exercise of their respective of- fices, to understand and apply the common practical rules of la^v, as kno\vn and recognized in the higher courts of justice. It is not to be regarded as embracing all possible cases that may occur in the ever changing affairs of human life, but only as a compilation of general rules, accompa- nied with practical forms, such as may be useful to the Magistrate in the performance of his duties, and to the ConstaTjle in executing the ordinary process of the law. The jurisdiction of the Magistrate is so extensive, and embraces so many of the transactions of life, that men of business may find it for their interest as well as conveni- ence, to consult the following pages. This Treatise may occasionally fall under the notice of the Bar. It is to their liberality, and to their knowledge of the difficulties incident to the execution of a work of this kind, that the writer looks for that indulgence which his errors and imperfections so much need. CONTENTS. PART FIRST. CHAPTER I. Page. JUSTICES OF THE PEACE. Sec. I. Number of justices in each township, 1 2. Term of office, 1 3. When and how elected, 2 4. How their election may be contested, 2 5. Of their official oath — bond, and forms thereof, 3 6. Resignation, and when the office is deemed vacant, 4 CHAPTER II. JtJRISDICTION IN CIVIL PROCEEDINGS. Sec. 1. Of the general jurisdiction of a justice, 6 (A) In what cases it is co-extensive icifh tlie county, 5 {B) When it extends to more than one hundred dollars, 6 (C) In tohat cases a justice has no jurisdiction, Q 2. The consequences of proceeding without jurisdiction, 8 CHAPTER III. OF THE DIFFERENT ACTIONS, 8 Sec. 1. Of the action of trespass on the case, 9 2. Of the action of covenant, 1 1 3. Of the action of debt, H 4. Of the action of trover, 1 1 5. Trespass to personal property, 12 6. Trespass to lands, 13 7. Of joining diflerent causes of action in one suit, 13 CHAPTER IV. OF THE PARTIES TO ACTIONS. Sec. 1. Who must be plaintiff, 15 {A) In an action on a contract, 15 {B) Who 7nust be plaintiff in an action for a wrong, 17 2. Of the consequences of an omission, or mistake, in making parties plaintiff, 19 3. Who must be defendant, 19 {A) In an action on a contract, 19 (i>) Who may be defendant in an action for a wrong, 22 4. Of the consequences of an omission, or mistake, in making parties del'endants, 23 5. Of the consequences of the decease of parties while suit is ^ pending, 24 VI CONTENTS. CHAPTER V. OF THE COMMENCEMENT OF SUITS. Page. Sec. 1. Of suits by and against a non-resident of the county oi* township, 25 2. "W'lien a summons, and when a capias, the first process, 27 3. lie(|uisites and form of a summons, and the indorsements thereon, 31 4. Of the service and return of a smnmons, 32 5. Re(|uisifes and form of a ca])ias ad respondendum, 33 n. Of the service and return of a capias ad respondendum, 34 CHAPTER VI. OF THE BILL OF PARTICULARS AND CLAIMS TO BE FILED WITH JUSTICE. Sec. 1. Of the bill of particuhn-s, 38 (A) W/icii the jMi'lics should file it, and the evidence thereon, 38 {B) What a hill of particulars must contain, and the 'effect of mistakes or omissions therein, 38 (C) Houj to proceed where either j/arli/ 7ie^lects to fie a hill (f particulars, 40 2. Of tlie claims which must be filed with the justice, and his proceedings thereon, 40 CHAPTER VII. OF THE PROCEEDINGS BEFORE THE TRIAL, AVHEN A SUIT IS COMMENCED BY A SUMMONS. Sec. 1. Of entering upon the docket and amending the return to the summons, and what defects and errors in the previous proceedings are waved by the defendant's appearance, 41 2. How to proceed when the plaintiil" fails to appear, 44 3. How to proceed when the dcfeiuhmt fails to appear, and how and when a judgment against him may be set aside, and a new trial granted, 45 4. How to proceed when both parties fail to appear, 45 6. How to proceed when the justice fails to attend, 46 G. ^^'hen, and for what period, a suit may be adjourned, 46 (A) For the hencfit of an ahsent 2>«r/) When an opposite party lyroduces an instrument, and claims an interest under it, 8 1 (C) When suit is bi'ought upon a deed, promissory note, or bill of exchange, and herein, of the affidavit ami ])lea in such case, 8 1 4. How the execution of written instruments must be proved, 83 5. Of parol or verbal evidence to contradict or vary a written instrument, 84 CHAPTER XV. DEPOSITIONS. Sec. 1. By and before whom depositions niay be taken, 87 2. Of tlic notice, subpoena, and attachment, and forms thereof, 87 3. Form of oath to witness, and forms of deposition, certifi- cate, &c., 89 Oaths, 93 CHAPTER XVI. PROCEEDINGS IN JURY CASES; THE DECISION OF A CAUSE BY A JUSTICE; AND THE EFFECT AND FORM OF JUDGMENTS. Sec. 1. Proceedings in jury cases, and the decision of a cause by the justice, 96 (A) In iL-liat cases a jury is alhioed, when to he claimed, and the effect of confession as to costs, 95 (jB) Continuance, venire, and inijjannehnent, in jury cases. 96 (C) Oath, trial, verdict, Sj-c, in jury cases, 97 {D) The hill of exceptions, 98 (E) The decision of a cause hy a justice. 102 2. Of the nature, effect, and form '['judgments, 102 {A) Of the nature, effect, and form of judgments of nonsuit, 102 {B) Of the nature, effect, and form of a judgiuent of dicontinuance, 103 (C) Of the nature, effect, and form of a judgment on the merits. 103 CHAPTER XVn. FEES AND COSTS. Sec 1. Items of the fees of the justice, 107 {A) For issuing lorits, 107 {B) For entries ujjon the docket, 108 (C) For certificates, cojpies and oaths, 108 {D) Miscellaneous fees of the justice, 108 2. Items of the fees of a constable, 108 3. Fees of witnesses and arbitrators, 109 4. How the costs in civil suits and proceedings should be taxed, and may be recovered, 109 5. How fees in criminal cases may be recovered, 111 {A) As to the fees of the justice. 111 {B) As to the fees of the constahle, 112 (C) Of the fees of witnesses, 113 (£>) XV hen such fees are paid hy the county, 113' CHAPTER XVIII. OF THE DOCKET. Sec. 1. How the entries upon the docket should be made, 1 14 2. Forms of entries on the docket, 117 (yl) When suit is hroug/it on an account — ivhen the defcnd- jint fails to appear, and trial had — when judgment is rendered for the plaintiff on the merits — when the judgment is set aside and new trial had — ivhen judg- ment is rendered for the defendant on the juerils, 117 (J5) When suit is on a note and a capias issues — ivhcu the suit is hy partners, against surviving partners — when tlie defetulant enters into a recognizance upon aib adjmirnment — ivhen the plaintiffs fail to prove they arc partners — tvhen a nonsuit is entered, 1 18 CONTENTS. Page. (C) WJieii suit is hrou^hl aiiainst odminislrators — when it is brought on a bond — ^rhcn summons is served by copy left (it the dwell ing house of the defendant — jvhen a set (jr is allowed the defendant — when costs are recovered apainst an administrator, 119 {D) When judgment is confessed, 121 (E) When there is a jury trial, 122 CHAPTER XIX. APPEAL. Sec. 1. Tn what cases an appeal may be taken, 123 2. ^A'ithin what time, and for what amount, a recognizance for an appeal must be entered into, 124 3. Form of a recognizance for an a[)peal, 124 4. Of filing, &c., the original pajiers, &c., in court 125 5. How to proceed when the parties fail to enter the appeal in court, and also when the court have acted upon it, 125 (A) How to proceed when the appeal is quashed by, or not en- tered in the Court of common 2>J cos, 125 (jB) How to proceed ichcn the appeal is dismissed, or judg- ment rendered in court against apjjellant; with forms of scire facias and docket e7itries, 126 CERTIORARI, CHAPTER XX. CHAPTER XXI. 129 OF THE STAY OF EXECUTION. Sec. 1. In what cases no stay of execution is allowed, 131 2. When, and for what time, a stay may be allowed, 132 3. Of proceedings to obtain a stay, and form of recognizance, 132 4. When an execution may issue notwithstanding the stay, 133 5. Of proceedings by the plaintiff to charge the bail for stay of execution, and form of scire facias, 134 6. I^orm of docket entry and judgment in proceedings against surety for the stay of execution, 136 7. Of proceedings by the plaintiff on the original judgment after judgment, &c., against the surety for stay 137 8. Of proceedings on the original judgment by the surety for stay of execution, 137 CHAPTER XXII. OF THE'iSSTTING ANT) FORMS OF EXECUTIONS. Sec. 1. When and what kind of execution may be first issued, 138 2. In what cases an execution may issue out of the township, 140 3. When a venditioni exponas must be issued, 141 4. Form of a fieri facias, 141 5. Form of an execution against the goods, chattels and body of the defendant, " 142 6. Form of an execution against the goods and chattels of co- defendants, where some of them are sureties, 142 7. Form of au execution against executors and administrators, 143 8. Form of a venditioni exponas, 143 154 CONTENTS. XI CHAPTER XXIII. OF PROCEEDINGS UNDER A FIERI FACIAS. Sec. 1. What property is exempt from execution, 145 2. What description of property can be taken on execution, 146 3. When, and what force may be used to obtain property on execution, 148 4. What is a good levy, and what not, 149 5. Of the effect of a levy, 150 6. When property levied upon may be left in the possession of the defendant, by the constable or by the plaintiff, with the form of a bond for re-delivery, 151 7. Effect of the death of either party to a judgment after a levy^ 8. Of the advertisement and sale, 154 9. Of the title which a purchaser acquires by a sale on exe- cution, 156 10. Of the return of executions, and the forms thereof, 156 11. Suggestion of lands, 162 12. Of the rights of the plaintiff, and the duties of a constable, when there are two or more executions against the same debtor, 163 13. What to be done with money collected upon execution, &c. 164 CHAPTER XXIV. OF THE SERVICE AND RETURN OF AN EXECUTION AGAINST THE GOODS AND BODY J AND OF ESCAPES. Sec. 1. Of the duty of the officer to seek for goods and chattels, 166 2. ■ Of the arrest and commitment; the effect thereof; when the defendant ma}^ be enlarged; and forms of returns, 167 3. Rights and liabilities of the constable and parties when the defendant escapes, 170 CHAPTER XXV. OF THE TRIAL OF THE RIGHT OF PROPERTY TAKEN ON EXECUTION, 173 CHAPTER XXVI. OF TRANSCRIPTS ; AND OF THE DOCKET, &C., OF A JUSTICE WHOSE OFFICE IS VACANT. Sec. 1. Who is entitled to a transcript, and by whom the same may be certified, 177 2. Of the docket, &c., of a justice whose office is vacant, by death or otherwise — proceedings thereon, and upon transcripts therefrom, 178 3. Of proceedings upon other transcripts, 178 4. Forms of cei-tificates to authenticate transcripts, 179 6. Form of scire facias issued upon the transcript or docket of another justice. 180 6. How the scire facias must be served, 180 7. Form of docket entry in proceedings by scire facias, 181 i'lr CONTENTS. PART SECOXD. TITLE I. P»ge. ACCORD AND SATISFACTION, 185 TITLE n. ACCOUNT BOOK, 187 TITLE III. - ACKNOWLE0UEMENT OF DEEDS, 191 TITLE IV. ADMINISTRATORS AND EXECUTORS, 192 TITLE V. APPRENTICES. Sec. 1. AMio may be bound out to service, and for what time, 195 2. ^\ lio may bind out infants, 195 3. AVhat statements and covenants an indenture of appren- ticeship must contain and how executed, 196 4. When the indenture must be recorded, and the effect of not recording, 197 5. Of the dissohition of the apprenticeship, 197 6. Of the rights of the apprentice, 197 7. Of the rights of tlie master, 199 8. Of enticing away, employing, or harboring apprentice, &c. 200 TITLE VL ARBITRATION. Sec. 1. Of arbitration before a justice, 202 (A) W/icn and Juno a cause pendhiff 7nay he snhmiHed to ai-hitrators, and the forms of I he citation, oat lis and award, 202 (7?) Hoio an award may he set aside, 204 2. The force and effect of an award as an instrument of evi- dence, 205 {A) General requisites of an award, to render it valid, 205 {B) When an award is void, 206 (C) The effect of an award, when valid, 208 TITLE Vn. ASSIGNMENT OF CLAIMS NOT NEGOTIABLE. Sec. 1. "What claims are negotiable, and the meaning of the term "choses in action," 210 2. How choses in action may be assigned, 211 3. Of the rights of an assignee of a chose in action against the debtor, 211 4. Of the rights of the assignee of a chose in action against the assignor, 212 5. Of the right of the debtor where a chose in action has been assigned, 215 6. Of the liability of the assignor and assignee for costs, 216 CONTENTS. Xni TITLE VIII. ATTACHMENT. Page. Sec. 1. In what cases an attachment may issue, 217 2. Of the affidavits of the creditor to procure process, 218 3. Of the issuing of the writ, and the nature thereof, 218 4. Of proceedings by the plaintift' after the writ is issued and before trial, 219 6. Of the service and return of the attachment, where no one prefers a claim to the property attached, 219 6. Of the mode of proceeding and forms where property at- tached is claimed by a third person, 221 7. Of proceedings against the garnishee, and forms therefor, 225 8. Of proceedings on the writ of attachment after its return, 227 9. Forms of affidavits for a writ and for proceedings against a garnishee, 229 10. Form of a writ of attachment, 230 11. Form of a warrant against a garnishee, 231 12. Form of notice of the issuing of attachment, 231 13. Constable's return to a writ of attachment, 232 14. Form of bond to the constable for the re-delivery of pro- perty, _ 233 15. Docket entries where there is no garnishee, 233 TITLE IX. BAILMENT. Sec. 1. Where goods are deposited to be kept without reward, and to be returned when the bailor shall require it, 238 2. Where a person delivers goods to another to be carried without reward, or to have some act performed about them without reward, 240 3. Where a person borrows an article to be used by him for a limited time without paying for the use, 241 4. When goods are delivered by a debtor to his creditor, to be kept as a security for a debt or engagement, 242 5. Where animals, goods, or other things, are delivered to a person to use for a temporary period, and for which use he is to pay a compensation, 244 6. Where articles are delivered to a person that he may, for a compensation, bestow work and labor, or care and pains upon and about them, 245 7. Of the rights, duties, and liabilities of the carriers of goods for hire, 248 (A) Who is not a common carrier, and the Halillty of a pri- vate carrier, 243 (J5) Who is a common carrier, 248 (C) W/iat are his duties, 249 (D) What are the risks for tvhich he is liaUe, 249 (£) As to the commencement and ter-mination of the risk of common carriers, 251 {F) Of the natxire and effect of notices given hj common car- riers, limiting their liahility for the loss of goods, 253 (H) Of the lien of the carrier for freight, 253 (J) now the value of lost goods is to he estimated, 266 XIV CONTENTS, Page. Sec. 8. Of the rights, duties, and liabilities of carriers of passcn- fjcrs, 255 (A) Their (lufies in the commencement of the journey, 255 {B) Their duties on the progress of the journey, 256 (C) The termination of the journey, 257 (D) As to the liabilities of jjassenger carriers, 257 {E) The rights of paf^scngcr carriers, 258 Sec. 9. Of the rights, duties, and liabilities of inn-keepers, 259 TITLE X. BANKS, 264 TITLE XI. BASTARDy, 265 TITLE XII. CONSTABLES. Sec. 1. How inducted into office, with the form of his official bond, 270 2. In what cases a justice may appoint a constable, 271 3. The general powers and duties of constables, 271 4. Procoj'dings against a constable and his sureties for the misconduct of the former, with forms of process and docket entries, 272 TITLE XIII. CONTEMPTS, 278 TITLE XIV. CONTRACTS GENERALLY. Sec. 1. Defmition — contracts by parol — specialties — executed — executory — express — implied, 281 2. Of the want of understanding to make a contract, 284 3. Of restraint by imprisonment, 284 4. Of restraint by threats, 285 5. Of the consideration of a contract, 285 6. Of an illegal consideration, 288 7. How contracts should be construed and performed, 290 8. Of the alteration of contracts, 291 9. Of contracts not to be performed within one year, 292 TITLE XV. coroner's INQTTEST, 293 TITLE XVI. ELECTIONS. Sec. 1. The mode of contesting elections, and forms therefor, 297 2. Of the opening and certifying the returns of an election, 299 3. Form of oath to be administered to the judges and clerks of elections, 299 CONTENTS. XV TITLE XVII. rape. FORCIBLE ENTRY AND DETAINER, 300 Sec. 1. When, in what cases, and where, an action for forcible entry and detainer may be brought, 301 2. When notice to quit is necessary, and how given, 301 3. Of the written complaint of the plaintiff, 302 4. Of the issuing, service, and return of the process, 302 5. What proceedings are had, after the process is issued, and before the trial, 302 6. Of the evidence and proceedings, on the trial, 303 (A) When the suit is against a tenant for holding over his term, 303 {B) Of the proceedings on trial, when the j^laintiff claims as purchaser under an execution, 304 (C) Of the proceedings on the trial when the defendant is a settler, or occujyier, without any color of title, 306 7. Of the verdict of the jury, 306 8. Of the judgment of the justices, and execution thereon, 307 9. Of appeal, and certiorari, 307 10. Forms, 307 {A) Notice to leave the premises, 307 {B) Form of the complaint, for forcille entry and de- tainer, 308 (C) Form of comjjlaint, by p)urchaser on execution, for a forcible detainer, 308 {D) Form of complaint by landlord against tenant, 309 (£) Form of bond for costs, ichen the plaintiff is a non- resident of the county, 309 {F) Form of warrant or venire for a jury, 310 (G) Forin of sinnmons to the defendant, 311 (H) Form of the oath, to be administered to the jury, 31 1 (7) Forms of verdicts, 311 {K) Forms of judgments, 313 (L) Form of the writ of restitution, 313 [M) Docket entry, 314 TITLE XVIII. FRAUDS. Sec. 1. When a suit may be maintained for the assertion of a false- hood, 316 2. Of sales, &c. made by debtors to defraud creditors, 318 TITLE XIX. GUARANTY, AND PRINCIPAL AND SURETY. Sec. 1. Of the manner in which sureties may contract, 321 2. What promises come within the statute, and must be in writing, and what do not, 322 3. Of the consideration for the promise of the surety, 325 4. What is a suflicient agreement in writing, under the statute, 326 5. Of the extent of the contract of surety, 328 6. How the surety may be discharged by the acts of the cre- ditor, 328 XVI CONTENTS. Pago. Sec. 7. Of the riayment are vxived, 394 (F) Form of indorsement leithout recourse on the indorser, 394 6. Of the rijihts and obligations of the drawer of a bill before acceptance, 395 7. Of tlie i)resentment of a bill for acceptance, 395 8. Of the rights and obligations of the acceptor of a bill, and the maker of a note or bond, 397 9. Of the rights and obligations of the indorser of a bill, note, or bond; and of the drawer of a bill, after acceptance, 398 10. At what time demand of payment must be made from the drawee or acceptor of a bill, or the maker of a note or bond, so as to make the indorsers, &c. liable, 401 11. Of the mode in which demand must be made, 403 12. Of the notice of demand and non-payment to be given to the drawer of a bill, and to the indorser of a note, bond, or bill, so as to make the indorsers, &c. liable, 405 , {A) How the notice should be given, 405 (J5) What the notice should contain, and the form thereof 405 (C) When the notice must be given, 406 (D) To whom, and by ivhoin, notice should be given, 407 13. In what cases demand, and wlicn both demand, and notice of non-payment, will be excused, and when not, 407 14. In what cases the want, or failure, of consideration, &c., may be set up as a defence, 410 15. How the indorsers &c., may be discharged, by one party giving time &c. to another, 414 16. Of tiic rights and obligations of parties to a lost, stolen, or forged note, bond, or bill, 416 17. Of the rights and obligations of parties to a bank check, 419 TITLE XXXII. SALES. Sec. 1. "When a sale is complete, 422 CONTENTS. Sec. 2. Of the place of demand and delivery, 3. Of the mode and time of day, in which a demand and ten- der should be made, 4. Of the performance of a contract of sale and cflect of a de- livery of a part of the property, 5. Of the effect of a tender upon the rights of the buyer and seller; and of the damages in such case, and where no tender is made, 6. Of the remedy for defects in the quality and title of pro- perty, (A) Of fraudulent concealment or misrepresentation of the (jualifij of things soM, (B) Of the different kinds of loarranty, (C) Of implied loarranties, (D) Of an express warranty, TITLE XXXIIL SET OFF. Sec. 1. In what actions a set off may be allowed, 2. What demands may be set otT, STRAYS, TENDER. TITLE XXXIV. TITLE XXXV. Sec. L In what cases, and at what lime, a tender may be made with effect, 2. By whom, and to whom, tender must be made, 3. In what kind of money a tender should be made, 4. What amount must be tendered, 5. In what cases the money must be actually produced, 6. A tender must be unconditional, 7. Of the effect of a tender, {A) Its general effect, \B) Of the effect of a tender, when the contract is for the pay- ment of money, and tender is made before the commence- ment of the suit, (C) Where the contract is for the payment of a sum of money certain, and tender is made after suit is brought, (D) Wlien the claim is for damages arising from a negligent or involuntary tresjmss upon lands, {E) When the suit is on a contract for work and labor, or for the payment of jjroperty, {F) Whe7i suit is brought upon other contracts, or for other wrongs or injuries than those hereinheforc mentioned. TITLE XXXVI. TRESPASS UPON LANDS. Sec. \. Defmition, 2. What amounts to a licence to enter upon land, 3. Of the possession necessary to maintain this action, 4. Of the defence, &:c., XIX Page. 425 427 428 429 431 432 435 436 438 441 441 445 455 456 456 457 457 458 458 458 458 459 459 460 461 463 463 465 467 XX CONTENTS. TITLE XXXVII. Pase. TRUL OF THE RIGHT OF PROPERTY TAKEN ON EXECUTION BY A SHERIFF, 468 TITLE XXXVIII. WORK AND L.^iBOR, 471 PART THIRD, CHAPTER I. PROCEEDINGS IN CRIMINAL CAUSES. Sec. 1. Jurisdiction of justices in criminal cases, 477 2. Of arrests witliout warrant, 478 3. Forms of affidavits whereon to issue common state war- rants, and a search warrant, 479 4. Of the issuing of a common state warrant, and search war- rant, and the forms thereof, 480 5. Of the service and return of a common state warrant, and a search warrant, 482 6. Of the adjournment of the trial or examination, and the proceedings thereon, with forms, 484 7. Of the trial or examination, and of the proceedings when the defendant forfeits his recognizance, 485 8. Of the final recognizance of the accused and witnesses, and of the commitment, with the forms thereof, 48G 9. Of the docket entries, and transcripts, and forms thereof, 489 CHAPTER II. CRIMINAL CAUSES. Sec. 1. Qui tarn actions, and actions for penalties, 491 2. Assault and battery, 492 (A) What is an assault, 492 \B) What is ahattery, 493 (C) Of the defence, and j^unishmenf, 493 3. Fighting, challenging to fight, and affrays, 494 4. Proceedings requiring the accused to enter into recogni- zance to keep the peace, &c. 495 PART FOURTH. FORJIS OF COVEYANCES, AGREEMENTS, «fcc., 601 Sec. 1. General warranty deed, 504 2. A release, or deed of quit claim, 505 3. Mortgage, 606 4. Lease, 606 5. Powers of attorney to sell and lease lands, 607 6. Power of attorney to collect debts, 607 CONTENTS. XXt Page. Sec. 7. Warrant of attorney to confess judgment in the court of common pleas or supreme court, 608 8. Warrant of attorney to confess judgment before a justice of the peace, 608 9. Arbitration bond and award, 508 10. Common bond, with a condition, 510 11. Indentures of apprenticeship, 510 12. Bill of sale, and mortgage of goods and chattels, 512 13. Promissory note, 512 14. Bill of exchange, 512 15. Release and receipts, 513 16. Agreements, 513 17. Last will and testament, 618 PART FIRST. PART FIRST. CHAPTER I. JUSTICES OF THE PEACE. SECTION I. NUMBER OF JUSTICES IN EACH TOWNSHIP. II. TERM OF OFFICE. III. WHEN AND HOW ELECTED. IV. HOW THEIR ELECTION MAY BE CONTESTED. V. OF THEIR OFFICIAL OATH AND BOND, AND THE FORMS THEREOF. VI. RESIGNATION, AND WHEN THE OFFICE IS DEEMED VACANT. Sec. I. NUMBER OF JUSTICES IN EACH TOWNSHIP. This is determined by the court of common pleas when a new township is set off'; but the court at any time afterwards, may in- crease or diminish the number, at their discretion.^ Public notice must be given, in the township, of an application to the court, for an additional number of Justices. ^(1) The decrease or curtailment ordered by the court, is not effected by depriving any one of his commission ; but all continue to act, until the expiration of their term of office.*^ Sec. II. TERM OF OFFICE, A Justice holds his office for the term of three years,'' w"hich, in practice, is computed from the date of his commission. If, however, he continues in office by re-election, he may proceed with matters pending before him, in the same manner as if his former term of office had not expired.® (a) Stat. 498, $ 1-3 (il) Const. Oliio, Art. .S, ij 11. (b) Id. lb. $3. (c^ Stat. 507, $ 10. (c) Id. lb. (1) 'i'lie statute does not dii' ' I, liow or wlicii such notice slioiikl lie given. Notices, set up in three of the most public places within the townsiiip, tliirty days before the term of the court at which the appI'"ution is made, would undoubtedly be sufficient. i 2 JUSTICES now ELECTED. [Ft't, 1, Cll. i^ Sec. III. WHEN AND HOW ELECTEP. When a new township is set off, tlie court of common pleas de- signate the time for the first election;* and in such dase, if there bd no trustees of the new township, tlie clerk of the court gives notice of the time and place of the election, by advertisements, set up in three public places in the township, not less than ten, nor more than fifteen days previous to the election.'' But if there are trustees, they give the notice in the manner hereinafter mentioned. The time and place of holding elections, at all subsequent periods, are determined by the trustees.'^ The clerk of the township, within three days after he receives notice from a justice of the peace of his resignation,*^ and sixty days prior to the expii-ation of the commis^ sion of a justice,* gives written notice to tlie trustees of the town- ship, of the time of such resignation, or expiration of such com- mission. The trustees, upon receiving the notice, and when a va- cancy happens either by death, removal, absence at any one thne for the space of six months, or otherwise, '^ give notice of the time and place of holding an election, by advertisements, set up in three public places in the township, not less than fifteen, nor more than twenty days, previous to the time designated for such election.^ Where the term of office of a justice is about to expire, the election may be held before the vacancy happens.^ The mode of conducting the election of justices of the peace and members of the general assembly are the same.* Sec. IV. — HOW their election may be contested. Any candidate or elector of the township, may contest the elec- tion.'' The contestor must, within six days after the day of the election, make known his objections, to one of the judges of the court of common pleas of the county.' The judge directs the clerk of the court to withhold the return of the election, until the contest is decided.; and he also communicates to the person whose election is contested, the name of the contestor, the points upon which the election is contested, and the time and place within the township, where the same will be determined.'" The day named for the de- termination of the contest, must be within fifteen days from the day of election; at the same time allowing the person elected, five days notice of the trial."' The judge, on the same day that he issues the above mentioned notice, must appoint and issue his summons for three freeholders of the county, who do not reside in the town- ship where the election was held, to appear at the time and place fixed for the trial." The summons may be directed to any constable of the county, who must serve it at least three days before the time appointed for the trial, and return it at the time and place named (a) Stat. 498, $ 1. (li) Slat. 501. $ 12. (b) Id. lb. (i) Id. lb. '^ 13. As to the mode in wliicli the (c) Id. lb$i. election of nicmhcrs of llic General Assembly (d) Id. 501, V 14. is conducted, sec Stat. p. 303. (e) M. lb. $12. (k) Id. 499, $ 4- (f) Id. 408, $2. (1) Id. lb. (^) Id. lb. (m) Id. lb. (n) Id. lb. $5. §3, 4, 5.] JUSTICES ELFXTION, HOW CONTESTED. 3 for the meeting of the freeholders. The judge may issue subpoenas, for witnesses, directed to any constable of the county, who must duly serve and return the same, at the time and place therein named.* If the judge fail to appear at the time and place of trial, any disinter- ested justice of the peace of the county, may perform all the duties hereafter mentioned, as required of a judge."" If the freeholders do not attend, the judge or justice may appoint others in their place.'' They are sworn to try the contest agreeably to the evidence, and the witnesses are examined under oath, and their testimony confined solely to the original points of objection made by the contestor.*" The "election cannot be set aside by the freeholders '•'•.merely be- cause illegal votes were given, if it appear that the person whose election is contested, has the greatest number of the legal votes given, after deducting all illegal votes given, when there is no evi- dence for whom such illegal votes were given, as well as all illegal votes which shall appear to have been given, for the person whose election is contested.'"^ The freeholders sign and seal their decision, and the judge attests it. If by the decision there is a vacancy in the office contested, the judge, within three days thereafter, transmits a copy of the decision to the trustees of the township, who give notice in the manner heretofore mentioned, of another election. If the election is deter- mined to be valid, the judge transmits a copy of the decision, to the clerk of the court of common pleas, who then proceeds as if no con- test had taken place,*^ If the election is not set aside, the judge renders judgment against the contestor for the costs, and issues ex- ecution to any constable of the township. ^ From this judgment, there is no appeal.^ If the election is set aside, the township, by the order of the trustees on the township treasurer, pays the costs. The judge, or justice, and freeholders, each receive one dollar per day, and the witnesses and constables, the same fees as in other cases.^ Sec. V. — or their official oath — bond, and forms thereof. Immediately upon the reception of the commission from the gov- ernor, the person elected must take an oath of office before the clerk of the court of common pleas, or a justice of the peace of the county. If the oath is administered by a justice, he must transmit a certificate thei'eof to the clerk of the court within ten days. (2) (a) Stat. 499, ^6. (c) Id. 500, $7. (e) Id. 500, $7. (b) Id. 500, $9. (d) Id. $8. (g) Id. ^10. (2) Stat. 500, §11. The certificate may be in llie form following: The Slaie of Ohio, County, ss. Be it remembered that on this day of in the year , before me, the undersigned, personally appeared G II , of township, in said county, who made solemn oath tliat he would support the constitution of the Uni- ted States, and the constitution of tl»e state of Ohio; and that as justice of the peace in and for said township and county, he would administer justice witiiout respect to persons, and do equal right to tlie poor and to the rich, and faithfully 4 JUSTICES THEIR OFFICIAL BOND, &C. [P/7. 1, Ch. 1, §6. The person elected must within ten days after taking the oath of office, enter into bond, (to be approved of l)y the trustees of the townsliip,) i)ayab]e to the state of Ohio, with at least two sufficient sureties, in a penalty of not less than five hundred dollars, nor more than three thousand" dollars, at the discretion oi' the trustees, condi- tioned, to well and truly pay over according to law, all moneys which may come into his hands by virtue of his commission.* The bond must be deposited with the township treasurer.* The clerk of the township should enter upon the township records the date, amount, and the names of the obligors of the bond, and the ajiproval thereof by the trustees. (3) If a person elected to the office of a justice, neglect or refuse to enter into such bond within ten days after taking the oath of office, or neglect or refuse to otherwise officially qualify himself, the of- fice becomes vacant, and the trustees must give notice of a new election.** Within thirty days after receiving a commission, the justice must transmit to the clerk of the township the date thereof Sec. VI. RESIGNATION, AND WHEN THE OFFICE IS DEEMED VACANT. The resignation of a justice must be made to the clerk of the court of common pleas, and the justice resigning, must at the same time give notice thereof to the clerk of the township.*^ It has already been stated'' that if a justice neglect or refuse to execute an official bond, with approved security, within ten days after having taken the oath of office, or otherwise neglect or refuse to qualify himself by taking an official oath, the office thereby be- comes vacant. So,' if a justice is absent from the township, at any one time, six months, his office becomes vacant.^ (a) Stat. 500. $11. (c) Id. 501, $12 (p) See ante p. 4. (b) Id. 611. §6, and 500, $11. (d)Id.$14. (g) Stat. 498, $2. and impartially discharge and perform all the duties incumbent upon him as a jus- tice of the peace, according' to the best of his skill and understanding. In testi- mony whereof, I have hereunto set my official hand, the day and year first above written. G H , Justice of the peace, in and for county; or Clerk of the Court of Common Pleas of county. (3) The official bond of a justice may be in the form following: Know all men by these presents, that we, G H , E F , and M T , are held and firmly bound unto the state of Ohio in the sum of thousand dollars; for the payment of which, we jointly and severally bind ourselves. Sealed by us, and dated this day of , in the year of our Lord, one thou- sand eiglit liundred and . Whereas the said G H hath been duly elected, qualified and commis- sioned, a justice of the peace, in and for the township of , and county of , in said state, for the term of three years, from the day of , in the year aforesaid. Now the condition of the above obligation is such, that if said G H shall well and truly pay over, according to law, all moneys v.hich may come into his hands by virtue of his said commission, then this obligation to be void, otherwise to be and remain in full force. Seal. Seal. Seal. CHAPTER II. JURISDICTION IN CIVIL PROCEEDINGS. SECTION r. OF THE GENERAL JURISDICTION OF A JUSTICE, AND HEREIN, (A) In 7vhat cases it is co-extensive with the county. (B) When it extends to more than one hundred dollars. (C) In lohat cases he has no jurisdiction. II. THE CONSEQUENCES OF PROCEEDING WITHOUT JURISDICTION, Sec. I. OF THE GENERAL JURISDICTION OF A JUSTICE. The jurisdiction of a justice in civil proceedings, is in general limited to the township wherein he is elected and resides; and ex- tends to all suits wherein the debt or damages doth not exceed one hundred dollars.* There are many exceptions to this rule, and they will now be considered. {A) In ivhat cases it is co-extensive with the county. The power and jurisdiction of a justice is in general co-extensive with his county to administer oaths; to take the acknowledgment of deeds; to issue subpoenas for witnesses in causes or matters pend- ing before him;'^ to solemn ''?;e marriages;*^ to hear and determine an action of forcible entry and detainer;^ to issue an attachment, and proceed against the etfects and property of a debtor who is not a resident of the county, or has absconded;^ to issue scire facias, and proceed against bail on his docket for the stay of execution;^ to issue executions upon judgments rendered by him;'' to proceed against constables failing to make return, or making a false return, on process issued by such justice; or failing to pay over money col- lected on an execution issued by such justice :' and to preside and act in the absence of a judge of the court of common pleas, upon the trial of a contested election of a justice of the peace. So, if two or more persons are jointly or jointly and severally bound in any contract, or liable for any injury, and reside in differ- ent townships of the same county, a justice of the peace of the township in which either of the persons liable resides, may issue process to any constable in his township, and proceed against all the defendants, to judgment and execution as in other cases.'' (a) Stat. 506, ^1. (e) Stat. 417, ^1. (b) Id. II). (g) Id. 522, $90. (c) Id. 532, $2. (h) Id. II). and $91. (d) 2 Oliio Rep. 255. (i) Stat. 522, 531. (k) Stat. 508,512. 6 JURISDICTION. [Prt. 1, Cfl. 2, So, for a trespass upon personal j)roj)erty, suit may be instituted and judgment had, in the townsliip where the trespass was com- mitted.' tSo, where there is no justice in a townsiiip; or if there be one, he is interested in the subject matter in controversy, or stands in the relation of father, father-in-law, son, son-in-law, brother, brother-in- law, guardian, ward, uncle, nepiiew, or cousin, to either of the par- ties; in such case process may be issued by a justice of an adjoining township of the same county, against the defendant, and a trial, judgment, and execution had, in like manner as if the defendant resided in the township where the action is brought." It is, in gen- eral, only in the cases above mentioned, that a householder or free- holder resident of one township in a county, can be sued in any other township, of the same county;" but a non-resident and also a resident, who is neither a householder nor freeholder of the county, may be sued, if process can be served upon him within the town- shi]) where it is issued. (B) When it extends to more than one hundred dollars. ■* If a debtor appear without process and confess the debt, judg- ment may be rendered on the application of the creditor, for any sum confessed, not exceeding two hundred dollars." On this judg- ment, execution, and proceedings to judgment and execution against the bail for stay of execution, may be had as in other cases.''(l) It may be proper to state here, that when the balance claimed to be due on any open or unsettled account, or on any bill of ex- change, note, or bond, is less than one hundred dollars, the party by whom such balance is claimed, may commence his action before a justice, who may hear and determine the whole controversy, and render judgment for any balance found due, not exceeding one hun- dred dollars.'! (C) In what cases a justice has no jurisdiction. A justice has no jurisdiction (except in an action of trespass) where the title to lands and tenements may be drawn in question.' There are certain injuries to real estate, for which an action of trespass is not the proper remedy, and in which title would be drawn in question, and consequently, suit therefor cannot be brought before a justice. — As, where A builds a mill-dam on his land, and thereby causes the water to flow back upon the lands of B;' or, A erects a tallow furnace, or any other offensive thing, on his land, (1) Slat. 508, $12. (o) Stat. 506. (r^ Stat. 525, $105, 106. (in) Id. $12. (p) Id. 520, 6S5-6. (s) 4 Oliio Rep. 200; but see 7 Oli. Rep. (n) Id. lb. (q) Id. 515, $53. Prt. 2, 230. (1) If judg-ment be confessed for two hundred dollars, the claim against the bail for stay of execution will, by reason of the accruin,^ interest and costs, amount to more tlian two hundred dollars; but the statute seems to authorize the justice to proceed in such case against tiie bail, for the full amount due on the judgment. §1, (B), (C).] JURISDICTION, 7 SO near the house of B as to deprive him of, or lessen his use or eil^ joyment of it; or A places a spout on his building, in consequence of which the water runs on the property, or into the cellar of B, and damages it: in these cases, A makes no immediate or direct attack upon the property of B, but the injury to B arises indirectly and remotely from the acts of A, on his own land. In these and the like cases, an action of trespass would not be the proper rem- edy, as it lies in general only for a direct injury, and as B, in order to recover damages must necessarily show that he had some title to the lands or tenements injured by A, he cannot sue before a justice. A plaintiff, in order to maintain an action, must, on his part, prove certain facts, to entitle him to recover, before the defendant is bound to make his defence. If amongst these facts, the nature of the case is such that it is necessary for the plaintiff to prove or disprove, title to, or possession of, lands in himself or another person, a justice has no jurisdiction over the cause, unless it be an action of trespass. Where, however, it is unnecessary for the plaintiff in the first instance, and in order to make out the cause of action on his part, to show such title or possession; but the defendant, to de- feat the action, sets up such a title or possession in himself, or another, it would seem, from the remarks of the supreme court in the case of Nichol v. Patterson^ that this defence, by the defendant, would not take away the jurisdiction of the magistrate. Thus: — suit is brought on a note, and the defendant sets up as a defence, that he gave the note to settle a supposed trespass committed by him upon the land of the plaintiff by cutting his timber, and that he afterward discovered that the plaintiff had really no right to the land, upon which the timber was cut. Here, the plaintiff, to recov- er, need only produce the note in the first instance; but the defen- dant sets up as a defence, a question of title, and this would not prevent the justice from deciding upon the merits of the defence, and adjudicating upon the whole matter. But, suppose A paid B twenty-five dollars, for a trespass done to B by cutting timber; and afterwards A discovered that B had no right to the land on which A cut the timber, and then brought his action against B to recover back the money. Here it would be necessary for A, the plaintifT, in order to make out the cause of action on his part, to prove that B had no title to the land in question when the trespass was com- mitted, and consequently, a magistrate would have no jurisdiction over such a suit,(2) A justice has no jurisdiction whatever, in actions on contracts for real estate.' If a person agree to sell or convey lands, or to sell or convey a (b; 4 Ohio Rep. 200; but see 7 Ohio Rep. Prt. 2, 230- (t) Stat. 525, 5106. (2) In tne State of New York, if a justice finds on a trial, that title comes in question, the cause is certified by liim to anotlier tribunal. No such law exists in Ohio. If a defendant, by settlnjc up a title in defence could, at his discretion, take away the jurisdiction of a justice, the consequence would be, that when the plaintiff sues for the same cause in the court of common pleas, the defendant, by not setting up title there, would again subject the plaintiff to costs. 8 OF THE DIFFKRENT ACTIONS. [Frt. I, C/i. 3, dower estate, or agree to Itfase lands, or to assign a lease, title bond, or other agreement for stich estate, and afterwards neglect or refuse to perform his contract, no action therefor can be brought before a justice. He has no jurisdiction over a civil action lor an assault and battery.^ So, an action of ejectment, or re])levin, or slander, (whe- ther verbaV-or written,) cannot be brought before a justice of the peace.* No remedy can, in general, be had by an action before a magistrate for the misconduct of officers; nor for a malicious prose- cution.' There are, however, certain cases, in which justices and constables may be pi'osecuted before a justice of the peace. They will be hereafter noticed.(3) Sec. II. THE CONSEQUENCES OF PROCEEDING WITHOUT JURISDICTION. If a justice, in any action over which he has jurisdiction, err in his decision, he is not liable in general on that account, nor are his proceedings void. But if a justice takes it upon himself to issue process and render judgment in an action of slander, or any other action where there is a total want of jurisdiction, his proceedings are entirely void. '-Void things are as no things," and in such case, the justice, and also the constable, who executes the writ, (if he knew by its contents, of the want of jurisdiction,) are wrongdoers, and liable to an action in the court of common pleas."^ Even the consent of parties will not give the justice jurisdiction.* CHAPTER III. OF THE DIFFERENT ACTIONS. Suits before justices of the peace are in general brought to re- cover damages either for the breach of a contract, or for an injury to personal or real property. The names given to the different ac- tions, such as Assumpsit, Debt, Trover, Covenant, &:c., and the principles of law by which they are distinguished, though of great importance to a lawyer, are of little or no practical use to a justice of the peace.*" Although the cause of action should, in general, be stated on the docket, by either copying the bill of particulars, note, or contract filed by the plaintiff, or by briefly noting its contents; yet, it is not necessary, and in general it will be more safe not to designate the name of the action. It is only necessary, therefore, to define in general terms, the different actions. (v) Stat. 525, $106. (a) 3 Caine's Rep. 129. (w) 17 Johns. Rep. 145. 2Salk.G74. 6 Ohio Rep. . ")') 6 Ohio Rep. 388. 146. 15 Johns. Rep. 157. (3) See as to suits against justices, post Parti, Chap. 23, §13. As to suits against constables, see pox t Part 2, Title 12, §4. §1.] ACTION OF TRESPASS ON THE CASE. SECTION I. OF THE ACTION OF TRESPASS ON THE CASE. II. OF COVENANT. III. OF DEBT. IV. OF TROVER. V. OF TRESPASS UPON PERSONAL PROPERTY. VI. OF TRESPASS TO LANDS.(l) VII. OF JOINING DIFFERENT CAUSF.S of action IN ONE SUIT. Sec I. OF THE ACTION OF TRESPASS ON THE CASE. This action, when brought for the breach of a contract, is gen- erally called assiimpsit. It is the common remedy upon all contracts not under seal, whe- ther written or verbal, express or implied. (2) Thus: a person who has expended money for a suffering pauper, after the overseers of the poor have refused to furnish such pauper, may bring this action against the township, and recover the money expended.* So, the plaintiff may recover back money paid by him under an agreement which the defendant is unable to perform,*^ or which he has totally failed to perform,"^ or which by his default could not be performed/ or has been rescinded, or put an end to, by both parties.^ When some act is to be done by each party, under a special agreement, and the defendant, by his neglect prevents the plaintiff carrying the contract into execution, the plaintiff may, in this form of action, recover back the money he has paid under it.^ But if the contract has been in part performed, and the plnintifF has derived any benefit fi'om it, this action cannot in general be maintained.^ Where a party sold a patent-right, which afterwards turned out to be invalid, held, that the vendee, who had derived a benefit from the use of the patent for some time, could not recover back from the ven- der the price which he gave for it.'* Assumpsit will lie on a promise by advertisement to give a reward to any person who will give information which will lead to tlie dis- covery of an offender; for it is a contract with any person who will perform the conditions mentioned in the advertisement; and it is immaterial what motive may have induced the plaintiff to give the information.' So it has been held that assumpsit would lie for the value of goods which the defendant fraudulently induced the j)lain- tiflf to sell to an insolvent person,'' with a view to get possession of them for his own benefit, which purpose he effected; for the defend- ant could not set up as a defence the sale of the goods, which was (a) 5 Ohio Rep, 27 (f ) 7 T. R. 181. (b) 2 Esp. Rep. 639. (g) 5 East 449. (c) 1 Cainc's Rep. 47. 12 Johns. Rep. 363. (li) Bos. <^ P. N. R. 260. 1 Stra. 407. (i) 24 Eur. C. L. Rep. 126. 1 Mau. S( Sel. (d)7T. R. 181. 108. (e) 1 T. R. 133. 5 Jolins. Rep. 85. (k) 3 Taun. 274. (1) As to this action generally, see Part 2, Title .30. (2) As to what is an express or implied contract, sec Part 2, Title 14, ^1. 2 10 ACTION OF TRESPASS ON THE CASE. [jP/7. 1, CIt. 3, induced by his o^vn iraud, and the mere possession of them unac- counted for, was sufficient to raise an assumpsit. This action also Hes to recover damages for torts or wrongs, not committed with force, actual, or implied; or, having been commit- ted with force, where the injury was not immediate, but consequen- tial. It will be readily perceived, that this is the proper remedy for a great A'ariely fif injuries. A few of tliese will be stated. If you are ignorant of the pecuniary cirqunistances of A; and B, knowing that they are bad, represent them to you to be good, in order to deceive you and to induce you to trust A; and you are thereby deceived, and trust him, and sutler a loss: B will be liable to you in this action for the fraud.' But if B made the representation in good faith, w'ith a belief that it was true, no action lies though it W'ere false."* So, if I hold a note or bill of exchange against you, which in my hands is void for w^ant of consideration, but I indorse or otherwise transfer it before it becomes due, so that it is collected against you, I am accountable in this action for the damages. But such transfer must have been before the note or bill was due, for otherwise, your remedy is by a defence against the suit upon it. If your dog, or other domestic animal, wound the person of a man or his child, or cattle, you are liable for the injury in this action: but in these cases it must be shown by the plaintiti' that you knew, or had notice, that your domestic animal was wont to do such mischief." Proof that the owner had notice of a similar mischief having been committed, will b© sufficient, (as if a dog has bitten sheep and after- wards bites a horse,) for the ownoi- ought to have killed him when he had notice of the first mischief." Any person may wound or kill a dog which is found worrying or injuring a sheep or lamb.P If a dog merely chases or bites any other domestic animals, except sheep or lambs, in order to justify killing him, it is necessary to show that he could not be otherwise separated; but if a dog chases and kills one's domestic animals on his own land, he may kill the dog.i So, if the owner of a ferocious and dangerous dog permit it to run at large, or to escape through negligent keeping, any one may kill it, if the owner knew or had notice of its vicious disposition.'' In relation to animals naturally wild, such as bears, &c,, the keep- er of them is accountable for the mischief they dQ, whether he have notice or not, of their vicious disposition.' The plaintiff, in these and the like cases, must exercise due care himself. Thus: I have a right to keep a dog for the protection of my property, and if you go into my yard at night, after my dog is properly let loose, and are bitten, no action therefor can be sus- tained.' A person has a right to keep a fierce dog to protect his property; but not to place it in, or on the approaches to his house, (I) 8 Johns. Rep. 19. (q) 4 Cow. Rep. 351. 1 Saund. 84, and n. (3) (m) 2 East Rep. 92. (r) 13 Johns. Rep. 312. (n) Ld. Ravni. 109. 2 Id. 1583- 2 Salk. 662. (s) Ld. Raym. 1583. 13 Johns. Rep. 339. (t) 9 East 277. 2 Eng. C. L. Rep. 183, 392- (o) Ld. Raym. 606-7-8." 2 Stra. 1264. 1 Esp. 203. (p) Stat. 295. §2, 3, 4.] ACTION OF COVENANT DEBT TROVER, 11 SO as to injure persons exercising a lawful purpose in going along those paths to the house.'*' This is also the pi'oper action to recover damages, when a person has been swindled out of his money or property, by forgery, or by other fraud, or imposition. Sec. II. — OF THE action of covenant. This action can only be brought for the breach of a contract under seal, and is in general, the only remedy for the non-perform- ance of such a contract, when the damages are uncertain, and de- pend in amount upon the opinion of the justice, founded upon tes- timony. It will not lie for the non-performance of the condition of a bond."' It may however h4 brought on a covenant under seal for the payment of inoney, and is*^ie usual remedy upon indentures of apprenticeship, and other articles of agreement under seal, where the contract is for the performance of some act other than the pay- ment of money. Sec. III. — OF the action of debt. This action is seldom brought except for a penalty imposed by statute; upon bonds to which is annexed a condition; upon contracts under seal; and upon recognizances and judgments. As a general rule, however, debt will lie upon any contract whe- ther under seal, written, verbal, express, or implied, where the de- mand is for a sum of money certain, or a sum that is capable of being readily reduced to a certainty; as for goods sold, money lent, paid, had and received, and upon a promissory note, bond, or other con- tract, for the payment of money. The usual remedy upon contracts not under seal, is an action of trespass on the case. There are various penal statutes which authorize some individual or corporation, to sue for the penalties named in them, by an action of debt; and the action of debt is the proper remedy where a stat- ute creates a penalty and authorizes the same to be sued for and recovered befoi'e a justice of the peace, without naming Avhat action shall be brought for that purpose.* Sec. IV. OF THE ACTION OF TROVER. This is a species of the action of trespass on the case, and is gen- erally brought where one person wrongfully converts the property of another to his own use. Wherever trespass for taking goods wilMie; that is, where they are taken wrongfully, trover may be brought; and if tiie whole rights and merits of the case have been discussed and determined in one action, the judgment in it is a bar to the other.'' But the converse of the proposition does not hold; for trover may often be (▼) 19 Eng. C. L. Rep. 394. 1 7 Wend. 496. (a) Stra. 828. 1 Ld. Raym. 682. 2 Black. (w) 1 Ohio Rep. 429. (b) Saund. 47, (k.) Rep. 1101. 12 ACTION OF TUOVER TRESPASS. [P/V. 1, 67/. 3, brought where trespass cannot; as where goods are lent or delivered to another to keep, and he refuses to return them on demand, tres- pass does not lie, but the proper remedy is trover. A judgment for the value of the goods, ;md payment thereof, vests the ownershij) of the goods in the defendant.* An unlawi'ul taking of goods out of the possession of the owner, is a conversion for which trover or trespass may be maintained,'' If there be a complete sale of goods so that the ownership passes to the buyer,(3) he may, if the seller refuse to deliver the goods, sue on the contract of sale, or bring an action of ti'over. If you arc in possession of my pro[)erty by my consent, or in any other rightful manner, and after the property ought to be re-deliv- ered, you refuse to return it, I may sue you on the contract; or may consider the })roperty as converted by you to your own use, and bi'ing an action of trover. In general, where the defendant has become lawfully possessed of property, a demand and refusal to re-deliver it must be proved by the plaintiff, before he can recover in an action of trover; unless he is prepared to prove some facts, or circumstances, which show that the defendant has converted the property to his own use.*^ No demand is in general necessary, if the plaintiff prove that the de- fendant has sold, consumed, destroyed, or misused the property, or done any other act inconsistent with the owner's right,'' The damages assessed in this action should be such, as will make the plaintiff whole, for the loss he has actually sustained by the con- version. In cases where the possession of the defendant is wrong- ful, and there is a wanton conversion ; as by mixing with other pro- perty to destroy its identity, or where the property converted has an ideal vahie to the owner, as family pictures^ or other relics, and but little intrinsic value, exemplary damages are generally given. But where the property is of a determinate value in the market, as money, or common merchandize, the rule of damages is the value of the article, at the time of the conversion, increased by interest, up to the judgment.®(4) Sec. V. TRESPASS TO PERSONAL PROPERTY. This action lies to recover damages for an injury done to personal property, occasioned by actual or implied force; as for abusing, or shooting the animal of another, or intermeddling with his property, in exclusion of his right, etc,^ The person in whose possession property is placed by the owner, may maintain an action and recover damages for an injury done to the property while his interest continues. So, the finder of proper- (a) Stra. 1078. 10 Eng. C. L. Rep. 49. (fl) Eng. C. L. Rep. 422. Wright's Rep. 360. Wright's Rep. 360. 1 Stra. 576. 2 Eng. C. L. Rep. 343. 5 (b) 15 Johns. Rep. 431. Id. 422. 1 Wils. 328. (c) 2Saun(l. 47, (c) (g). (e) Per Wright, J. Wright's Rep. 360— 362. (f) 5 Cow. 323, 7 Id. 735. 10 Mass. Rep. 125. (3) As to when a sale is complete, see Part 2, Title 32, §1. (4) As to damag-es, when the plaintiff has merely a lien on the property, see Part 2, Title 25. §4 7.] TRESPASS ON LANDS. 13 ty; even bare possession without any right, is sufficient to entitle a person to maintain trespass, against a mere wrongdoer.^ Sec. VI. TRESPASS TO LANES. This is the proper action to recover damages', for an illegal entry upon, or an immediate injury to real property. The law relating to it will be the subject of a distinct chapter.(5) Sec. VII. — of joining different causes of action in one suit. If the defendant is indebted to the plaintift' on a contract not un- der seal, such as a due bill, promissory note, bill of exchange, or the like ; and also for goods sold, work and labor, money lent, or by book account or the like, a recovery may be had in one action for the whole. It has already been stated in what cases the action of debt will lie.(6) With the exception of the action of debt for a statutory for- feiture, or penalty, the plaintiff may join in one suit, all the causes of action there mentioned.'' So in the action of trespass to personal or real property, the plaintiff" may recover for several distinct trespasses. So where suit is brought for a breach of a covenant under seal, the plaintiff may in general sue in one action, upon as many sealed instruments as he pleases. But where the action of covenant is the only remedy,(7) the plaintiff can only join causes of action founded upon a contract under seal. If the plaintiff has a right of action for a wrong or injury, not sounding in contract, and also a claim for a debt, he cannot in gen- eral join them in one action. A person cannot, in the same action, join a demand in Ins oicn right^ and a demand, as representative of another; nor demands against a person on his own liability, and on his liability in his repre- sentative capacity.' Thus, an executor or administrator cannot join a claim due the decedent, with one due to him in his own right; nor can a person sue an executor or administrator, for a claim due from the decedent, and join a claim due from the executor or administra- tor himself. Where a claim is due to two or more persons jointly, either on a contract, or for a wrong, they cannot, in the same action, join it with a claim due to one of them individually. A claim which the defendants are jointly bound to pay, cannot be joined in the same action with a claim which only one of the de- fendants is bound to pay. But a sole surviving creditor, (as a sur- viving partner,) may join his surviving claim with one due to him (g) 13 Johns. Rep. 141. 7 Cow. Rep. 752. (i) Bac. Ab., Title, Actions in general, C. (h) 1(1. 462. 1 Chit. PI. 229, ed. 1833. (5) See Part 2, Title 36. (7) See^. 11. (6) See p. 11. 14 OF JOINING DIFFERENT CAUSES OF ACTION. [P/'t. 1, Cfl, 3.] individnuUy; and \\hore I owe a claim as a surviving debtor, I may be sued for tliis, and tdso on a claim due from me alone, in the same suit. A claim duo to husl)and and Avifc, cannot be joined with a debt due to tlic husband alone; but this rule does not extend to a debt which falls due to the wife after the intermarriage; for then the husband may sue in his own name, and consccjuently can join in the suit, a debt due him individually. The above rules in relation to the joinder of causes of action in different rights, are general in their a])plication; extending to all actions arising either from wrongs or contracts.'' The better opinion seems to be, that if no objection be made be- fore the justice to the misjoinder of actions, the court of common pleas, on certiorari, will presume that the defendant consented to it, and the exception will therefore avail nothing, on certiorari.' But it could be taken advantage of on appeal, and the safest course in such cases is, to strike out of the bill of particulars the claim which creates the misjoinder,'" and proceed with the trial of the cause upon matters retained in the bill. (k) Chit. PI. 232-3-4, cd. 1833. (m) ]6 Id. 146. (I) 3 Johns. Rep. 436- 12 Id. 347. CHAPTER IV. OF THE PARTIES TO ACTIONS, AND HEREIN,(1) SECTION I, WHO MUST BE PLAINTIFF. (A) In an action on a contract. (B) In an action for a wrong. II. OF THE CONSEQUENCES OF AN OMISSION, OR MISTAKE, IN MAKING PARTIES PLAINTIFFS. III. WHO MUST BE DEFENDANT. {A) In an action on a contract. (B) In an action for a wrong. IV. OF THE CONSEQUENCES OF AN OMISSION, OR MISTAKE, IN MAKING PARTIES DEFENDANTS. V. OF THE CONSEQUENCES OF THE DECEASE OF PARTIES, WHILE A SUIT IS PENDING. Sec. I. — WHO must be plaintiff. {A) In an action on a contract. With the exception of a negotiable bond, bill of exchange, and promissory note, the person with whom a contract is made, or his executors or administrators, can, in general, alone sue upon it, even though it be payable to order, bearer, or assigns, and transferred. If you enter into a contract under seal with A, and thereby cove- nant with him, to pay B fifty dollars, or to pay A, for the use and benefit of B, fifty dollars; in such case A alone must sue, and B cannot bring, or join in, an action for the money. But, if you, by writing without seal, or verbally, promise A to pay B, or pi-omise A to pay him for the use and benefit of B, fifty dollars; either A or B may sue for the money.* When a contract is made with two or more persons, under seal, verbally, or in writing, the question whether they must sue jointly, or may sue separately, depends, generally, upon the legal interest of the parties in the subject matter of the contract; and upon the terms, or words of the contract, being joint, or joint and several. (2) (a) 1 Chit. PI. 5-6 — 6tli Jim. Ed. 1 Jolins. Rep. l.'^S. 10 Mass. Eep. 287. Tlie law is laid down differently in the old editions of Cliitty's Pleading. (1) As to parties to actions where the suit is by or ag-ainst Husband and Wife, see Part 2, Title 21; — or for trespasses to land, see Part 2, Title 36; — or by or ag-ainst Partners, see Part 2, Title 29, §6; — or by or against Infants, see Part 2, Title 22, ^5. (2) The distinction between contracts which are in their terms, either several or joint only, or both joint and several, will be well understood, by a few examples. 16 OF THE PARTIES TO ACTIONS PLAINTIFF. [P/'Z. 1, CA. 4, The rule may be illustrated as follows: if A and B and C enter into a contract, and A thereby contract with 15 and C, jointly and severally, to pay them tifty dollars; here B and C have a joint inter- est in the whole sum of /iffy dollars, and they should sue jointly to recover it, though the contract, in its terms, is several, as w^ell as joint; but if tha contract was by A, with B and C jointly, that he would pay them twenty-five dollars cach^ they would each have a sej)arate interest in twenty-five dollars, and must sue separately to enforce payment of it, though the contract for the payment is in its terms joint. ^ Where suit is to be brought upon n Joint contract, w^hether under seal, written, or verbal, (3) and two or more persons ought to be made plaintiffs, if living, and some of them are dead, the suit must be brought in the name of the survivors; and the executors or ad- ministrators of the deceased parties have no right in such case to sue alone, or to join with the surviving parties. If all be dead, then the executor or administrator of the last survivor, should sue. If some of those who might have sued, be dead, and the contract IS Joint and several^ sepnratc suits may bo brought by the survivors as well as by the administrators or executors of the deceased par- ties. But, in no case can the survivors and the executors or admin- istrators of a deceased party join in a suit. Where two, three, or more persons have a right to sue jointly and separately, they, or the survivors, must all join or all sue separately. When the plaintiff to the suit is the survivor of another who ought to have joined in the action, if living; it should appear on the docket that the party to the contract who is not joined as plaintiff, is dead. Suits in behalf of the penitentiary should be brought in the name of the Ohio penitentiary, and the plaintiff should be named on the docket and in the process,(4) thus: "The Ohio penitentiary.'"^ (b) 1 Chit. PI. 3. (c) Stat. 628, $19. When the \vords of the contract are, "JVe promise," &.C., or "We jointly prom- ise," &c., or "the said A. B. doth hereby covenant to and with C. 1)., and to and luith E. F., to," &c. ; these or words of tlie like import, make the contract, in its terms, joint. A contract is said to be joint a??*-/ several in its terms, wlicre two or more persons, each for themselves promise, respectively, to do a certain thing", and they also unitedly promise, jointly to do the same tiling-. Thus: "JVe and each of us, promise," &c , or "A. B. and C. D. both covenant, and each for himself, covenants," Sec, or "JVe or cither of us promise," &.C., or "JJ'e jointly and sever- ally, promise," &c. : these, and the like words, create a joint and several promise. Where two or more sign a contract, or note, which in the body of it purports to be made by one person, (as, "I promise," &c.) such note or ag-recment is joint and several. & Mass. Rep. b\^;7 Id. bS. Chit, on Bills, '^'iZ. Where, however, several persons contract tog-ether with the same party, for one and the same act, they are reg-arded as jointly and not individually or separately liable, in the absence of any express words to show that a distinct, as well as an entire liability was in- tended to fasten upon each of the promisors. 1 Salk. 393. (3) The word contract, as here used, and g-encrall}^, in this work, means any promise, express or implied, under seal, in writing-, or verbal. See further, in relation to parties to actions where the suit is upon a promissory note, bill of ex- changee, or neg-otiable bond. Part 2, Title 31, §9. (4) Process is of two kinds; mesne and final. Mesne process includes such writs as are issued before judgment, as a summons, capias, subpana, &c. Mansf. Gram, Final process is such as is issued to carry a final judgment into effect. Id. lb. §1,(A), (B).] OF THE PARTIES TO ACTIONS PLAINTIFF. 17 Suits in behalf of a corporation should be prosecuted in the name given by law to the corporation; thus: '•'•The Ohio Life Insurance and Trust Company." In suits brought by a school district, the plaintiff should be named on the docket and in the process, thus: "The State of Ohio for the use of District No. , in the township of , in county:" filling up the blanks with the number of the district, the township and county."^ Townships in general, sue in the name of the trustees, thus: '■'•The trustees of town- ship," without naming the individual officers.® Agents and servants, with whom a contract is made, cannot in general sue in their own name, but suit must be brought in the name of the person for whom they act,^ In general, when an agent sells goods for his principal, the con- tract is, in point of law, between the principal and the buyer, and the former may maintain the action; but when the agent sells goods as his own, concealing the name of his principal, and the principal brings an action against the buyer, the latter has aright to consider the agent as the principal, for all purposes, and may set off any claim which he had against the agent, or rely on any payment which he has made to him in due course, without notice that he was not the principal.^ "If a person," said Lord Tenterden, "sells goods supposing at the time of the contract that he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal, but agent for a third person, though he may in the mean time have charged the agent with it, he may afterwards recover the amount from the real principal; on the other hand, if at the time of the sale the seller knows, not only that the person who is nominally dealing with him is not principal but agent, and also knows who the principal really is, and notwith- standing all that knowledge, chooses to make the agent his debtor, then according to the cases of Addison v. Gaudesequi,' and Patter- son V. Gaudesequi,'' the seller cannot afterwards on the failure of the agent, turn round and charge the principal, having once made his election, when he had the power of choosing between the one and the other."^ Where the contract is made in express terms, with an agent, as where a note is executed directly to the agent instead of to his prin- cipal, there the agent may sustain an action in his own name." So, where the agent sells the goods of another in his own name, and has a beneficial interest in them, as a commission or per cent, he may sue in his own name." If a contract, note, bond, or bill of exchange, be drawn payable to one in a wrong name, he may sue in his right name and show the mistake." {B) Who must he plaintiff in an action for a wrong. If the owner was not in possession of the goods at the time they (d) Stat. $45. (I) 17 Eng. C. L. Rep. 337. re) 3 Ohio Rep. 227. 5 Ohio Rep. 185. (in) 8 Mass. Rep. 103. (g) 10 Johns. Rep. 387. (n) 1 Chit. P). 8, ed. ]833. (h) 7 T. R. 359.360 ; Cowp. 255 ; 2Campb.24. (o) 3 Eng. C. L. Rep. 229. 5 HnlH. Rrp. 323. (i) 4 Taunt. 574. 10 Co. 122. 10 Mass. Rep. 360. 13 (k) 15 East 62. Johns. Rep. 38. 3 18 OF THE PARTIES TO ACTIONS PLAINTIFF. [Prt. 1, Ck. 4, were wrongfully taken, or injured, or converted, and then had no right to the immediate possession of the goods, he cannot, in gene- ral, sue the wrongdoer,? Thus: goods were leased as furniture with the house and then wrongfully taken; it was decided that the land- lord could not maintain trover against the wrongdoer, for he had not a right to the immediate possession. i In such case the tenant who is liable over to the landlord, should sue. But where lands were leased, and a tree was cut down during tlie term, by a stranger, it was held that the landlord could maintain trover for it; for, when severed from the land, the special property of the tenant was deter- mined, and the landlord had an immediate right to the possession of the tree."" If the plaintiiT was in possession of the goods at the time they were wrongfully taken and converted, this, in general, will be sufficient where the action is brought against a mere wrongdoer, although such plaintiff' 1)6 not the actual owner of the goods, but found them, or had them as bailee, pawnee, or to use, or carry.''(5) But the pos- session of the goods of the master by a mere servant, is deemed the possession of the master, and he alone can maintain an action for their conversion, or for an injury done to them. If a domestic ani- mal run at large, it is considered as in the possession of its owner.* Where two persons are joint owners of property, neither trover nor trespass can in general be maintained by one against the other; be- cause the possession of one, is the possession of his companion.* Thus: wiiere the plain till' and one of the defendants, were members of a friendly society, the funds of which were kept in a box depos- ited with them, and the defendant took away the box and delivered it to the other defendant, who was not a member of the society; it was holden that the plaintiff could not maintain trover for the box.'*' But if one of the joint owners of property destroy it,* or sell it,^ the other may maintain an action of trover against him. For injuries to the lands or tenements of a deceased person, during his life time, the suit should be brought by his executors or administrators;*^ but if done after his death, the suit should be brought by his heirs, as they alone are entitled to a control over the estate. Emblements growing on the land of the deceased, are assets in the hands of the administrator. Crops put in afterwards belong to the heirs.*^ Which- soever is entitled to the emblements, or crops, must sue for an inju- ry done to them. Where the personal property of a deceased person has been in- jured, or converted, either before or after his decease, his executors or administrators may sue therefor, as the personal property goes to (p) 7 Johns. Rep. 337. (v) Co. Litt. 208, (a.) 2 Saund. 47, h, (n.) (q) 7 T. R. 9. 21 En<;. C. L. Rep. 390. (w) 1 T. R. 658. 1 Taunt. 241. 7 Mass. Rep. (r) Cro. Car. 242. 7 Eng. C. L. Rep. 272. 135. Wrislifs Rep. 500. (a) 2 Johns. Rep. 468. (g) 1 Stra. 505. 12 Jolins. Rep. 403. 13 Id. (b) 3 Johns. Rep. 175. 7 Eng. C. L. Rep. 148. 352. 1 Caine's Rep. 14. 2 Taunt. 202. (c) Stat. 669, $90. (t) Wright's Rep. 552. (d) Stat. 344, $31. (5) See further upon this subject, Part 2, Title 9. §"2, (B), 3, (A).] OF THE PARTIES TO ACTIONS DEFENDANT, 19 them and not to the heh's •/ but where one of several persons jointly entitled to damages for a wrong or injury, dies, the action should be brought in the name of the survivor, and the executor or adminis- trator of the deceased cannot be joined, nor can he sue separately.'' ^ If, however, the property of diflerent individuals be taken or injui'- ed, or other wrong be done to them at one and the same time, by a single act, each one must separately sue for the injury done to him- self; they cannot join in one action. But if property so taken or injured was owned by them jointly, then they should jointly sue, and cannot bring separate actions. Sec. II. OF THE CONSEQUENCES OF AN OMISSION, OR MISTAKE, IN MAKING PARTIES PLAINTIFF. If there be any omission or mistake, in making parties plaintiff, and the defendant objects, on that ground, to a recovery, the justice should render a judgment of nonsuit against the plaintiff, who may bring a new action.(7) In all such cases the justice should note on his docket, the reason why the judgment of nonsuit was rendered. A mere mistake in spelling the name of the plaintiff is of no con- sequence, if his real name and the one in which he sues sound alike. Sec. in. AVHO MUST BE DEFENDANT. (A) In an action on a contract. An action upon a contract, Avhether under seal, verbal, or written, must in general be brought against the person who made it, either in person, or by agent. If two, or more, jointly and severally promise to do an act, they may be sued separately or jointly, at the option of the plaintiff.(8) If the plaintiff choose to proceed against them jointly, he must sue all; and cannot, where there are three or more, proceed against two only, unless indeed, the third be dead; in which case his action must be either ngainst the survivors alone, or against each of the parties and their representatives, separately. If he choose to bring separate suits, he may sue as many, or as few, as he pleases, but pay- ment of the judgment against one will be a bar to the other ac- tions.(9) When the contract or promise is joint only, in its terms, instead of joint and several, the plaintiff must sue all the joint contractors, or all the survivors, where one or more is dead. The executors or administrators of the deceased party cannot, in such case, be sued alone, nor can they be joined in the suit against the survivors; but if (a) Wright's Rep. 654. (b) 1 Cliitty's PI. 77, 6th Am. Ed. (6) The survivor must pay to the executor or admini.strator of the decedent, a. just proportion of the avails of the judgment, when received. (7) For tlie reasons of this direction, see note to the 4th section of this chapter. (8) As to what contracts are joint oidy, or joint and several, see p. 15, note 2, (9) Sec Part 2, Title 31, §9, in relation to suits against the parties to notes, bonds, and bills of exchange, which have been indorsed. 20 OF THE PARTIES TO ACTIONS DEFENDANT. [^P/^t. 1, CIl.A^ all the joint contractors be dead, then the suit should be brought against the executors or administrators of" the party who last died.(lO) If a contract be not joint and several, but several only, then sep- arate suits should be brought against the contractors or their repre- sentatives.'^ Statutes creating corporations usually give them corporate names; as, ^"The President and Directors of the Dayton Bank," and author- ize them to sue, and be sued, by the name so given. Where this is the case, the corporate name sliould be strictly j)ursued, in an ac- tion by, or against the corporation. But there are some corpora- tions created, and the statute gives them no corporate name, by which to sue. In such case the corporations may sue and be sued by the general name mentioned in the statute, authorizing them to sue or be sued. Thus: for a township liability, the township should be sued, and process should be issued against "The trustees of township," without naming the individual officers.*^ Suits against a school district should be brought against '•'•The Directors of school district No. , in the township of , in county."® When a person has contracted in the capacity of agent, and that circumstance was known at the time of the agreement, to the per- son with whom he contracted, such agent is not, in general, liable to an action for the non-performance of the contract, but suit should be brought against his principal.'' A party, however, who would relieve himself from responsibility on the ground that he was acting as agent, ought to show that he communicated that fact to the other party, so as to give him a remedy against the principal,** unless the transaction itself showed that the fact of agency was known. The agent becomes personally liable, only where the principal is not made known, or where the agent contracts in his own name, or where he exceeds his authority,' or where money is mispaid to him and he has notice thereof before he pays it over to, or settles for it with, his principal.'' If an agent buy goods in his own name, but for the benefit of his principal, and without disclosing the name of the latter, the principal is also bound, as well as his agent, provided the goods came to his use.' An agent who executes a power by giving a contract or deed un- der senl\ must do it in the name of the principal ; fm- if he execute and seal it in his own name, though he describe himself to be agent ov attorney of his principal, the instrument is void as against the prin- cipal, and he cannot be sued upon it.™ But where an agent makes a written contract not under seal^ and recites his agency therein, and describes himself in the body of the instrument as executing a power, (c) 1 Cliilty's PI. 49, ed. 1833. (i) 2 Kent's Com. (530. 2 Dev. 90 ((I) 3 Ohio Rep. 227. old. 185. 8 Id. 179. (k) 1 Wend. Rep. 173. >e) Stat. (1) 17 Eng. 0. L. Rep.|335. 2Greenl. Rep: 373: (g) 1 Cliilty's PI. 25. (ni) 2 Kent's Com. 631 ; 8 Ohio Rep. 170. (h) 13 Johns. Rep. 58. (10) Altlioug'h the leg-al representatives of a deceased joint contractor, cannot, (unless the decedent were the last survivor,) be sued upon his contract, yet what- ever amount is paid by the surviving joint contractors on his account, may be re- covered by them, from his estate. §3, (A).] OF THK PARTIES TO ACTIONS DEFENDANT. 91 the principal will be bound, although the agent merely sign his own name to the contract,"(ll) If the agent or attorney, in the name of his principal, and not in his own name, execute an instrument, when in fact he had no au- thority to do so, neither the principal nor the attorney can be sued upon it.° But, if on agent, with or without authority, promise or covenant in his own name^ he will be responsible, though he should give himself in the instrument the description or character of agent.? And although an agent who acts without authority is not personally bound by the instrument which he executes, if it contains no prom- ise or covenant on his own part; yet he may be sued for assuming to act when he had no power, and the person injured must recover what damages he hath sustained on account thereof. "^ There is a difference between public and private agents, in regard to personal responsibility. If an agent, on behalf of the government, make a contract, and describe himself as agent, he is not personally liable, even though the terms of the contract be such as might, in a case of a private nature, involve him in such liability."" A party who deals with a public agent is supposed to rely upon the good faith of the government; but such agent may expressly agree to be person- ally responsible, and in that case will be liable.* An agent ordinarily, and without express authority, has not power to employ a sub-agent to do the business, unless with the knowledge and consent of the principal.' And if authority in a matter of mere private concern, be confided to more than one agent, it is requisite that all join in the execution of the power, or the principal will not in general be bound. But where matter of a public trust, or a power for public purposes is confided to three or more, the act of the majority will bind, if all the agents meet together. '^ The power of an agent ceases immediately upon the death of his principal. The relation of master and servant subsists, as well where a la- borer or journeyman is hired to do work, as where an infant is an apprentice under indentures. The master is liable upon contracts, and for injuries done by his servant, if the act be done, or the con- tract be made by the authority of the master. If the servant do an injury fraudulently, while in the immediate employment of his master, the master, as well as the servant has been held liable in damages; and the master is also said to be liable, if the injury pro- (n) 8 Ohio Rep. 170. 8 Pick. Rep. 56. (r) 1 Mass. Rep. 208. 1 T. R. 172. 12 Johns. (o) 2 Keiii's Com. 631. Rep. 444. (p) 7 Cow. Hop. 453. (8) 12 Johiig. Rep. 385. 15 1(1.1. (q) 11 Mass. Rep. 97. 2 Greenl. Rep. 14. (t) 2 Kent's Com. 663. (v) 5 Oliio Rep. 485. (11) If the ag-ent or attorney enter into a sealed contract, in these or the like terms: «*I, A. H., agent for C. D., do hereby promise," &;c. : this is the promise of A. n., tlie ag-ent, wiio may be sued, and not of C. D. the principal. If the contract is tlius: "C. D., by liis agent, A. «., doth hereby promise," etc., or, "C. D. doth hereby promise," etc. the promise is then by C. D., and he alone can be sued upon It. 23 OF THE PARTIES TO ACTIONS DEFENDANT. [Prt. 1, CA. 4 ceed from the negligence, or want of skill in the servant; for it is the duty of the master to employ servants who are honest, skillful, and careful."' The master, however, is only answerable for the h-aud of his servant, while he is acting in iiis business, and not for iraudulent or wrongful acts, or misconduct, in those things which do not concern his duty to his master, and which when he commits he steps out of the course of the service.'' If the servant sell for the master, a piece of clotli, and warrant it to be good; an action upon the warranty lies against the master. If a servant make a contract for his master, under a general au- thority from him to do so, the action must be against tlie master, and not against the servant. If a man send his servant with mo- ney to buy goods, and the servant buy upon credit, the master is not chargeable; but if in such a case, the master had previously been in the habit of purchasing of the seller upon credit, he would be liable, even though the goods never came to his use,'= unless, indeed, he had given notice to the seller, not to trust the servant. For contracts made by the servant in his own name, however, the mas- ter is clearly not liable; nor is he bound to provide, nor can he be made liable for medical attendance and medicine for his servant, unless he employed the physician, or the servant was an apprentice under indentures."^ If a servant employ another servant to do his business, aud in doing it the servant so employed be guilty of an injury, the master of the first servant is liable; Thus: A, contracted with B, to repair a house, and B contracted with C to do the work, and C contracted with D to furnish the materials, and E, the servant of D, brought a quantity of lime to the house, and placed it in the road, by which the plaintift'\s carriage was overturned; it was holden that A was answerable for the damage, on the ground, that all the sub-con- tracting parties were in the employment of A.^ But this princi- ple is only applicable where the nature of the business is such, as to require the agency of subordinate persons, and then there is an implied authority from the master to the servant to employ such persons.^ (B) Who maTj he defendant in an action for a rrrong. We have just seen that a master or principal is liable for any injury occasioned by the negligence, or unskillfulness of his servant or agent, while in the course of his employ. In many cases, the owner of property, and the person in posses- sion of it, have both a right to bring an action against the same person for the same injury. But trespassers are not bound to make a double satisfaction for the same injury; and consequently, the recovery by one, in such case, is a bar to the action of the other.^ And where the owner, or the person in possession of property, (a) 1 Stra. 653. 2 Kent's Com. 259. (c) 1 Bos. and Pul. 404. (b) 8 T. R. 533. 17 Mass. Rep. 508—510. (g) 1 Blac. Com. 428. (c) Arch. PI. 65. (li) Bac. Ab., Title, Trespass, C. (d) 19 Eng. C. L. Rep. 284. §3, (B), 4.] OF THE PARTIES TO ACTIONS DEFENDANT. 23 recovers in trespass or trover, from one who has injured or convert- ed the property, a complete and full satisfaction in damages for the value or injury, it is, in general, a bar to all further actions for the same injury against the same defendant/ Where goods, obtained by trespass, have been sold by the tres- passer, and the owner has received satisfaction and payment from, or otherwise discharged the trespasser, he cannot pursue the goods, nor sue the person to whom the trespasser has sold them.^ But if the owner has not discharged nor sued the trespasser, he can, after demand made, sue any one who has possession of the goods from or through the trespasser, by purchase or otherwise, even though they are held honestly, and without notice of the trespass,'' When two or more have done a wrong, the plaintiff may elect to bring either a joint or separate action against them, and he may have separate actions against each; but can have but one satisfac- tion.'"(13) When one of several joint trespassers or other wrongdoers is sued, and a recovery had against him for the full amount of the in- jury committed by all, and he is compelled to pay the whole, he has no claim whatever, on that account, against the others. The law will not aid them in adjusting the losses which they have sustained by their own misconduct. A person promoting, aiding, or assisting, directly or indirectly, in the commission of an injury to real or personal property, is liable, (though he were not present at the time the injury was committed,) in the same manner, and to the same extent, as if actually engaged in committing the whole wrong." If the person who committed the injury, die before action is brought, a suit may be sustained against his executors or administrators. "(14) Sec. IV. — OF the conseQ-Uences of an omission, or mistake, in MAKING PARTIES DEFENDANTS. When the suit is against two or more, for a wrong or injury which has no relation to a promise or contract, and it is found on the trial that some are guilty and some are not, the justice may render judg- ment against those who are guilty, and acquit those who are inno- cent. But, when the suit is against two or more, upon an account, promise, or any other undertaking, sounding in contract, and the plaintiff, on the trial, fails to prove that all the defendants are jointly liable, or if it appear that one or more should have been joined as (i) Wrigbt's Rep. 744. 2 Saund. 47, k, (n) (m) 2 Ohio Rep. 54. (k) Wright's Uep. 360. .S Wils. .304. (n) 5 Oliio Rep. 251. (I) 5 Ohio Rep. 232. 3 Wils. 304. Wright's (o) Stat. 669, $90. Rep. 360. (13) When a separate actioti is brought against a joint trespa.sser or joint wrong- doer, damages are assessed for the whole amount of the injury committed by all of them. The plaintiff may thus obtain judgment against each, but he can only collect the amount of one of the judgments (which he is at liberty to select,) and costs on the others. 1 Jolins. Itep. 290. (14) See Administrators and Executors, Part 2, Title 4. 24 OF THE PARTIES TO ACTIONS. [Prt. 1, Ch. 4, §5.] defendants, then judgment of nonsuit should be rendered against the plaintiff'. This judgment will not be a bar to a new action.(15) Sec. V, OF THE CONSEQ.UENCES OF THE DECEASE OF PARTIES, WHILE A SUIT IS PENDING. The statutes of Ohio provide no mode, by which executors or administrators can be made parties to suits pending before a magis- trate; nor does any law upon this subject- seem necessary, as the expense incident to the abandonment of an old, and the commence- ment of a new action, is less than the costs of reviving an action for or against the representatives of a decedent. The general practice of justices, where the plaintiff or defendant dies during the pendency of a suit, is to note on the docket the decease of the party,(16) and proceed no further with the cause. This practice seems the best that can be adopted. Each party will, in such case, be liable for the costs he has made. A new action may be insti- tuted by, or against, the executors or administrators of the deceased party, as in other cases. Where, however, there are two or more plaintiffs, or two or more defendants, and one or more of them dies leaving a survivor, the justice may note on the docket the decease of sucli party, and proceed in the cause, and render judgment for, or against, the surviving plaintiff or defendant, and issue execution as in other cases.? (p) 29 Stat. 71, $69. (15) It is always for the interest of the plaintiff to submit to a nonsuit where proper parties are not sued, (except where the action is for a tort or wrong-,) as the defendant, upon an appeal, can take advantag-e of the error. Stat. 513, §44. (16) The entry on the docket may be thus: "This suit abated by the decease of A B ." CHAPTER V. OF THE COMMENCEMENT OF SUITS. Civil suits are in general commenced, by issuing a summons or a capias.(l) A summons commands the constable to notify the defendant to appear at a certain time and place therein mentioned, to answer the complaint of the plaintiff'. A capias commands the officer to take^ the defendant and bring him forthwith before the justice by whom it is issued, to answer the complaint of the plaintiff. If parties appear, agree to wave process, and enter a suit as com- menced, the justice enters the action on his docket, and also states thereon, that the parties appeared and that process was waved.(2) The justice may then proceed with the trial, and render judgment as in other cases."- This chapter will contain a brief summary of the law relating to the following subjects: SECTION I. OF SUITS BY AND AGAINST A NON-RESIDENT OF THE COUNTY OR TOWNSHIP. n. WHEN A SUMMONS, AND WHEN A CAPIAS, THE FIRST PROCESS. III. REQ,UISITES AND FORM OF A SUMMONS, AND THE INDORSEMENTS THEREON. IV. OF THE SERVICE AND RETURN OF A SUMMONS. v. REQ,UISITES AND FORM OF A CAPIAS, AND THE INDORSEMENTS THEREON. VI. OF THE SERVICE AND RETURN OF A CAPIAS. Sec I. — OF SUITS by and against a non-resident of the county or TOWNSHIP. A freeholder or other person residing in one county, may be sued in another, by summons or capias, if the writ can be served upon him in the township where it is issued. So a resident of a county (a) Stat. 511, $29. (1) As to suits commenced by Attachment, see Part 2, Title 8. (2) Form of docket entry where parties enter amicable suit without process: V. ^June 1, 1845. This day came the said A- B— , and the said C D . IJy consent process waved, and at their instance cause entered as commenced. BUI of par- 4 26 OK THK COMMENCEIHENT OF SUITS, IP7I. 1, Ch. 5, who is neither a householder nor frcehokler, may he sued in any townsliip olsuch county, if process can he served upon him within the township wliere it is issued.'' No jierson, however, who is a househokler or I'reeholder, resident ot" a county, can be iiehl to an- swer to a suit hrought against him in any to^vnshi]) of such county ,> other than the one where he resides, except in the cases following, namely:'' FirsL — Wl\cn there is no justice of the peace in the township in which the defendant resides. Second. — If the only justice of tlie peace residing therein is in- terested in the sul)jcct matter in controversy, or stands in the rela- tion of father, lather-in-law, son, son-in-law, brt)thcr, hrothcr-in-law, guardian, ward, uncle, nephew, or cousin, to cither of the parties. In the several excepted cases above mentioned, the })laintirt" may bring his action before any justice of an adjoining township in the same county. Process is issued and served, and proceedings had to final judgment and execution, precisely as if the defendant resided in the township where the action is brought. Third. — If tw^o or more persons are jointly, or jointly and seve- rally bound in a contract, or liable for any injury, and reside in dif- ferent townshi])s of the same county, the plaintitf may commence his action before a justice of the township in which any one of the debtors, or other persons liable, resides. Process is issued against the debtors, directed to any constable of the township in which the suit is brought, and is served upon all the defendants. Execution is issued and executed in the same manner as if the defendants all resided within the township. In actions against partners and joint contractors, suit must in general be brought against all the partners or joint contractors. It is seldom that partners reside in dilierent counties, or that contracts are so worded as to make them joint only, instead of joint and several.(3) But there is no statute which authorizes suit to be insti- tuted before a justice where one or more of those who must neces- sarily be made defendants, reside out of the county. The statute only provides for cases where defendants reside in different town- ships of the same county .'* No difficulty, however, can arise where a contract is joint and several in its terms; for then separate suits against each of the contractors may be brought in the townships of the several counties where they respectively reside. Fourth. — For a trespass upon personal property, suit may be brought in the township where the trespass was committed. If it appears from the docket or the return of the constable, that householders or freeholders, resident of the county, were sued out (I)) See Stat. 508, $12. ticulars filed. [Here stale the cause of action, and proceed according to the forms which will be found in Fart 1, Chap. 18, §2.] For the form of a docket entry, where judg-ment is confessed, see Part 1, Chap. 18, §3. (3) As to what contracts are joint and several, or joint only, see page 15, note 2. §1,2.] OF THE COMMENCEMENT OP SUITS. 27 of their township, the cause for so doing should also, in general, be stated on the docket.*^ Previous to issuing a summons or capias, at the suit of a nonresi- dent of the township, the justice may require him to give security for costs. This the plaiutift' may do by depositing with the justice a sufficient sum to cover costs, or by entering into a recognizance to the defendant, with sufficient surety, resident in the township, conditioned for the payment of all costs that may accrue in the prosecution of the action.*^(4) Sec. II. WHEN A SUMMONS, AND WHEN A CAPIAS, THE FIRST PROCESS. ^No capias ad respondendum for the body can be issued, unless the creditor, his agent or attorney, shall make oath before a judge, justice of the peace, or clerk of the supreme court or court of com- mon pleas, that there is a debt or demand justly due to such creditor, specifying, as nearly as may be, the nature and amount thereof, and establishing one or more of the following particulars: First. — That the defendant is about to remove his property out of the jurisdiction of the court with intent to defiTiud his creditors: or, Second. — That he is about to convert his property into money, for the purpose of placing it beyond the reach of his creditors: or. Third. — That he has property or rights in action, which he fraudulently conceals: or. Fourth. — That he has assigned, removed, or disposed of, or is about to dispose of, his property, with intent to defraud his creditors: or, Fifth. — That he fraudulently contracted the debt or incurred the obligation for which suit is about to be brought: or. Sixth. — That he is about to remove his body out of the town- ship: or, Seventh. — That he has converted his property into money for the purpose of placing it beyond the reach of his creditors: or, Eighth. — That he is not a citizen or resident of this State. (c) Wright's Rep. 709- (d) Stat. 523, §95. (e) Stat, 647, 648, 649. (4) Form of docket entry and recognizance for costs, where the plaintiff is a non-resident of the township. .Sf/er entering on the docket the names of the parties, plaintiff and defendant, and the cause of action, proceed as follows. ■ "The said A B , being a non-resident of the township, was required to give security for costs; and thereupon he and J F , came before me, and acknowledged themselves, jointly and severally to owe and st:ind indebted to the said C D , defendant, in the sum of seventy-five dollars, to be levied upon tiieir respective goods and chatties, lands and tenements, upon this condition, that if said A 15 and J F shall pay all the costs that may accrue in the prosecution of the said action, of said A B , against C D ■, when judgment is rendered therein by me, then the above recognizance to be void, otherwise to be in full force. \^^igntd,'\ A B , seal. J F , seal. Taken and acknowledged before me this day of , A. D. . G !I , Jus. Peace." An action of debt may be brought on the recogniz.ance. 28 OF THE COMMENCEMENT OF SUITS, [P/'t. 1, Ch. 5, The affidavit must be made out and filed before a capias issues. The affidavit may be in the form iollowinp;: A B , V. - D- Tlie State of Ohio, county, township, ss. Before me personally appeared A B , above named; [or, if the fact be 50, saj/: l^efore me personally appeared E II , the authorized agent of A B , al)ove niimcd,] who made solemn oath that there is justly due to said A B , from said C D , a demand amounting to the sum of dollars, cents, or more, which is founded upon [/ie7T, state the nature^ as near as maxj 6c, of the debt or demand.'] And the said affiant further makes oath, that the said C D , [here state some one of the particulars which nill authorize the issuing of a capias^ as he verily oelieves. [(S'/i^?2cf/] A B . Sworn to and subscribed before mc this doy of , A. D., 18—. J H , Jus. Peace. If there be two or more defendants the creditor cannot have a capias unless the causes for issuing the same exist against all the defendants. For instance, if one of the defendants is about to re- move his property out of the jurisdiction of the court, with intent to defraud his creditors, or has done or is about to do any act which would justify an affidavit and the issuing of a capias, the creditor by joining in the action one or more other defendants, against whom the same causes for issuing a capias do not exist, will preclude himself from having a capias. Therefore where there is a joint and several contract, and one of the contractors is liable, upon affidavit filed, to be taken by a capias, the creditor should, if he de- sires a capias, commence a separate suit against the party liable to arrest upon a capias. When the contract is joint only and not joint and several, a joint action, as we have already seen, must be brought; and in such case the facts stated in the affidavit must be true as to all the contractors. The sixth section of the law for abolishing imprisonment for debt, so far as the same requires a bond to be filed by the creditor, is re- pealed.s' Where the person against whom suit is about to be commenced, is at the time privileged from arrest, the justice must issue a sum- mons,** It is proper, therefore, to here name the persons who are privileged from arrest. Members of Congress. — Senators and representatives in Congress are privileged from arrest diu'ing their attendance at the session of their respective houses, and in going to and returning from the same.' (c) Stat. 649, $10. (Ii) Stat. 76, $8. (i) Const. Unite If the cause is adjourned over, on account of the ab- sence of the plaintifl', and the defendant refuses to give bail for his appearance, the justice may direct the constable to hold the defen- dant in custody, until the plaintift" can have notice and time to at- tend and proceed to trial.'' It is not the duty of the justice to give the plaintifl' notice; but he may send a constable with a written notice, who would, no doubt, be entitled to mileage fees, for serving it.*^ Sec II. — for what period an adjournment mat be allowed. The statute provides'' that the constable, according to the com- mand of the capias, shall forthwith convey the defendant before the justice who issued the writ; "and the justice shall thereupon proceed to the trial of the cause, or on application continue the same; and in case of a continuance being granted, the justice shall require the defendant to give bail(l) for his appearance before such (a) Stat. 509, $19 and 20. (r) Id. 399. $24. (b) Id. ib. $20. (d) Id. 509, $18, 19 and 20. (1) See the fourtli section of this chapter, for the form of a recognizance of bail. 7 60 APPEARANCK AND ADJOURNMENTS. [P/7. 1 , C//. 8, justice on the day appointed for the trial of the cause, and for his not departing the court without leave. If the defendant shall fail or neglect to give such bail, the justice shall coinaiit him to the jail of the county, there to remain until the time appointed for the trial,(2) which shall not exceed three days from the return of such capias; or the justice may order the constable to hold such defen- dant in custody, until the plaintilT shall have notice and time to at- tend and proceed to trial." Is it intended, by this statute, to prohibit an adjournment for more than three days, where a defendant asks and shows good cause for a continuance, and is ready to enter into a recognizance? 1 am inclined to believe that in such a case, the cause could be con- tinued over the same length of time, that the statute allows where a summons is the first process.(3) And so, it is believed, a cause could in like manner be continued, if the plaintitf asks and shows good cause for a continuance, and the defendant consents to enter into a recognizance. But when the defendant neglects or refuses to give bail for his appearance, and is committed to jail, the cause must be tried three days from the return of the capias. If the defendant has entered into a recognizance for his appearance, and is unprepared for trial on the day required by his recognizance for his appearance, and the justice grants a further continuance, a new recognizance must be entered into by the defendant. In cases where the defendant has entered into a recognizance, a further continuance cannot be granted for a longer period than is allowed where the suit is commenced by a summons. Sec. III. — HOW to proceed when one or both parties fail to ap- pear ON THE ADJOURNED DAY OF TRIAL. When the adjourned day of trial is fixed at the utmost limit o^ time to which the cause can be adjourned, under the rules men- tioned in the preceding section, and the plaintiff foils to appear, the justice must either try the cause, or enter judgment of nonsuit against the plaintiff. If the witnesses or proofs of the plamtift" are present, the justice should proceed to the trial, otherwise he ought to nonsuit the plaintift'. Where the cause has not been adjourned to such time as pre- vents a further adjournment, the justice may, in case the plaintiff fails to appear, again adjourn the cause, or try it, or render a judg- ment of nonsuit against the plaintiff.^ If the cau^e is again ad- journed, a new recognizance should be taken for the appearance (e) Stat. 510, $25. (2) Question, llow shall the defendant, after he is committed to jail, be broii.s^ht aealn before the justice? A precept, it is believed, coidd be issued to a constable, to receive the defendant from the jailor, and a form is therefore given at the end of this chapter. (3) See the law as to continuances where the suit is commenced by summons, page 47. §3, 4.] APPEARANCE AND ADJOURNMENTS, 51 of the defendant; and if the defendant neglects or refuses to enter into a recognizance, or if he enters into it, the justice must in either case be careful not to fix a period for the trial, beyond that which has been mentioned in the preceding section of this chapter. If the defendant, in the absence of the plaintiff, asks for a con- tinuance, the justice may still exercise his discretion, and try the cause if he thinks it right so to do. If the defendant fails to attend on the adjourned day of trial, the fact of his non-attendance should be noted on the docket. The justice may then proceed in the absence of the defendant to hear and determine the cause. A cause cannot be heard and determined without evidence, and consequently if there be no proof by wit- nesses or othei'wise, of the claim of the plaintiff", the cause must be either adjourned over, or judgment of nonsuit entered against the plaintiff for costs. ^ If, howevei*, a sufficient reason be assigned for the non-attendance of the defendant, the justice may adjourn the cause in like manner, and for a like period, as where suit is com- menced by a summons which has been served. (4) If both parties fail to attend at the time fixed by the adjournment for the trial, the justice may hear and determine the cause; adjourn it over; or render judgment of nonsuit against the plaintifl'. Sec, IV. FORM OF A RECOGNIZANCE FOR THE APPEARANCE OF THE DEFENDANT, WHEN ARRESTED ON A CAPIAS,^ AND THE PROCEEDINGS THEREON. The State of Ohio, county, ss. Whereas, C D has been arrested, and is now in cus- tody, at the suit of A B — ■ — , in an action [here state the kind of action as 7iajned iii the capias.'] Now, therefore, be it remember- ed, that on this day of , in the year of our Lord, one thou- sand eight hundred and , personally came before me, G H , a justice of the peace, in and for the township of , in the county aforesaid, E F , and acknowledged himself to owe [or if Utere he more than one surety., say., and jointly and seve- rally acknowledged themselves to owe] unto the said A B , the sum of [//ere insert dotdAe the amount indorsed on the u-rit'] to be levied of his, [her or their] goods and ciiattels, lands, and tenements, in case default be made in the condition following, which is: That the said C D shall be and appear before me, at my ol^ce, in the township aforesaid, on the day of— , at — o'clock, A. M. [or P, M, stating the lime to which the cause is adjourned for (g) Stat. 509, $21 ; 2 Caine'sRep. 96. (h) Stat 527. (4) As to tlie timo nllowed wlien snit is rommenrcd by summons, see page 47. 52 APPEARANCE AND ADJOURNMENTS. Prt. 1, Clt. 8, trials] in the j-ear of our Lord, one thousand eioht hundred and . to answer to the action aforesaid, and not depart without leave. [S/iimul] E F . Taken, signed and acknowledged, on the day and year aforesaid, before me. C II , .1. p. The ol)jcct of this recognizance is that the defendant nray be forthcoming, wlien nn execution is issued for his body. li the plaintilf intends to issue such execution, he must do it fortiiwith after the judgment is rendered. If lie neglects to do it at that time, the justice may pcrniit the defendant to dejiart, and the bail will be discharged. But if the execution is immediately issued, and the defendant has departed without leave, the return of the constable, that the defendant was not found, will render the bail liable on the recognizance. Suit cannot in general be biought on the recogni- zance, until such execution is returned. An action of (Jebt may- be brought on the recognizance, and a recovery had of the amount of the judgment rendered against the origijial debtor, with interest and costs. Sec. V. — FORM of a mittimus, issued for the commitment of TTIF- DEFENDANT. The State of Ohio townshi]-), county, ss. To the keeper of the jail of the county aforesaid, greeting: Whereas, C 1 ) has been arrested by a capias, and is now in custody of I J , constable", at the suit of A B , in an action of [here stale the kind of action as named in the capias.^ now pending before me, G H— ^ — , a justice of the peace, in and for said township: and whei'eas said action has been adjourned over for trial, until [/lej-e state the time toichirh the suit is adjoi/rned for triaQ and the said C D hath failed to give bail for his appearance at said time appointed for said trial, although ordered so to do. Therefore, in the name of the State of Ohio, I command you to re- ceive the said C D into your custody, in the jail of the county aforesaid, there to remain until the said time of said trial, unless before that time, it shall, by me, be otherwise ordered, or he be otherwise discharged according to law. Given under my hand and seal, this dav of , A. I). 1 8 — . G H , J. p. (Sea/.) FORM OF TfTE RETURN OF THE CONSTABLE. July 5, 1S50 — I committed the within named C D -,to the custody of the within named jailor, with whom I left a certified copy of this writ. Fees , I J , Constable. §5, 6.] APPKARANCE AND ADJOURNMENTS. 53 8eC, VI. FORM OF A PRECEPT FOR THE BODY OF THE DEFENDANT. The State of Ohio, county, ss. To any constable of township, greeting: Whereas, C D was committed to the jail of said county, at the suit of A B , there to remain until [hei^e stale the time to lohich the cause was adjourned for trial,] unless before that time it should be otherwise ordered by me: You are therefore hereby commanded to receive the said C D , from the custody of the keeper of said jail, so that you have his body before me at the time aioresaid, to answer to said action. Given under mv hand and seal, this day of , A. D. 1 8 — . G II , J. p. {Seal.) FORM OF TTIE RETURN OF THE CONSTABLE. Jnli/ 5, 1 850. I have the body of the within named C D . Fees cents. I J , Constable. CHAPTER IX. OF THE ATTENDANCE OF WITNESvSES. SECTION r. FORM OF THE SUBPCENA FOR WITNESSES, HOW SERVED, ANO FORM OF THE RETURN. II. PROCEEDINGS AGAINST A WITNESS FOR DISOBEYING THE SUB- PCENA, WITH FORMS OF PROCESS AND DOCKET ENTRIES. Sec I. FORM OF the subpoena FOR WITNESSES, HOW SERVED, AND FORM OF THE RETURN. When a party to a suit desires the attendance of a witness, the justice issues a subjHtna, in the form following:* State of Ohio, county, ss. To any constable (»f the township of , greeting: You are hereby commanded to summon J P and .1 A , to appear before me, G II , a justice of the ])eacc (a) Stat. 529. 54 ATTENDANCE OF WITNESSES. [Pl^t. 1 , Ch. 9, for said township, at my office, on the day of , at — o'clock P. M. [or A. INI., as the case vio}/ he^ on said day, to give testimony and the truth to say, in a cause penchnu; hetorc me, wherein A B is j)hiintitf, and C D is dcfendant:(l) Hereof fail not, under the penalty of the law; and have you then there thia writ. Given under my hand and seal, this day of , A. D. 18 — . G H , J. p. {Seal.) The subpoena may be served within the county, either by tiie party who procures it, or by a constable. If the party himself serve it, no fees can be allowed. "^ The subpoena should be either read to the witness, or a copy per- sonally served, at the same time showing him the original if he re- quest it. Leaving a copy at the house of the witness, with his family, is not a service; and for so doing the constable is not entitled to fees. If a witness, at the time a copy of the subpornia is served upon him, demand his fees, that fact should be stated in the return. FORM OF A RETURN TO A SUBPCF,NA. Served the within writ personally upon J P , wlw de- manded /lis fees., which were not paid. J A not found. Fees cents. I J , Constable. Sec. II. PROCEEDINGS AGAINST A WITNESS FOR DISOBEYING A SUBPCENA, WITH FORMS OF PROCESS AND POCKET ENTRIES. If a witness foil to attend, upon the service of a subpoena, issued in any action, suit, complaint, or prosecution, either civil or crimi- nal, the justice may issue an attachment against him to compel his attendance.*^ The attachment cannot issue unless the subpoena was personally served; and if served by the party to the suit, the justice should require his affidavit to the service before proceeding against the witness. When a witness, at the time a subpoena is served upon him, de- mands his fees, an attachment ought not to issue until they are ten- (b) Stat. 506, $1. (c) Id. 525, $103. (1) If tlie party to the suit desire the witness to produce papers on the trial, add in tlie subpoena, at tlie (1), "and to bring' with liinfi and prodiice at the time and pUice aforesaid, a certain" deed, &c. [here give a description of ffie deeds, papers, letters, &c. to be produced,] and then proceed as above, ^hereof fail not, &c.,) to the end. §1, 2.] ATTENDANCE OF WITNESSES, 55 dered. If, however, he does not demand his fees until brought up by attachment, it will be no excuse for not complying with the sub- poena, that his fees were not before paid or tendered. If a witness attend at the trial, he may refuse to be sworn, until the party calling him shall have paid his fees.^ A witness subpoenaed, and attending a trial, has a right to his fees; so, if he is examined, though not subpoenaed, he is entitled to fees.* FORM OF ATTACHMENT FOR A WITNESS. The State of Ohio, county, ss. To any constable of township, greeting: I command you to attach J P , so as to have his body before me, G H , a justice of the peace, at my office, in the township aforesaid, on the day of , in the year eighteen hun- dred and , at — o'clock, P. M. [ot^ A. M., the time to ichich the cause is adjourned to trials or forthwith,] to answer the state of Ohio, of a certain contempt by him lately committed, as is alledged, in disobeying a subpoena issued by me and duly served,(2) *and then also to give testimony and the truth to say,* in a cause pending be- fore me, wherein A B is plaintiff, and C D is defendant; and of this writ make legal service and due return. Given under my hand and seal, this day of , A. D. 1 8 — . G H . (Seal) FORM OF RETURN BY CONSTABLE. July 5, 1 850. I have the body of the within named J- Fees cents. Constable. Upon the return of this writ, with the person of the witness, the justice must fine him not exceeding ten, nor less than three dollars, and render judgment, aad issue execution therefor, and for costs, in the name of the State of Ohio, unless the witness can give a rea- sonable excuse for disobeying the subpoena.^ All damages which the party has sustained, for the want of the testimony of the wit- ness, may be also recovered by suit, before a justice, if they do not exceed one hundred dollars. ^ (d) 13 East's Rep. 15 ; 1 Bl. Rep. 36 ; 2 Cow. 845. (<:) Stat. 524, $102. (e) 1 Bin. 46. (2) If the suit is not adjourned over to the time mentioned in the attachment for the appearance of the witness, or the attachment is returnable forthwith, then that part of the form which is between the two *'s may be left out. ATTENDANCK OF WITNESSES. [Prt. 1, CIl. 9, §2.] FOHM OF A DOCKET ENTRT, WHERE AN ATTACHMENT IS ISSUED AGAINST A WITNESS, Tlie State of Ohio, ^ Attachment ajfainst defendant for con- vs. > tempt, etc. in faiHnir to appear and testify J P •. 3 on the day of , 18 — , as duly sub])o>naed to do in the case of A B , vs. C D , then j)en(Ung for trial before me. See docket, ]y<\ji,c \Jtere insert the page contdiiiiiig the, case in ivJric/i the subpaiua issurd^ Jimr 1, 184.5, issued attaxdimcnt, and delivered same to I ,T , for a.p])ear- ance of defendant, June 3, 1845, at 2 o'clock, P. M. to answer the premises. /jiwcS, 1845, 2 o'clock, P. M. The defendant was brought be- fore me, b^v the said constable, and writ returned, "I have the body of the within named J P . " Fees cents. I .T , Constable." Trial had, and finding the premises to be true, and the defendant having no reasonable excuse to assign for disobeying said subjxrna, or for failing to attend as a witness in the above case, it is considered by me that the State of Ohio recover of said defendant, the sum of ten dollars fine, and the costs herein taxed at — dollars cents. Items of cost, . CHAPTER X. OF THE CO-AIPETENCY AND INXC.AIPETENCY OF WITNESSES. SECTIOX I. THE DIFFERENCE BETWEEN THE COMPETENCY AND CREDIBILi- TT OF WITNESSES. II. WHO ARE INCOMPETENT, AND HEREIN, (A) From want of understandings or on account of color. (B) Frotn want of religious principle. (C) Froyn infamy and crime, and how proved. (D) From interest, and how restored. Sec. I. THE DIFFERENCE BETWEEN THE COMPETENCY AND CREDIBILITY OF WITNESSES. A witness may be competent, and at the same time not credible; or on the other hand, he may frequently be credible, but not com- petent. For instance: an individual cannot be admitted to testify in a case in which he is directly interested; and it matters not how small his interest in the result may be, or how exalted his character: the law declares him incompetent to testify. On the other hand, the son of a party interested in a suit will be admitted as a witness, however strong his prejudices may be, and though from his situation no reliance can be placed upon his testimony: the law pronounces him a competent, though he may not be a credible witness. An incompetent witness, therefore, is one who cannot be admit- ted to testify in the cause. If the situation or character of a witness be such that he can Ijc permitted to testify, his credibility, or in other words, the weigiit of his testimony, is still open for considera- tion, but cannot be urged as a ground to exckide him from being examined as a witness. A person is, in general, competent; that is, he may be examined as a witness if, 1st, he has sufficient understanding; 2d, is not a black or mulatto; 3d, nor an atheist; 4th, has not been convicted of an offence punishable by imprisonment in tlie pcnitentiar}'; and, 5th, is not interested in the event of the suit. These several disqualifi- cations will be now examined. 8 58 INCOMPETENT WITNESSES. [Prl. 1, Ch. 10, Sec. II. WHO ARE INCOMPETENT, AND IIEIIEIN, (A) From want of undcrslanding^ or on account of color. Insane persons, idiots and lunatics, during their lunacy, are in- competent witnesses. But a lunatic, in his lucid intervals, when he has recovered his understanding, is coinpetent. A person born deaf and dumb, may, if he h;is sufficient under- standing, give evidence by signs through an interpreter; or if he can write, that is more satisfactory.* Children who are not able to comprehend the moral obligations of an oath, cannot be examined. Their competency does not de- pend upon their age: but upon their apparent sense and under- standing. When a child cannot be sworn, the account it may have given to others, in relation to the subject matter of the suit is inad- missible.'^ Bhrck and mulatto persons are incompetent to testify where either party is a white person."^ As a mulatto is a person partaking equally of white and African blood, it has been determined that a person of a race nearer wdiite than a mulatto, is admissible as a witness, and shall be deemed a white person.*^ {B) From want of religious principle. Universalists, and all others who believe that God will punish perjury, either in this world or in the world to come, are compe- tent witnesses.® But atheists, and those who do not believe in such punishment, are incompetent. The form of administering the oath ought to be such as the witness believes most binding on his conscience: Jews on the Pentateuch: Mahometans, on the Koran, &c. (C) From infamy and o'ime., and how jy?'oved. Persons convicted and sentenced for any crime specified in the act entitled "an act for the punishment of crimes,"^ except such as are described in the third and twenty-fifth sections, are incompe- tent to testify; unless they receive from the Governor a general pardon under his hand and the seal of the. State.'' In order to establish the incompetency of a witness on the ground that he has been convicted of crime, the record of his con- viction and sentence, duly certified, must be produced before the justice.' (a) Per Best, C. J., 14 Eng. C. L. Rep. 238. (e) Willes, 549 ; 2 Cow. Rep. 431, and the cases (h) 1 Phil. Ev. 19. there cited. (c) Stat. 594, $9. (C) Stat. -229. (d) 4 Ohio Rep. 353 ; Wriglil's Rep.578. (li) Id. 2.i8.$41- (1) Rex V. Carcinion, 8 East, 78. §2,(A),(B),(C),(D).] INCOMPETENT WITNESSES. 59 The question, however, may be put to a witness, whether or not he is guilty of the crime; but he is not bound to answer it: and even if he*^ admit that he is guilty, still, as his conviction can only appear by the record, the answer only goes to his credit, and not to his competency.'' {D) From interest, and how 7-estorcd. An interest that disqualifies an individual from testifying must be some legal, certain, and immediate interest, however small, in the result of the cause, or in the record, or transcript of the cause, as an instrument of evidence. In the first place it must be a legal interest in the event of the suit, and not a mere bias arising from prejudice, relationship, friend- ship, or a wish that the party may succeed in whose favor the wit- ness bears testimony.' It must also be such a direct and immediate interest in the event of the cause that the legal consequence of the judgment will be to better the situation of the witness, by either securing an advantage or repelling a loss: he must be either a gainer or loser by the event." So, the witness is interested in the event of the suit and is in- competent, if the transcript of the judgment can be evidence for or against him in any future cause." In general, the transcript can afterwards only be evidence for or against the immediate parties thereto." There is, in general, an implied warranty of title by the seller of property. Therefore, where a suit is brought in relation to property and the ownership thereof is contested by the parties, it seems that a witness who is answerable to one of the parties, in case the title turn out to be defective, is not competent as a wit- ness to support the title ;P but he is competent for either party to prove that he sold the property to one of them.i So, in an action for the breach of the warranty of the quality of property, the person who sold the property to the defendant, and gave a similar warranty on tho.t sale, is a competent witness for the defendant.'' Agents and servants are, in general, competent witnesses for and against their principals and masters. There is, however, this ex- ception to the rule: in an action against the master or principal, for the negligence of his servant or agent, the servant or agent is incompetent to disprove the negligence, since the transcript would be evidence of the amount of damages, (though not of the fact of the negligence,) in a subsequent suit by the master or principal, against his servant or agent, for the same negligence.' Thus: in a suit against the defendant for negligently driving a mail coach (k) 1 Pliil. Ev. 230, n. (b.) (q) 6 Eng. C. L. Kep. 466 ; 4 Taunt. 18. (1) 3 T. R. 33. (r) 5 Esp. 99, and see 1 M. and lloh. 59, cited in (ni; 7 T. n. 60. 3 Flarri. Dig. 2146, (J?m. F.d.) (n) Piiund. n. and Ev. 941. (s) 4 T. R. 5K9 ; 3 Eng. C. h. Rep. 53 ; 14 Id. (o) 3 T. K. 33. 319, 339 ; 6 Esp. 73. (p) 6tar. Ev. 1C46 ; C Johns. Rep. 6 and 8, n. 60 INCOMPETENT AVITNESSES, [P/'^ 1, Ck. 10, against the plaintifT's wagon horse, whereby it died, it was holden that the plaintift""s w'agoner, who was driving the wagon horse at the time it was killed, was incompetent as a witness to prove that the accident happened by the negligence of the plaintiff"/ The heir cannot be a witness in favor of the intestate's estate, unless the estate is insolvent.'' The security of an executor or administrator on his official bond may be a witjiess for or against the executor or administrator;*^ but bail in the action itself cannot be a witness for the party for whom lie is security; nor can the wife of the bail/ The circumstances of the witness standing in the same relation to the subject matter of the suit as the party by whom he is called to testify, is not sufficient to exclude him as a wi ness. The true test is, whether the judgment will be evidence for or against the witness, Thereibre, if separate actions are brought against two persons for the same trespass, in the action against one, the other may be a witness, and will be compelled to testify for or against either party, if called upon to do so.** A witness is competent who believes that he has a legal interest in the event of the suit, when he has not.^ When the witness is equally interested in the judgment, for whichever party it may be given, he is a competent witness for either party.'' So, when the interest of the witness is against the party who calls him, he cannot be objected to on account of such interest by the other party.^ The general rule is, that if the witness be in fact interested in the event of the suit to the amount of even one cent, he is incom- petent.'' -But in cases where corporations of a public nature^ com- prehending the divisions of the State, or institutions for charitable or pious purposes, such as counties, towns, school districts, religious or charitable societies, are parties to the suit, or interested, the members of such corporations, having no individual interest, are competent witnesses.' The trustees of a township, therefore, are competent witnesses when the township is a party to a suit. But when corpoi'ations of a private nature^ instituted for special pur- poses and private gain, such as banks, and rail road, insurance, turnpike, and canal companies, bring suit, the interest of the cor- porators is direct, and they are incompetent to testify in favor of the corporation."" An otlicer, however, of such corporation, who owns no stock, is, like other agents, a competent witness for or against the corporation. The general rule is, that the parties to the suit named on the (a) 4 Ens. C. L. Rep. 164. 307; 2Munf. 148; 4 Mass. 518; 1 (b) Wrisiifs Rep. 343. Camp. 145; 4Ser!;. and Raw. 226. (c) 1 T. R. 163; Wright's Rep. 179. (h) 7 T. R. 480; VVrisht's Rep. 105. (d) 16 Eng. C. L. Rep. 335. (i) 6 Ohio Rep. 243; Wright's Rep. 661. (e) 6 Cow. Rep. 369 ; 16 Eng.C. L. Rep. 402; (k) 5 T. R. 174. 11 Id. '257. (I) Wright's Rep. 374 ; 5 Ohio Rep. 284; sea (g) 8 Johns. Eep.334; 4 Bibb, 445; 1 H. Black. 6 Cow. Rep. 369. (m) 5 Ohio Rep. 234. §2, (D).] rNCOMPETENT WITNESSES. 61 docket, are incompetent witnesses. It seems, however, that a party to the suit may, if willing, be called and examined as a wit- ness by the opposite party. ^ So, when a person has been arbitra- rily made defendant to prevent his testimony, he may, if nothing be proven against him, be acquitted, and sworn as a witness for the other defendants.^ If a person enter into an agreement for the jnayose of excluding his own testimony, (as if a person acquainted with the facts of a case lay a wager upon the verdict, or a prosecutor bet he shall con- vict the defendant,) his competency to give evidence is not thereby destroyed.'' A witness would be competent if he obtained an interest daring the pendency of the suit by the procurement of one party and with- out the consent of the other, by whom he is called,' if the witness and the party^ who thus attempts to smother the testimony, knew or had reason to believe that the witness would be called by the opposite party. But if a witness becomes interested by an ordinary business or other transaction, w'ithout the procurement of a party to the suit, he will be incompetent to testify.'' The interest of a witness, may be divested by payment or release, and his competency will then be restored. If the witness execute a release of his interest, his competency is restored, though the other party refuse to accept the release.^ When the release is from a party to a witness, it may be in the form following: A B , ^ V. > Suit before G H , j. p. C D . S For value received, I do hereby release E F , a wit- ness oflered [or to be offered] by me on the trial of this cause, of any claim or demand which I may now or may hereafter have against him by reason of the determination of this suit, or any matter either directly or indirectly brought or to be brought in question in the same suit, either for or against me: And I do farther release him from all demands connected with or depending upon the sub- ject matter of this suit, or any part thereof, w'hicli I now" or may hereafter have against him. Witness my hand and seal, the day of , A. D. 1 8 . * A B . {Seal.) Sealed and delivered in presence of K L . When the claim to be released is in favor of more than one, joint- ly, a release from one is a release from all. (e) 2 Saund. V\. and Ev. 948; 1 Taunt. 378; (i) Per Grope, J. 3 T. R. 37; 3 Camp. 380, 14 Eiiff. C. L. Rep, 448 ; VVriglit's Hep. Per Kent, J.; 3 Jolins. Casfs, 237 ; 1 7(iG, /'cr Wood, J.; 13 Johns. Kep. 517. Lillell, 107; 4 Serg. and Raw. 222. ((?) B.N. P. 285; 7 Taunt. 607; 2 Eng. C. L. Some of these cases go farther tliani am Rep. 2;V2. willing to lay down the rule in llie text. (h) 1 Stra. 652; 3 Camp. 381, Per Ld. Ellen- (k) Wright's Iiep.452 ; 1 M. and S. 9; 3 Camp, liorougb. 380; 3 Grccnl. 165. (I) Douj. 139. 62 EXAMINATION OF WITNESSES. [P/'t. 1, Ch. 11, FORM OF A RELEASE FROM A AVITNESS TO A PARTY. A B , i V. \ Suit before G // , j. p. C D . ^ For value received, I do hercliy release A B , plaintitT in the above cause, of and from any claim or demand which I now or may hereafter have against him, by reason of the determination of this suit, or any matter either directly or indirectly brought or to be brought in question in the same suit, either for or against him: And I do farther release him from all demands connectc'd with or depending upon the subject matter of this suit, or any part thereof, which 1 now or may hereafter have against him. Witness, etc. CHAPTER XI. OF THE EXAMINATION OF, AND PROOF BY WITNESSES. SECTION I. OF ORDERING WITNESSES OUT OF COURT, II. OF THE MANNER OF EXAMINING WITNESSES THEIR OPINION^ AND RECOLLECTION. III. HOW THE CHARACTER AND CREDIT OF A WITNESS MAY BE IM- PEACHED AND SUPPORTED. IV. OF THE PRIVILEGE OF NOT ANSWERING QUESTIONS. V. PROCEEDINGS AGAINST A WITNESS FOR REFUSING TO TESTIFY. VI. NUMBER OF WITNESSES FOR THE PROOF OF A FACT; AND THE CONSEQUENCE OF SUBPCENAING TOO MANY WITNESSES. Sec I. OF ORDERING AVITNESSES OUT OF COURT. During the examination of a witness, the justice will, on the a]> plication of either of the parties, order any or all of the other wit- nesses in the cause, to go out of court, so as to prevent any combi- nation between them. §1,2.] EXAMINATION OF WITNESSES. 63 Sec. II. OF THE MANNER OF EXAMINING WITNESSES THEIR OPINION, AND RECOLLECTION. The party holding the affirmative, who is in general, the plaintiff', opens the case by an examination of his evidence. If the plaintiff' does not prove, nor the defendant admit, any cause of action, it is unnecessary to examine the evidence on the other side. The tes- timony of the plaintiff' must be confined to his bill of particulars. After he has gone through with his proofs, the witnesses for the defendant are then examined. Each party has the right, in the first place, to examine his own witnesses, without the interference or comments of the opposite party. This rule should be rigidly applied by the justice, as well to preserve order, as to prevent any unnecessary waste of time. After the party calling a witness has fully examined him, the other party has a right to cross examine; and then the party who called the witness, may re-examine him. If, in the progress of the examination, a party object to a question, the witness should be stopped, and the justice decide whether the answer to the question will tend to prove or disprove the subject matter in dispute, or the question be otherwise proper. After the testimony is closed on both sides, and not before, the parties may comment on the law and testimony. A wrangling dispute between the parties or a party and a witness, should never be permitted; it degrades the justice, and excites the bad feelings of the parties. Leading questions, that is, such as instruct a witness how to an- swer in material points, are not in general allowed, except on cross examination: for, to put into the mouth of witnesses the words to be echoed back, or to suggest the answers which the party wishes to get from them, would only serve to strengthen that bias, which they are usually so much disposed to feel in favor of the party call- ing them. Thus: — Is or is not that cow icorth ticenfi/-Jire dollars? Did or did not the defendant say he oiced the plaintiff Jifly dollars and forty-two cents^ or how much did he say? Was this on thejifth of May^ or when was it? These and the like questions, containing in themselves, the place^ kind^ cpaantity^ iime^ price^ or other things sought for in proof, are leading questions which are not to be put. ''What is that cow worth?" "State the conversation you had with the defcndnnt in relation to his owing the plaintiff?' '•'• When was this?" These would iiave been proper questions instead of those above mentioned. Sometimes it is necessary and proper to lead the witness direct- ly to the subject about which you wish him to testify; as is done when the witness is asked to '•'•state the conversation which you had with the defendant^ in j-elation to his oicing the plaintiff.^""^ If the justice finds that the witness is reluctant in the answers he gives, and, in a word, is what is called an unwilling witness; he may then suffer the party who called him to testify, to put leading questions. (a) 4 Wend. Rep. 229, wlicre tliis sulijcct is fully examined. 64 EXAMINATION OF WITNESSES. [Prl. 1, C/l. 1 1, In cross-examinations, leadinfj; questions may be asked, and every thing inquired into, which may have any connection with the facts in the cause. A witness is permitted to testify only to such facts as are within his own recollection. Jf he made a memorandum of the facts, it cannot be received in evidence, but the witness may use it to assist his memory. If the paper bring a fact to his recollection, he may testify; but if he can only testify to the fact from finding it on the paper, and not from recollection, his testin'iony cannot be received. Any paper whatever may be shown to a witness, to enable him to correct a mistake, and, in general, to assist his memor3^ When a W' itness cannot recollect the precise w^ords of a conversation about which he is called upon to testify, he may give his impression as to the substance. *" A witness cannot, in general, be asked his opinion; for his opin- ion is not evidence: he must speak to facts. But in questions of science and trade, or which relate to any profession or calling, per- sons of skill therein may give their opinion in evidence. Thus, physicians, carpenters, and engineers, have been allowed to give their opinion upon subjects connected with their professions or callings. The value of property, and evidence as to general char- acter,"is founded upon opinion, and is proved by it. So in ques- tions relating to the identity of property, a witness can in general only testify as to his opinion and belief, and it is all that the law can require. SfX. III. now THE CHARACTER AND CREDIT OF A WITNESS MAY BE IM- PEACHED, ETC. In order to impeach the credit of a witness, evidence may be given of statements made by him at variance w^ith his testimony on the trial. "^ A witness cannot be asked on cross-examination, a question out of, or irrelevant to, the matter in dispute, with a view to contradict the answer by other witnesses,*^ If a witness gives evidence contrary to that which the party call- ing him expected, the party cannot give general evidence, to show that the witness is not to be believed on his oath;* but he may prove the truth of the facts denied, by other witnesses.^ In relation to the mode of impeaching the character of a witness for truth, the following remarks of Wright., J}" may be here prop- erly quoted: though they must be understood with this limitation: that a witness shall not be permitted to speak from his own know- ledge of the character of the impeached witness, if the latter has acquired a reputation. '•' It has been repeatedly decided by this court, that the proper questions to ask on such examination, are, — (b) 1 Johns. Rep. 99. (e) 3 V.. and C. 749: 10 Enj. C. L. Rep. 220. (c) 2 Ohio Rep. -230. (g) 1 VV. Rl. 3B5: 3 Eng. C. L. Rep. 3771. (d) Wright's Rep. 43. (li) VVrigl.t's Rep. 652. §3, 4.] EXAMINATION OF WITNESSES. 65 '■'■Firsts Have you the means of knowing the general character of A. S. (the witness) for truth? If the answer be in the negative, you can ask no further; but if the answer be in the affirmative, you may ask one or the other of the following questions: '•'• Second^ From your knowledge of his character would you be- lieve him under oath? or, "Is his character as good as men in general? "On cross-examination, you may inejuire into the witness' means of knowing the character. "It is the character, the conduct and habits of the witness, which it is sought to learn, not his reputation alone, or what the world says of hbn. His character may be well known to the witness as infa- mous, such as to render him unworthy of belief, yet the knowledge of it may not have gone abroad so as to affect his reputation. Sup- pose I have raised a child, and know him to be a thief and a liar^ unworthy of belief on oath, but the knowledge of his character has not gone abroad; it is obvious that it is my knowledge which dis- credits the witness, and which should go to the jury. A good rep- utation may be offered to sustain the character, as one means of re- futing the impeaching evidence, for without a good character it must be supposed difficult to acquire a reputation for one." Although you may on cross-examination, inquire into the means of the witness of knowing the character of the impeached witness, yet the party who calls a witness to impeach another witness can- not be permitted to ask him for a statement of the facts upon which he grounds his opinion of the bad character of the impeached witness. Sec. TV. OF THE PRIVILEGE OF NOT ANSWERING Q,UESTIONS. A witness may object to answering a question, which will dis- grace him, or criminate him, or expose him to punishment, or which he thinks will tend to criminate him, though the answer would not directly prove his guilt.'' If a witness says, under oath, that he cannot answer the question without criminating himself, he cannot ^^e compelled to state how or wherein the answer would criminate him, because he might thereby disclose his guilt. But a witness cannot refuse to answer a question arising in the cause, on the ground that the answer may establish the fact that he owes a debt, or is subject to a civil suit. If a witness after being told that he is not bound to answer a question that may criminate him, still chooses to answer it, he is bound to relate every thing relative to the trnnsaction, and cannot afterwards object to any further question that has a tendency to criminate him.' fk) 3Taunt.424; Wnclit'sRcp. 43. fl) M. and M. 47 ; 22 Kng.C. L. Rep. 244 , 12 I'l. 268. 9 66 EXAMINATION Oi' WITNESSKS, [Pl'l. I, C/l. 1 1, §5, 6.] Sec. V. PROCEEDINGS AGAINST A WITNESS FOR REFUSING TO TESTIFY. When a witness is asked a question relating to the case which he is bound to answer, and he refuses to testily, the justice may fine him ony sum not exceeding ten nor less than three dollars, and ren- der judgment in the name of the State of Ohio, and issue execution therefor. The witness is also liable to the suit of the party injured for such damages as he may have sustained for want of the testi- mony,"" wiiich may he recovered before a justice, if they do no ex- ceed one hundred dollars. FORM OF A DOCKET ENTRY, WHEN A WITNESS IS FINED FOR REFUSING TO TESTIFY. The State of Ohio, ^ vsi > Ju7ie 5, 1 850. C D . S C D was duly sw^orn as a witness on the trial before me of the suit of A B , vs. D E ; and now here, before me, on said trial, refuses to testify, not alledging any just or legal cause therefor: Whereupon, it is considered by me, that the State of Ohio recover of said C D , for his said delinquen- cy, a fine oi' Jive dollars, and the costs herein, taxed at tivcnly-Jive cents. G H , J. p. Sec. VI. OF THE NUMBER OF WITNESSES FOR THE PROOF OF A FACT, AND THE CONSEQ,UENCE OF SUBPOENAING TOO MANY WIT- NESSES. The general rule is, that a single witness, if credible, is sufficient for the proof of any fact. When, however, a person is on trial for perjury, one w^itness is not sufficient to disprove the fact sworn to by the defendant, as it would only be oath against oath. In ad- dition to the testimony of one witness, there should be some other independent evidence showing that the fact sworn to was false. If a party order a subpoena for more than two witnesses, to prove the same fact^ he must himself be taxed and pay the fees of the wit- nesses exceeding two to the same fact." If witnesses ai-e subpoenaed and not called and examined by either party, the party who subpoenaed them must be taxed for and pay their fees. But if a defendant confess judgment, or admit be- fore the justice, the claim or demand to be just, or the plaintifl' be- come nonsuit, the fees of the witnesses not examined are taxed and collected wdth the costs of the suit,° as in other cases. (m) Stat. 524, $102. (n) Id. 525, $104. (o) Id. ib. CHAPTER XII. OF PRESUMPTIVE AND HEARSAY EVIDENCE. SECTION r. OF PRESUMPTIVE EVIDENCE, AND HEREIN, (A) Of the nature of presumptive evidence. (B) Presumption of payment. \C) of property. (D) of the death of a person. (E) that a person holds an office. II. OF HEARSAY EVIDENCE. Sec. I. OF PRESUMPTIVE EVIDENCE, AND HEREIN, {A) Of the nature of presumptive evidence. Evidence consists either of positive or presumptive proof. The proof is positive, when a witness speaks directly to a fact from iiis own immediate knowledge; and presumptive, when the fact to be established is not proved by direct testimony, but is inferred from circumstances proved, which either necessarily, or usually attend such fact. It is sometimes impossible to prove directly the fact itself, but proof of other circumstances may be as satisfactory evi- dence of the existence of the fact to be established, as if it were directly and positively proved. It is easier to feel this certainty that a tact exists from circumstantial proof, than to define it. If the remote circumstances offered to be proved be such as may afford a fair and reasonable presumptiom that the fact to be proved exists, they should be received in evidence, and not otherwise. It is obvi- ous that a presumption is more or less likely to be true, according as it is more or less probable that the circumstances proved would not have existed unless the fact which is inferred from them had also existed; and that a presumption is to be relied on no longer, when the contrary is actually proved. As almost any fact is capable of being proved by presumptive as well as by positive evidence, a few of the most useful cases will bo selected, as examples of the nature and application of presumptive evidence. 68 PRF.SUMPTiVr, EVIDENCE. [Py/. 1,C7/. 12, (B) Presumption of •payment. If a landlord give a receipt for the rent last due, it may be pre- sumed that all former rent due by the tenant has been paid.* rroof that the plaintilf and other workmen employed by the de- fendant, came regularly to receive their wages from the defendant, whose practice it was to pay every week, and that the plaintiff had not been heard to complain of non-payment, is presumptive evidence of payment.'' Payment of a bond is presumed, after twenty j^ears have elapsed from the time it was due, and no demand )iiade,' But this pre- sumption of payment may be destroyed by the defendant's admis- sion of the debt, or proof of payment of interest within the twenty years, or that the defendant has resided abroad during the whole of the time, or any other circumstance showing that the bond has not, in fact, been paid.*^ (C) Presumption of property/. Proof of possession is presumptive evidence of ownership; and possession, with the assertion of property, or possession alone, gives the possessor such a property as will, in general, enable him to maintain an action against a wrongdoer. (D) Presumption of the death of a jicrson. As to a person of whom no account can be given, the presump- tion of his being still alive, ends at the expiration of seven yearR from the time that he w^as last known to be living.*^ (JE) Presumption that a person holds an office. Proof that a person is acting in an official capacity, is jtresump- tive evidence that he has been duly commissioned and sworn ;^ and such evidence may, in general, be received, without the production of his commission, or proof that he has taken an official oath, or executed an official bond. Sec. II. OF HEARSAY EVIDENCE. What a third person has said in rebuion to a fact, cannot, in gen- eral, be received as evidence of the fact. If a fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth: hearsay evidence is not, therefore, in general, admissible. (a) 15 Jolinp. Rep. 479. rule seems, in England, io have grown out (b) 1 Esp. Rep. 269 ; 19 Eng. C. L. Rep. 284, of the law in relation to bipamy. In this note ; 3 Camp. 10. State, pcrl-.aps.five years' al>sence of a lius- (c) 1 T. R.270. band would raise the iircsumption of liis M) 2 Ens. C. L. Rep. 314 ; Wright's Rep. 524, decease. Sec Stat. 230 ^7. Per Lane, J. (g) 10 East, 211 ; 14 Eng. C. 1.. Fcp. 274 ; (e) ,6 East, 84 ; 6 Eng. C. L. Rep. 476. Tliis 5 Ohio Rep. 216. §1.(B),(C),(D),(E),2.] HEARSAY EVIDENCE. 69 There are, however, certain instances in which, from the neces- sity of the case, hearsay evidence is received: as, 1. If a witness who was examined in a former action be dead, what he swore at the first trial may be proved in the second action by one who heard him give evidence.'* The person called to prove what a deceased w itness said, must not testify, miless he can under- take to repeat precisely the very words of the deceased witness; and to render what a witness swore on a former trial, evidence, it must have been in a suit between the same parties, and the point in issue the same. That a witness is beyond the reach of a subpoena and cannot be found, will not render proof of what he swore on the former trial, evidence.' 2. Hearsay is admissible evidence of the death of a person.'' 3. The dying declarations of a person who has received a mortal injury are admitted in criming)] prosecutions.' But such declarations can only be received in relation to the circumstances of the mortal blow, when the person making the declaration has, at the time, given up all hope of recovery.'" 4. When it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it^ is admissible for the purpose of showing its true character;" but not for the purpose of proving the act itself. So, the admissions of a person from whom both the parties to a suit derive title to the sub- ject matter in controversy, made by him at or before the sale, are, it seems^ admissible in evidence for or against either of the parties to such suit. Thus: where the plaintiff sued the defendant in tro- vei', for a horse, which one claimed as a gift and the other as a pur- chase, from one Post; it was holden that the declarations of Post, made while he claimed the property, could be admitted in evidence against his own title." In general, however, what a party to a con- tract or transaction, or a party to a suit, said at another or posterior time, cannot be given in evidence by him^ to affect the contract or transaction, but may be called out by the other party to the suit. When one party to a suit proves what the other has said, the latter may then prove all that he said on the occasion; but not what he said in other conversations. The object and scope of this rule is only to let in the whole conversation that transpired on the occa- sion referred to by the witness, so that no mistake may be made in the extent or character of the admission; which might be the case by receiving a part of it in evidence. (h) 17 Johns. Rep. 176. (m) 15 Johns. Rep. 286. (I) 4 T. R. 290 ; VVri?lit's Rep. 3.',1. 648 ; (n) Wright's Rep. 506. GCow. Rop. 162. (o) Wri^lit's Rep. 441 ; hut sec 7 Cow. Ucp. (k) 15Jolin8. Rep. 226. 759, n. (h). (I) 1 Phil. Ev.212. 70 IIKARSAY EVIDENCE. [PW. 1. CA, 1 2, §2,] 5. If a person who has knowledge of a fact, make an entry of it in his books, and that fact is of such a nature that he charges him- self or discharges another upon whom he could otherwise have a claim, such entry will be admissible evidence of the fact contained, after the death of such person, if he could have been examined as to the fact during his lifetime. As, where a (juestion arose as to the age of a child, un entry made by a deceased physician in his book, of having delivered the woman of a child on a certain day, and mark- ed paid^'^wcis admitted as evidence to show -the tiuic when the child was born.P So, to prove the delivery of beer to the defendant, ev- idence was received that a deceased drayman came every night to the clerk of the brew house of tlie plaintiff, and gave the clerk an account of the beer delivered out during the day, which he set down in a book to which the drayman set his hand; this was held good ev- idence of the delivery of the beer.i 6. The memorandum of a deceased father, as to the time of the birth of his son, is evidence to prove the time of his birth."" (p-) 10 East. 109. (0 Snurif]. PI. and Ev. 58. (q) Sec 1 Salk. 285 ; 8 Wheat. 326 ; 15 Mass. 380 ; 3 Pick. 96 ; 20 Jolins. Rep. 168. CHAPTER xm. OF ADMISSIONS. SECTION I. OF ADMISSIONS BY THE PARTIES TO A SUIT. H. BY TENANT, m. BY AGENTS. IV. BY THE WIFE. V. BY PARTNERS. VI. BY A CO-TRESPASSER, AND OTHERS WHO HAVF. ACTED JOINTLY. VII. BY CRIMINALS. VIII. HOW ADMISSIONS MUST BE CONSTRUED. IX. OF ADMISSIONS WHICH CANNOT BE GIVEN IN EVIDENCE AGAINST A PARTY'. Sec. I. OF ADMISSIONS BY THE PARTIES TO A SUIT. It may be proper to repeat here, that a party cannot introduce as evidence, his own declarations; but that if the opposite party prove what he said, he may then prove the wdiole conversation that tran- spired at the time or times mentioned by the witness, but not what was said in another conversation at a different time.(l) The express admissions of a party to a suit, or admissions im- pHed from his conduct, are evidence against him. When the exist- ence of a debt, or particular right, has been asserted in the presence and hearing of a party, which, under the circumstances, naturally called for contradiction on his part, and he, by his silence, acqui- esces, it is evidence that he admits the debt or right. Where a party expressly, or by his conduct, makes admissions, he is at lib- erty to prove the fact admitted to be untrue, and is not concluded by them, unless another person has been induced by them to alter his condition; in w^hich case the party is not permitted to dispute their truth, with respect to that person, in that transaction; but as to third persons who have not been induced to alter their condition on account of his admissions, he is not bound by them, (if he can prove that the admissions were made under a mistake, or were un- true,) but may disprove the facts admitted.* (a) 2 Ohio Rep. 509 ; 17 Eng. C. L. Rep. 449.^ (1) Sec page fiO. 72 OK AI'MISSIONS. [P/7. I, C'A, 13, It ^vill be hereafter seen(2) that in general tlie contents oi' a wri- ting cannot be proved by witnesses: the writing itself should be pro- duced. In cases where the writing should be produced, you cannot give in evidence the admission of the opposite party to prove its contents. It sometimes happens that a jiarty in a conversation in relation to the contents of a written instrument, states facts out of the intrument, which could not be proved by its contents if produced. These admissions of facts out of the instrument may be received as evidence,'' ])ut not to prove the (contents of the instrument, unless the circumstances in relation to the instrument are such as to per- mit verbal testimony to be received of its contcnts,(3) Sec. II. — ADMISSIONS by tenant. A tenant is always considered as admitting the title of the land- lord under whom he holds, and will not be jiermittcd afterwards to dispute it; he may, however, show that his landlord's title had ex- pired after the lease was made, Ijut cannot dispute the right under which he himself is in possession,*^ until he first restores the posses- sion to the landlord,*^ Sec. III. ADMISSIONS BY AGENTS. The admissions of an agent as to acts witliin the scope of his au- thority, and made, ivhen so actings are as conclusive evidence against the principal as if the principal himself had made the admis- sions. But the admissions of an agent, not made at the time of the transaction, but afterwards, are not evidence. Thus: the letter of an agent to his principal, containing a narrative of the transaction in which he had been employed, is not admissible in evidence against the principal. In such case the agent himself is the proper witness."' Before the admissions of an agent can be given in evidence, the fact of his agency must be proved,^ and it must appear that the ad- mission was made with regard to a matter within the scope of the agent's author it v.'' Sec. IV. — ADMISSIONS BY the avife. In general, the admissions of the wife cannot be given in evidence against the husband. Thus: the wife's receipt for wages earned (b) 5 Carr. and P. 542. fc) 4 Taunt. 565 ; 10 Vcs. 123 ; 5 Enj?. C. T.. (c) 3 Ohio Rep. 59. 295 ; 1 Marsh. Ky. Rep. Rep. 454 ; Wright's Rep. 595. 662. 99. 330. 245. (g) 1 Esp. 61 ; 3 Eng. C. L. Rep. 386. (d) Wright's Rep. 216. 576. (h) 17 Eng. C. L. Rep. 133. (2) See Part 1, Chap. 14. (3) 'As to cases in which the contents of n writinpf may be proved by witnesses, see Part 1, Chap. 14. §2, 3, 4, 5, 6, 7.] OF ADMISSIONS. 73 by her, is not evidence against the husband.'' But if he suffer her to transact business for him, she may be considered as his agent, and her admissions and acts in relation to such business, or the hus- band's subsequent acknowledgment or ratification of her acts, will be as binding upon him, as tlie admissions and acts of any other agent.'(4) Sec. V, — ADMISSIONS by a partner. The declaration of one partner, is evidence against his co-partner in matters relating to the partnership. (5) Sec. VI. — admissions by co-trespassers and others, who have ACTED jointly. When there is a unity of design and purpose proved to have ex- isted between two or more wa'ongdoers or trespassers, the acts and declarations of any one of them, at tke time of the transaction, and in furtherance of the general object, may be given in evidence against all: they are partners for a bad purpose, and may be con- sidered as mutual agents for each other. But a community of pur- pose between them must be proved, before evidence can be received of the acts and admissions of one against the others.'' Where the suit is against two or more persons on a joint contract, the admissions of one of the defendants in relation to the subject matter of the contract made at the time of, and within the scope of the transaction, are, in general, evidence against all,' Sec. VII. — admissions by criminals. The confessions of a party, charged with a crime, cannot be re- ceived in evidence-against him, unless they are voluntary. If the defendant has been influenced by any threat, or promise, to make a confession, it cannot be received in evidence. To say that it will be better for him if he confesses, or worse, if he does not, may be sufficient to exclude all subsequent declarations by the prisoner, if such remarks were made under circumstances which induce a belief that they had an influence on his mind. And where a confession has once been induced by such means, all admissions afterwards of the same, or of the like facts, must be rejected, for they have Hi) 2 Stra. 109 I, and sec C T. R. 680. (k) Stark. Ev. 47. (i) Wright's Ucp. 595 ; 4 Wend. Rep. 465 ; (I) 17 Mass. Rep. 222. 1 Esp. Rep. 142. (4) See the preceding' section. Admissions by Agents. (5) As to ucknowlcdgmcnt of debts after tlic puitner.ship is dissolved, sec Part 2, Title 29, ^4. 10 74 OF ADMISSIONS. [Frt. 1, Ch. 13, resulted from the same iiiflucnce."'(G) Admissions made by one, after the transaction, cannot be received against the others. Sec. VITI. — now admission's must be coxstrued. The Avholc of the admission given in evidence against a party, must be ttd^en together, to show clearly Ids meaning; but what credit is to be given to the whole, or to a part, is a ([ucstion for the consideration of the justice, with Whom, perhaps, the assertions of the party in his own favor, may, under some circumstances, have but little weight. If, however, a party admit that he did owe a debt, and at the same time say that he paid it, the admission proves the payment as well as the debt." So when an account of the defen- dant, which had been delivered to the plaintitF, is pioduccd on the trial by the plaintiff, to establisii his own demand, it is evidence as well to prove the debtor as the credit side of the account." So, where suit was brought on a bill of exchange of £200, and the plaintift', in order to prove a waver of notice of non-payment by the defendant, gave in evidence his admission: "I do not mean to insist upon want of notice, but I am only bound to pay £70 — 1 will call to-morrow morning, and see that all is arranged satisfactorily ;" it was held that the plaintiff ought to recover but the £70.p So, where the defendant in an action for money, Vv'hich had been re- ceived from the plaintiff, said, that he received the money, but that it was his due, the whole admission was taken together, and was considered as a denial of the plaintift'^s demand.^ So in trespass for killing the plaintiff's dog, the defendant's confession that he killed the dog, which assaulted him on the highway, was taken to- gether, and held to be a justification of the killing.'' Sec. IX. — ADMISSIONS which cannot be given in evidence. It has already been stated that the admissions of other persons than parties to the suit, cannot, in general, be received in evi- dence.(7) When an admission is made upon a proposition to compromise, and for the purpose of buying peace, or a desire to avoid a suit, it cannot be given in evidence against the party making it. But if the admission of a fact, or right, be made without reference to, and (m) stark. Ev. 49. (p) 12 Enir. C. L. Rep. 267. (n) Saund. PI. and Ev. 38 ; 15 Johns. Rep. 229. (q) 3 Johns. Rep. 427. (o) Taunt. 245; 1 Eng. C. L. Rep. 92; 15 Johns. (r) 10 Johns. Rep. 365; but see 7 Ohio Rep. Rep. 424. Prt. 2, 144. (6) An instance is mentioned in the English State Trials, where two brothers were executed upon a supposed confession, althougli botli were innocent. (7) See page 68. §8, 9.] OF ADMISSIONS, 75 independent of the proposition to compromise, although made at the same time when the compromise was talked of, it will be receiv- ed in evidence.' The admission, to render it incompetent testimo- ny, must be a concession, made not from the consciousness of the truth of the claim, but for the purpose of buying peace/ So an admission made before arbitrators, may be used as evidence on the trial of another cause, and is not to be considered as an admission made with a view to compromise/ Attorneys and counselors at law, are the only persons who cannot be compelled to reveal com- munications made to them in confidence. But matters commu- nicated to an attorney, not in his professional character,^'' or after the termination, and without a view to the object of the suit, and when the character or duties, of an attorney are not called into ac- tion, must be disclosed.'^ (b) 16 Eng. C. L. Rep. 94. (w) 4 T. R. 753 ; Wrislit's Rep. 136. (t) 1 Esp. 143 ; 1 M. and S. 446, 447. (a) 4 T. R. 431 ; 9 Enj. C. L. Ken. 233, (v) 3 C. and P. 219 : 14 Enj. C. L. Rep. 278. CHAPTER XIV. PROOF BY WRITINGS. SECTION I. EXPLANATION OF THE RULE AS TO AVHAT IS THE BEST EVI- DENCE, AND wiip;n it must be produced, n. IN WHAT CASES A AVRITTEN INSTRUMENT MUST BE PRO! UCET> ON THE TRIAL, AND WHEN ITS CONTENTS MAY BE PROVED BY COPY, OR BY PAROL, AVITIIOUT ITS PRODUCTION; AND HEREIN, (A) When the instrument is lost. {B) When it is in tJie possession of the opposite par- ty^ and herein., of the notice to produce it. (C) When the instrument relates to land.^ and is re- corded, (D) When it is a public record. (E) When it consists of a receip)t.^ or account book., or private memorandum. III. IN WHAT CASES THE EXECUTION OF A WRITTEN INSTRUMENT MUST BE PROVED BEFORE IT CAN BE RECEIVED AS EVHENCE; AND WHEN IT MAY BE RECEIVED WITHOUT PROOF OF ITS EXECUTION, AND HEREIN, {A) When the law permits a certified copy to be re- ceived in evidence. (/?) When the opposite party produces the instru- ment^ and claims an interest xuidcr it. (C) When suit is brought upon a deed., promissory note., or bill of exchange., and herein^ of the affidavit and plea in such case. IV. HOW THE EXECUTION OF A WRITTEN INSTRUMENT MUST BE PROVED. V. OF PAROL, OR VERBAL EVIDENCE TO CONTRADICT OR VARY A WRITTEN INSTRUMENT, Sec 1. EXPLANATION OF THE RULE AS TO WHAT IS THE BEST EVI- EVIDENCE, AND WHEN IT MUST BE PRODUCED. The great and leadinoj rule in relation to evidence by writings is this: That the best evidence must be given of which the nature of the thing is capable. [Pr^. 1, CA. 14, §1,2.] PROOF BY WRITINGS. 77 The true meaning of this rule is not, that courts require ths strongest, possible assurance of the truth of the matter in question; but when it is in the power of the party to prove a fact by two differ- ent species of evidence, one of which would be of a better, higher, and more certain nature than the other, the law requires him to produce the higher and better evidence. If it be not in the power of the party to produce the higher and better evidence, then, upon his showing his inability so to do, the law permits him to prove the fact by evidence of an inferior character. It will be found that this rule is not only the source of most of the principles relating to the admission and rejection of testimony, but is the ground-work of most of the arguments of counsel in our courts while witnesses are on the stand. It has been placed at the head of this chapter, because the rules in relation to proof by writ- ten instruments, will fully illustrate its practical application. .SfX. II. IN WHAT CASES A WRITTEN INSTRUMENT MUST BE PRODUCED ON THE TRIAL, AND WHEN ITS CONTENTS MAT BE PROVED BY COPY, OR BY PAROL, WITHOUT ITS PRODUCTION. If a witness be asked a question in relation to a written instru- ment, or its contents, by one party, and the opposite party make no objection, the testimony may be received. But it is a general rule, that whenever a written instrument is necessary to sustain directly or remotely the action or the defence, the party who de- sires to make use of its contents on the trial must either produce the instrument, or cause it to be produced, and cannot give parol or verbal testimony of its contents, if the opposite party object to that species of evidence; for the instrument itself is better, higher, and more certain evidence of its contents than the memory of wit- nesses or a supposed copy. Thus: a writ or a bond, lease or other specialty, or a promissory note, contract or other writing, even if in the possession of a third person, must be produced, and no evi- dence can be received of its contents, if objection be made to such proof So inflexible in this rule, that proof of the admissions of a party made before the trial, as to the contents of an instrument, cannot be given in evidence against him for the purpose of prov- ing the contents of such instrument, if he object thereto:* the instrument itself is higlier and better evidence.(l) There are, however, various exceptions to this rule, which will be now exam- ined. («) 11 Eng. C. L. Rep. 468. 471. (1) See furtlier as to such admissions, png-e 72. PROOF BY VVRITINOS. [^Prt. 1, Cfl. 14, EXCEPTION FIRST. (^4) IV/icii the instrument is lost. If an instrument has been lost, by time or accident, upon proof of such loss and the execution of the instrument, its contents may be proved by the production of a copy, ajid if there be no copy, then by parol or verbal testimony of its contents. It must, in gen- eral, be first shown, in order to establish the loss, that diligent search has been made in those quarters where the paper was likely to be procured. The loss and search for the paper may be proved by the party to the suit wdio desires to make use of it on the trial, but he cannot be permitted to prove either its contents or execution. EXCEPTION SECOND. {B) JVhen the insti-iiment is in the possession of the opposite par'ty^ and herein., of the notice to produce it. When a party to a suit wishes to make use of a paper on the trial, which is in possession of the opposite party, he may be permitted to prove its contents by witnesses, if he has given such party pre- vious notice to produce it on the trial, but not otherwise.'' When, however, from the nature of the suit, the party in possession of the instrument has notice that he is to be charged with the possession of it, as in an actionof trover to recover damages for the wrongful withholding the instrument, a notice to produce it is unnecessary, and its coiitents may be proved by witnesses.*^ In order to render the notice to produce the instrument available, the party ought to satisfy the justice that it is in the hands or under the control of the opposite party. When the instrument belongs to a party, slight evidence is sufficient to raise a presumption that it is in his possession.*^ The notice to produce the instrument ought to be given a rea- sonable time before trial to the opposite party, his agent or at- torney.^ The notice, though in writing, and notices generally, which the statute does not require to be in writing, may be proved by parol or verbal testimony, without the production of the original.^' And when the statute requires a notice to be in writing, a copy compar- ed by the witness w ith the one served, line by line, or compared while the other was read to him, will be received in evidence: they are considered as duplicate originals.'' (b) 11 Eng. C. L. Rep. 503. (e^ 2 Eng. C. L. Rep. 391 ; 3 T. R. 306. (c) 13 Id. 203; 13 Joting, Rep. 92; 171(1.295. (g) 9 Jolins. Rep. 139; 1 Esp. 455; 4 Id. 203- (d) 3 Camp. 502. (li) 7 Enj. C. L. Rep. 440. §2,(A),(B),(C),(D).] PKOOF BY WRITINGS, 79 EXCEPTION THIRD. (C) When the instrument relates to land^ and is recorded. When a party produces a copy of any deed, patent,^ mortgage, or other instrument of writing, conveying, or affecting in law, any lands, tenements or hereditaments, which is certified by the county recorder, under his official seal, to be copied from the records of deeds in his otlice, such copy may be received in evidence in all cases, even if the person who produces it has the original of the copy in his possession.' EXCEPTION FOURTH. (D) When the instrument is a public record. In all cases where the original record is of a public nature, and admissible in evidence, a copy proved by a witness to have been compared by him with the original, or compared while another read the original, is also admissible.'' Copies thus examined and sworn to, of the poll book of an election,' or of aregister of mar- riages, and of record books, and other papers, officially on file and belonging to clerks of school districts, township clerks, &:c., are as good evidence as the originals." There must, in such cases, when the record is from a foreign or sister State, be proof that the record copied was kept under the authority of some statute or law." In many cases, however, copies of such records are admitted, if certified by the person in whose authority the law has placed them. A copy of the records of the courts of this State, attested by the clerk, under the seal of the court, is admissible;" and so are tran- scripts, certified by any justice of the peace of this State, of pro- ceedings had before him during his continuance in office, whether certified during his continuance in office or after the expiration of the same.i' So, a transcript from the docket of an absent justice, certified by the justice having possession of the docket, is admissible in evidence.^ In relation to records or judicial proceedings of the courts of other States of the United States and its territories, a copy is ad- mitted in evidence, attested by the clerk, under the seal of the court, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, (as the case may be.) that the attestation is in due form.'' If the court whose record is certified, have no seal, this fact should appear either in the certificate of the clerk or in that of the judge.' (h) Stat. 271, $22. (o) Wilcox's Praclicc, 78. (i) Stat. 2*57, $10; 6 Ohio nep.32. (p) Stat. 507, $5. (kj 3 Salk. 154. (q) Id. 172, $9. (I) Willea, 424. (r^ Stat. 56, 57, 53. (m) B. S. V. 247. f%) \ I'ct. Rep. 352- (n) 3 Oliio Ucp. 3C8. 80 PROOF BY WUITINGS. [P/t. 1, Ck. 14, In relation however to trnnscripts iVoni the docket of justices ol other States, the rule is somewhat different. Tlie certificate of a clerk or prothonotary of the court of a sister State, of the official character of a justice of the peace in such State, is receivahle licrc to authenticate the transcript of a judgment rendered by such jus- tice.* When a transcript of a justice is certified by him, there must, in general, if the oi)j)osite ])arty require it, be ]iroof of his being a jus- tice, before the transcript can be received in evidence. (2) But when the cetificate of the clerk or })rothonotary is annexed to the transcript, in the manner just mentioned, the official character as well of the justice as the clerk or prothonotary is proved by the certificate itself. So when the copy of a record of a sister State or Territory is duly certified, it is not necessary for the party pro- ducing it to prove the official character of the officers who attest or authenticate it: their certificates arc themselves evidence of their official character. So, the copies of records of the courts of this State are received in evidence, if certified by the proper clerk, un- der the seal of the court, without any proof being retiuired of the official character of the person who has signed them as clerk. EXCEPTION FIFTH. (jE') W/ien the instrument is a receijjt^ or account hooJc^ or jtrivati memorandum. A party may prove a payment, by witnesses, although he has a receipt and does not produce it." So, a party may prove the items of his account without produ- cing his account book; but the book must be produced to enable the party himself to testify.(3) A memorandum of an event or foct made by a witness or party merely to refresh his own memoiy, can neither be received as evi- dence of the event or fact, nor is it necessary to produce it. Sec. III. IN WHAT CASES THE EXECUTION OF A WRITTEN INSTRUMENT MUST BE PROVED BEFORE IT CAN BE RECEIVED AS EVI- DENCE; AND WHEN IT MAY BE RECEIVED WITHOUT PROOF OF ITS EXECUTION. Another rule in relation to proof by written instruments is, that they cannot be admitted in evidence, unless their execution is prov- ed, which is in general done by proof of the hand writing of tiie person w^ho signed them. (t) Wright's Rep. 127. (v) Ros. Ev. 27; 7 Cow. Rep. 334; 4E9p.213; 12 Johns. Rep. 531; Wright's Rep. 240. (2) As to what proof is required in such case, see pag-e 68. (3) See further in relation to account books, Part. 2, Title 2. ^2, (E), 3,(A),(B),(C).] PROOF BY WRITINGS, 81 To this rule there are, among others, the following exceptions: EXCEPTION FIEST. (A) When a certified copii is hjj laiv received in evidence^{A) the ex- ecution of the original need not be proved. EXCEPTION SECOND. {B) When a party producing an instrument under a notice to pro- duce^ claims a beneficial interest under it^ it is not necessary for the party calling for the instrument, to prove its execution.'" But it is otherwise when the party producing the instrument claims no in- terest under it,'' for then its execution must be proved as in other cases. EXCEPTION THIRD. (C) When suit is brought upon a deed^ piromissory note^ or bill of exchange^ and herein, of the affidavit and plea in such case. If a suit be brought upon an instrument, under seal, against the maker of it, or against his assignee or other person, or if a suit be brought upon a promissory note, or bill of exchange, against the maker of it, or against the indorser, or other person, and the parties proceed to trial without an affidavit hied by the defendant, as here- inafter mentioned,(5) the execution of the instrument or indorsement, need not be proved by the plaintiff.'' It will be observed that the cases above mentioned are those only where the suit is brought upon these instruments. It often happens that the parties offer in evidence notes and other instruments of writing upon which the suit is not brought. In such case they must prove the execution of the instruments in the manner hereafter stated.*^ It will also be observed that I have only mentioned instruments under seal, notes and bills of exchange. All other contracts and writings must be proved in the manner hereafter stated, unless they come within some of the exceptions to the general rule, heretofore mentioned in this chapter. It has already been stated that the execution of these instruments must ])e proved if an affidavit is interposed by the defendant. This affidavit must be filed with the justice by the defendant before the cause proceeds to trial. (w) 3 Taunt. 62; 7 Eng. C. L. Uep. 382; 12. Id. 327; 13 Id. 99. (h) Stat. 325. (a) 8 East, 548. (c) Wright's Kep. 595. 690. (4) See pages 79 and 80. (5) See next pug'e. 11 82 PROOF BY AVKITIXGS. [Prt.'i^C/l. 14, Before the defendant files his affidavit denying the execution of the instrument, the justice should enter upon his docket the defen- dant's plea, so as to lay the proper foundation for a prosecution for perjury, in case a false aHiclavit he made. If a suit be brought upon a promissory note, not under seal, or upon a bill of exchange, the plea mny be entered on the docket (immediately after the entry of the return of the summons or capias,) in the forih following: Jime 5, 1 850. Thereupon the defendant now in court, for plea, says that he did not promise, as the plaintilf in the premises com- plains against him, etc.; and filed his affidavit accordingly. If a suit be brought upon a bond, contract, deed, or other instru- ment under seal, the entry of the plea may be thus: Ju7ie 3, 1845. And thereupon the defendant comes, and for plea says, that the instrument upon which this suit is brought is not the deed of A B , [or if the instrument purports to be made by the defeadant^ say^ is not his deed,] and filed an affidavit of the truth of the plea. The affidavit may be in the following form : A T) -\ ' ' Suit pending before G H , j. p. on vs. D- note, [bond, or contract, as the fact may Z>e.] The State of Ohio, county, township, ss. The said C D , makes oath that his plea, entered on the docket of G H , in the above case, is true in substance and in fact; [Jicre add, if the suit is upon an instrument irhich purports to have been made by the defendant, '-and that he did not make the instrument upon which the above suit is founded."' But if the suit is upon an instrument which j^ui'ports to have been made by a person other than the defendant, then say, "and that the said instrument, was not made, [or subscribed, or indorsed,] as it purports to have been, by C D ," stating the names of the persons who appear to have signed or indorsed the instrument, and whose signatures are denied, and then add] as he, said C D , verily believes. [Signed.:] ^ Subscribed and sworn to before me, and filed in the above cause, June 3, 1845. G H , J. p. §3, (C), 4.] PROOF BY WRITINGS. 83 When a plea is entered and affidavit filed, the justice, in entering his judgment, should state in the docket the fact, whether he finds the plea to be true or not; thus: I do find that the defendant did [or did not] promise, etc.; or^ I do find that the said instrument is [or is not] the deed of said C D , etc. The judgment is then entered as in other cases. Sec. IV. HOW THE EXECUTION OF WRITTEN INSTRUMENTS MUST BE PROVED. The execution of all instruments of writing, whether under seal or not, which are offered in evidence by one party, and their exe- cution denied by the other, must, in general, be proved, unless they are such as come within the rules which have been laid down in the preceding sections of this chapter. If their execution be not proved in the manner hereinafter stated, the justice must not, if objected to on that account, admit them as evidence. If there be no attesting witness to the instrument, the hand writ- ing of the party to it may be proved by a witness who has a know- ledge of it, from having seen him write, or has become acquainted with his hand writing by a correspondence with him, upon which the witness has acted.'' The execution of all written instruments, subscribed by an attest- ing witness, must in general be proved by such witness. Even the confession of the party, that he executed the instrument, will not be received, unless the absence of the subscribing witness is satisfac- torily accounted for.'' When the attesting witness is dead, or blind, or insane, or by reason of the commission of crime, is incompetent, or is absent from the county, the execution of the instrument may be proved by evidence of the hand writing of the attesting witness, without proof of the hand writing of the maker of the instrument;'' or by proof of the hand writing of the maker of the instrument, where proof of the hand writing of the attesting witnesses cannot be conveniently procured.''(6) Where the attesting witness was (a) 4 Esp. 37 ; 12 Eng. C. L. Rep. (i. (c) Roscoc's Ev. 65. (b) 3 Oliio Rep. 46. (d) 3 Oliio Rep. 46 ; 2 Ohio Rep. 56. (6) Any errors In the ubove remarks may be cori-ectcd by the following' opinion of tlie Supreme Court, in the case of Clark vs. Boi/d, 2 Ohio Hep. 56. " "Wlien the subscribing- witness is dead, or absent, tiic court iiave usually admitted proof of the hand writing- of the ohlig-or, but it does not follow, that this proof must be required in addition to proof of the hand writing- of the witness, nor is the exclu- sion (jf proof of tlie hand writing of the witness, a necessary consequence of ad- milt mg the one, where the other cannot lie obtained. Under proper circumstances both modes of proof may be admissible, and either may be suUicient." 84 PROOF BY WRITINGS. [P/7. 1, Ck. 14, incompetent at the time of the nttestation, IVom interest, infamy, or any other cause, or where a fictitious person has been inserted as a witness, or where the attestation was made without the iaiow- ledge or consent of the parties, it is the same in effect, as if there had been no subscribing witness, and it will be necessary to prove the hand writing of the party who executed the instrument.'' But if the party, knowing the witness to be interested, requests him to attest the instrument, he cannot afterwards object to his compe- tency. ^ When the witness becomes interested after the attestation, proof of his hand writing is generally received.'' When an attesting witness denies his signature, other witnesses may be called to prove his hand wa'iting.' Knowledge derived from a comparison of hand writings merely, forms no evidence, and cannot be received. A person's knowledge of hand writing, is not unlike his knowledge of the countenance ^f one whose face he knows. Sec. V, OF parol or verbal EVn)ENCE to CONTRAnCT OR VARY A AVRITTEN INSTRUMENT. If parties have entered into a contract in writing, and the writ- ten contract is ditTerent in any part from the one they at the time intended to make, verbal or parol testimony, cannot be received for the purpose of proving a mistake, or the real intention of the parties. They have reduced their contract to writing, and by it they must be bound. ""(y) If upon reading the instrument, the jus- tice is at a loss how to construe it, on account of the uncertainty and ambiguity of its terms, this will not justify him in receiving parol testimony of the intention of the parties, so as to clear up the uncertainties or ambiguities v.'hich are .apparent on the face of it. But there is a kind of uncertainty or ambiguity not apparent upon the face of a pnper, but arising from fncts out of the instrument, which may be explained by parol testimony. Thus, if a person agrees to build a house for A, upon his farm, called Blackacre, and it is proved by parol, that A had two farms called Blackacre, hero would be a fact out of the instrument, which would render what was before clear on the face of the instrument, ambiguous and un- certain; and it being an ambiguity not apparent upon, but indepen- dent of the instrument, it may be proved which farm called Black- (c) 5T. R.371. (k) 1 Olio Rpp. ISft; 4 Id. 34G ; 6 1(1.247; Wriglit'§ (K) 3 Camp. 196. liep. 327. 597. 602; 4 Kawle Rep. 138 ; \i (h) 1 Stra. 34. Peterd. 10», note. (I) 2 Oliio Rep. 13. p — — (7) If a word has acquired a particular meaning in a certain trade, tliat mean- ing' will be applied to it in construing- a written contract respecting' the trade, and evidence may be received in relation to its meaning"; but it must be distinctly proved that the word has acquired a professional or technical meaning-. 12 Eng. C. L. Hep. 245. Wright's Hep. 143. ^5.] PROOF BY WRITINGS. 85 acre was intended by tlie parties to the contract. So, for the same reason, if a deed be made to one by n;ime, and there are two of the same nnme, it may he explained to show wlio was intended.' An ambii^uity, then, which appears upon the face of the writing, cnnnot be explained by parol testimony, but must be explained hy the in- strument itself, taking into view all its parts. If it be not thus ca- pable of any explanation, it is void for uncertainty. An ambiguity however, whicli does not appear upon the face of the instrument, but is made to appear by connecting /.'ffro/ testimony with some fact Inferred to in the instrument^ may be explained by parol testimony; the evidence to clear up the ambiguity, being of the same nature with that which made the ambiguity appear. There may be certain facts in relation to an instrument, which may be proved by parol, because they do not contradict nor vary the instrument. Thus, when no consideration is mentioned in a deed, a consideration may be proved by parol. (8) And, as an in- strument takes effect, not at its date, but at the time it is delivered; a party may prove when it was delivered,"" or that it never was delivered, or that it was not intended to be delivered. And for the same reason, if a contract in writing, or under seal, or by parol, be made, and aff^ricards the parties agree verbally, or otherwise, to enlarge the time for its performance, or to change its terms, or to correct a mistake, such subsequent agreement will be binding," and the parties should in general sue upon it, and not upon the original contract. An agreement, however, under seal, cannot be revoked or discliarged^ hj a verbal agreement. Executory contracts, in wri- ting, but not under seal, may be discharged by a subsequent parol agreement; but after breach they cannot, it is said, be discharged, except by payment, or release under seal, or other sealed instru- ment, or by an accord and satisfaction." If there be a written agreement to do an act, or pay money at a certain time, parol proof cannot be received to show that when the contract was made., it was intended that the act should be done, or money paid, at a different time, or in a different manner, for this, as we have already seen, would be changing, by parol testimony, the terms and operation of the original agreement, which cannot be done.P These rules do not apply to a common receipt for money paid, which may be explained, varied or contradicted by parol evidence. i (I) Wrialu's Rep. 50. (o) 9 Fnc. C. L. Rep. 254 ; Rul. x\. P. 152 ; Roi. (in; 14 Johns. Rep.210; 10 Kn^. C. L. Rep. F.v. 11, 12. 3;3I ; Wri,'lii's Kep. [\,\.\. (p) 8 Johns. Kep. 146 ; 7 Mns=. Rop. SIR. (n) 3 Jol.tis. Rop. .',2!J; 1 M. and P. 21 ; (q) 12 Johns. Rpp. 5.U ; b Ol ie,] in pursuance of the notice hereto attached, and at the time and place therein mentioned, \llere state which of the parties^ or their agents^ was present?^ (6) Facts often become material in one stage of a cause wiilcli would be irrele- vant and immaterial in another. The object of a deposition or question may be to prove such facts, or to prove what a third person said in relation to a matter appu- renttij remote from the issue, for tlie purpose of impeacliing' the testimony of aucii third person. How then sliall tlie officer who takes a deposition settle advisedly even tlie question as to hearsay evidence? Tlie loosfiicss of practice, f;-ro\vinp;- out of the rule laid down in the text, is pre- vented in Kiitrland and some of the United States, by requiring- written intrrrug-a- toi-ies to be filed in the cause, upon whicli, alone, witnesses are e.xamincd. In this State, ohjfctions are m;ide to the competcnry «)f tl»e witness and to sucli parts of the diposition as contain ii-relevant or inipro|)ir test'mony, at the time the d( po- B-tion is off.-1-ed in i v'di-nce on the trial. If the w tncss, whose d( ptisition has been taken, be interested in the event of the suit or otl.eiwise incompetent, no notice whatever is taken tif liis deposition, but the same is ruhd out. That part of a deposition which contains irrelevant or improper testimony, will be stricken out on the tr.al. ^3.] EEPOSITIONS. 91 W S , of the county of , of lawful age, being first duly sworn, \_or affirmed,] by me, as hereafter certified, deposes as follows: QuKSTlON — Answer, [//ere insert as ?iearlt/in the words of the witness as possi- ble {so as at the sami time to he inteUigible^) the testimony of the wit- ness. If any questions are asked of the ivitness by the party against whom the tesliinony is to bz usef say,'] Upon cross-examination by the defendant, [rjr plain tift', as the case may 6/;,] the said W S further says, that, '[here insert the testimonij on the cross-examination.^ [^If any paper is referred to by the witness it should be marked by a letter., thus: ''"A,"' caid annexed to the deposition ; and the witness can refer to and identify it as the ''-paper hereto annexed, marked A."] After the testimony of the witness has been written down, it should be then carefully read to him, and corrected as he may desire. The witness will then sign his name at the end of his deposition. If there are two or more witnesses, the justice will commence the next deposition immediately below the first, in the form following: Also, T S , of county, and of lawful age, being first duly sworn, [or aflirmed,] as hereafter certified, deposes as follows: Question — Answer, [here insert the testimony as heretofore directed.^ and then the witness will sign his name to his deposition.] Each witness having subscribed his own deposition, the justice will in all cases annex at the end of the whole his certificate, which must be in the form following: I, G II , a justice of the peace in and for the township of -, in the county of -, Ohio, do hereby certify that the above named [here insert the names of all the ivituesses] were by me first duly sworn, [or afiirmed,] to testify the truth, the whole truth, and nothing but the truth, and that the foregoing depositions by them respectively subscribed, were reduced to writing by me, [or if re- duced to writing by any other person., Jiere name the person^] and were taken at the time and place specified in the inclosed notice. In testimony whereof, I have hereunto set my hand, this day of , in the year . [Signed] G II . It is said to have been decided in one of the circuits of the court of common pleas in this state, that the justice should endorse on the envelope of the depositions, the following words: 'SSealed up and addressed by me,*' and sign his name thereto. Before senling up the deposition, tlie justice should read the rules at the end of this section in relation to objections to depositions, and sec that they do not apply to the one he has taken. If the depositicjns are to be used within the limits of the judicial circuit oi the court of common pleas wherein they are taken, no 92 DEPOSITIONS. [P/7. 1, 67/. li?, further act of authentication is necessary than the uhove certificate; but the justice taking the same, will deliver them into the office of the proper clerk, or other proper ollicer; or will seal them up with a copy of the notice, direct and transmit them to such clerk or other officer, there to remain under seal until oi)ened according to the rules of court.'' If, however, the depositions are not taken within tlie judicial circuit in which they are. to be used, and arc taken by an officer having no seal of olHce, whether taken in this State or else- where, they must be further authenticated, eitlicr by jiarol proof, adduced in open court, or by the annexation of the official certificate and seal of some secretary or other officer of State, keeping the great seal of the State, or the clerk or prothonotary of the court of some city, county, circuit, district, state, territory, province, or other division, that the justice or other officer, by whom the depo- sitions were taken, was, at the time of taking the same, a justice of the peace, or an officer, within the meaning of the statute,' But if the otTicer before whom depositions are taken, w^hether residing in this State or elsewhere, have a seal of office, they require no fui"ther authentication than the certificate and signature of such officer, (in the form given above.) with Ids seal of oflice thereto annexed.'' A justice of the peace has no official seal,(7) and consequently, a deposition taken before a magistrate who resides out of the judicial circuit where it is to be used, cannot be received in evidence w^ith- out the further certificate of the clerk, prothonotary, or secretary, as above mentioned. If taken before a justice within the judicial circuit, his certificate, in the form above given, will be sufficient, without any further authentication. A deposition cannot be received in evidence in a cause, Ist., Unless the notice required by law was served on the oppo- site party in the manner and within the time heretofore mention- ed(8). If, however, the opposite party, by himself or agent, was present at the taking of the deposition and cross-examined the wit- nesses, he' cannot, in general, object to the want of notice. S'?, Unless the deposition appears to have been taken at the time and place mentioned in the notice. But the opposite party cannot, in general, object to any defect as to the time and place, if he or his agent w'as present when the deposition was taken, and cross-exam- ined the witness. 3'Z, Unless the notice under which the deposition was taken is inclosed and returned with the deposition.' But this objection is also, in general, waved, if the opposite party appeared and cross- examined the witness. 4///, Unless it appear from the certificate of the justice or officer taking the deposition, that the witnesses were sworn or affirmed to testify the truth, the whole truth, and nothing but the truth,"" The (h) Stat. 322, 323, $4,9, and 11. (k) Stat. 324, $17, (m) VVrijhi's Rep. 330. 746, (i) Id. lb. $11. (1) Wright's Itep. 632. 747. (7) I understand an official sc.il to be one which lias a. device upon it known to the hiws of the country in wlilch tlie oflicer, wlio holds it, resides. (8) See paj^e 88. §3.] DEPOSITIONS OATHS. 93 object ot" the statute is, that the witness shall be first sworn and then relate his whole story and all he knows. 5th^ Unless it appear from the deposition, or certificate of the justice, that he or some other person named in the deposition, re- duced it to writing. 6^A, Unless it be authenticated by the certificate of the clerk, or secretary, etc., as above mentioned. (9) if taken out of the judicial circuit of the common pleas in which it is to be used. If, however, as has already been repeated, a deposition be taken within such judicial circuit, or if it be taken by an officer out of such circuit, who has a seal of office, no certificate, except that of tlie officer taking it, is required. OATHS. Justices are, in general, familiar with the forms of oaths admin- istered to witnesses; it may, however, be proper before closing the subject of evidence, to here insert such as are usually administered to witnesses: FORM OF OATH TO A WITNESS, WHEN HE SAVEARS BY UPLIFTED HAND. You [or if more titan one witness he sxcorn^ You and each of you] do solemnly swear, in the presence of Almighty God, the searcher of all hearts, that you will testify the truth, the whole truth, and nothing but the truth, in the cause now pending here before me, wherein A B is plaintiff' and C D is defendant; and this you rlo as you shall answer to God. FORM OF OATII TO WITNESS, WHEN HE SWEARS UPON THE HOLT B-BLE. You do solemnly swear, upon the Holy Evangely of Almighty God, that ycu will testify the truth, the whole truth, and nothing but the truth, in the cause now pending hei'e before me, wherein A B is plaintiff" and C D is defendant; and this you do as you shall answer to God. Some religious sects do not consider an oath binding on their consciences unless it be administered thus: ''You do solemnly swear by the Ever-living God, that you will testify," etc. The form of the oath should be so varied as to meet the conscientious opinions of the witness, at the same time retain- ing its substance. (9) Sec preceding page. 04 OATiia. [Prt. 1, C/?. 15.] ronSI OF AFFIRMATION TO A W1TXES9. You [and each of you] do solemnly declare and affirm that you ■will testily the truth, the whole truth, and nothing but the truth, in the c luse now ponding here hefore ine, wherein A B is pliintili' and C D is defendant; and this you do under the pains and penalties of perjury. FORM OF AN OATH TO AN TNTF-RPRETER, WHEN THE WITNESS DOES NOT UNDERSTAND THE ENGLISH LANGUAGE. You do solemnly swear, in the presence of Almighty God, the searcher of all hearts, that you will truly interpret to W S , [the ivitne.ss.1 the oath which shall be administered to him as a wit- ness in the cause now in hearing, wherein A B is plaintilT and C D is defendant, and truly interpret the testimony of the said W S ." FORM OF AN OATH OR AFFIRMATION, AS TO THE TRUTH OF AN AFFIDAVIT, You do solemnly swear in the presence of Almighty God, the searcher of all hearts, [or if the person (ifj'irm^ s/n/^ You do solemn- ly and sincerely declare and atlirm,] that the matters set forth in this paper and to which you have subscribed yoiu* name, are true, as you verily helieve: [here atl'l, if the ivitnr.ss ajjirni; and this you do un- der the pains and penalties of perjury.] (n) Wiiglil's Hep. 157. CHAPTER XVI. PROCEEDINGS IN JURY CASES; THE DECISION OF A CAUSE BY A JUSTICE; AND THE EFFECT AND FORM OF JUDG- MENTS. SECTION I. PROCEEDINGS IN JURY CASES, AND THE DECISION OF A CAUSE BT THE justice; AND HEREIN, (A) In what cases a jury is allowed^ when to he claimed., and the effect of confession as to costs. {B) Contimiance.^ venire., and impannehnent., in jury cases. (C) Oath., trial., verdict., etc., in jury cases. (D) The bill of exceptions. (E) The decision of a cause by a justice. ri, OF THE NATURE, EFFECT AND FORM OF JUDGMENTS; AND HEREIN, (^4) Judgment of nonsuit. (B) Discontinuance. (C) Judgment on the merits. Sec. I. PROCEEDINGS IN JURY CASES, AND THE DECISION OF A CAUSE BY THE JUSTICE; AND HEREIN, {A) In ichat cases a jury is allowed^ when to be claimed., and effect of confession as to costs. By act of February 14th, 1840,* it is provided, that in every civil action, except such as were then authorized by law to be tried by a jury, if the defendant disputed the plaintift''s claim, or the plaintiff disputed the defendant's defence, but not otherwise, either party shall be entitled to demand a jury. This demand must be made before the justice proceeds to a hearing of the cause on the merits, and after an appearance by the defendant,* If, prior to calling the jury, the defendant is willing to confess a certain amount, it will be proper for the justice to note that ffict, and the amount, on the docket; for, if the plaintiff, after being in- form3d thereof, still persists in dcmand'ng a jury, nnd he does not recover a greater cmoimt thru thnt which the defend: nt w."s will- ing to confess, the costs accruing in consequence of calling the jury, must be paid by the plainthT.* (a) Stat. 533, 51i3. 96 JURY TRIALS. [P/t. 1, Ch. 16, [B) Continuance^ venire^ and inipannelment^ in jury cases. If a jury is demanded l>y cither party, the justice inay continue the cause ior so long a time as he may deem expedient, (but not longer than is allowed by law in other cases,) and issue a venire, directed to any constable of the township, for six citizens of the township, (unless the parties agree upon a less number,) having the qualifications of electors within the township, and no wise of kin to eiflier party, nor interested in the suit.** The jury are chosen as follows: The names of eighteen persons being written by the justice on a slip of paper, the defendant or his agent must first strike olf one name, and then each party alter- nately strikes off a name, until each has stricken off six names. The remaining six will constitute the jury. If either party neglects or refuses to strike a jury, the justice may strike the same for him. The justice then issues a venire, in the form following:*^ The State of Ohio, County, ss. To Constable of tow^nship, in said county, greeting: You are hereby commanded to summon of said township, to be and appear at , in said township, on the day of , A. D. , at o'clock in the noon, to serve as jurors in the suit of A B against C D , then and there to be tried; and this they shall in no wise omit, under the penalty of the law. And have you then there this writ, with your doings thereon. Given under my hand and seal, this day of , A. U. 18 — . G H , J. p. (Seal) The constable returns the venire, with the names of the persons by him summoned, at the time appointed for the trial of the cause. The return of the constable may be as follows: June 1, 1841, Summoned A H , [naming the jurors served^'] as commanded by the within writ. R H , vol found. Fees I J , Constable. of township. If a juror, thus summoned, fails to attend, having no reasonable excuse to assign for such failure, he may be proceeded against by warrant, and fined in any sum not exceeding ten dollars.(l) (b) Stat. 533, 5124. (c) Stat. 535, $132. (1) Stat. 535, §133. The form of the docket entry in such case can be readily made out from the one on pag^e 56. §1,(B),(C).] JURY TRIALS. 97 If by reason of challenge for cause, (2) or by reason of sickness, or other disability, six jurors are not impanneled, the constable may fill the pannel from bystanders, as is done by the sheriff in the courts of common pleas,* (C) Oath^ trial and verdict^ injury cases. The following is the form of the oath to be administered by the justice to the jury: You do solemnly swear in the presence of Almighty God, the searcher of all hearts, [or if a juror affirm^ say^ You do solemnly and sincerely declare and affirm, under the pains and penalties of perjury,] that you will well and truly try the matter in difference between A B and C D , and a true verdict give according to the evidence. After the jury are swoni, the plaintiff should proceed with the examination of his witnesses, in like manner as already stated in a preceding chapter.(3) All questions as to the admission and re- jection of testimony must be decided by the justice. The jury decide nothing during the progress of the cause; so that all proper questions arising on the trial, are decided by the justice. After the testimony is closed, the plaintiff has a right to address the jury. The defendant may then address the jury, and the plaintiff after- wards replies. It will be perceived that the plaintiff has a right to open and close to the jury; but neither he nor his counsel can be permitted to open the case with two addresses, or reply to the de- fendant with two addresses. The defendant, after the plaintiff has made his first address to the jury, may, by himself or counsel, make two addresses, but he has no right to address the jury after the plaintiff has made his closing remarks. After the parties or their counsel have addressed the jury, the justice, if the parties desire it, gives to the jury his opinion of the law growing out of the facts of the case. The jury, however, are the judges of the facts. The jury are then conducted by the con- stable, to some private and convenient place, where they may deliberately and without interruption, consult upon their verdict.'' If the jury, after sufficient time for deliber. 4 Munf. 373. (c) 8 Greenl. Itep. 19. (1) 8 Cow. Rep. 123. (g) 1 Aik. Kep. 24. 380. (m) Slat. 53.i, $135; 2 liar. 4- J. 345. (h) 1 Stew. ,!^ Port. 71. (n) 5 Wend. Rep. 132, n. 4 O. R.351. (k; Minor's Rep. 413. (o) 5 Wend. Kep. 132. 102 DECISION OF A CAUSE — 'JUDGMENTS. [Pi't. 1, Ch. 16, true, he slioulJ not sign it; nor until made out correctly, will he be bound to sign it.^ If all the evidence given at the trial is contained in the bill of exceptions, and only [)art of the evidence is excepted to, the party cannot, u|)«)n certiorari, object to the other evidence stated in the bill; he must be confined to the points excepted to.*" (E) The decision of a cause by a justice. Before deciding a cause the justice must make up his mind in re- lation to what foots are satisfactorily proven, and what are not. In arriving at a conclusion as to what the real facts in a cause are, he must take into consideration the character of the witnesses — their disinterestedness and freedom from bias and prejudice, and their opportunity of knowing the facts about which they testify. Although the magistrate cannot substitute in the place of proof, his own j)revious knowledge of the facts, or his previous conjectures; yet it would be a violation of his duty and of his olhcial oath, to make up his decision upon testimony which, from the character of the witnesses, connected with other proof, he believes not to be true. If any question of law arise out of the facts, the justice must be careful to apply the right rule to them, and distinguish between a general rule and its exceptions. To become accjuainted with the law, is one thing; to know where and how to apply it after it is known, recjuires more good sense, reflection and discrimination, than those persons suppose, who are unable to account for honest dirterence of opinion amongst its professed students and expounders. The great difficulty to be encountered, is, to know whether a par- ticular rule is applicable or not. When a serious doubt of this kind exists, and the application of the rule will do injustice, that doubt should induce the justice to do what is right and just without re- garding the rule; for it is probable that the rule was not intended for the case in hand. Yet prescribed rules of law never can be so specific and perfect as to always operate justly in their practical application: they must, however, be followed, whatever may be the consequences to the parties, when clearly applicable to the case in hand. After the evidence is closed, and even after the cause has been argued by the parties or their agents, the justice may permit fur- ther evidence to be given;" but neither party can claim this as a right; nor can a justice at this stage of the cause continue over the trial for another day, except by the consent of both parties. Sec. II. OF THE NATURE, EFFECT, AND FORM OF JUDGMENTS. {A) Of the nature., effect., and form of judgments of Nonsuit. After a judgment of nonsuit, the plaintiff may bring another ac- tion for the same cause; but if a judgment be once given upon the (p) 4 O. R. 351; 4 Pet. R. 102. (r) 7 Johns. Rep. 306; 4 Cow. 450. (q) 7 Pick. Rep. 139; 1 Wend. Rep. 418; 11 VVlieu. 199 §1,(E),2,(A),(B),(C).] jur^MENTs. 103 merits of the cause, the plaintiff is forever barred from suing the defendant upon the same ground of complaint. The plaintiff may, upon the trial, but not after the justice has de- cided the cause, elect to be nonsuited in order to have an opportu- nity of bringing it again in another shape, or when better prepared with evidence. If on the trial, the plaintiff's testimony does not support his ac- tion, the justice may render judgment of nonsuit without hearing the evidence of the defendant.^' FORM OF JUDGMENT OF NONSUIT. After stating the reaaon ivhy a judgment of nonsuit is entered^ as^ ^'' The plaintiff failing to appear," or "The plaintiffs having failed to prove that they were partners," o?- "After hearing the testimony of the plaintiff and being of opinion that it is not sufficient for the plaintiff to maintain his action, the same was overruled," or "It ap- pearing from the testimony that the suit should have been brought," here stating wherein there is an o?nission or mistake in the names of the parties; or say^ "The plaintiff on the trial electing to be nonsuit- ed;" then add; whereupon the plaintiff became and was nonsuited. It is therefore considered by me that the defendant go hence, without day, and recover of the plaintiff dollars cents, his costs herein taxed.(l) (B) Of the Jiature^ effect^ and form of judgment of Discontinuance. The statute of this State seems to contemplate that judgments of discontinuance will sometimes be entered by a justice. If a plaintiff, after the commencement of a suit, desires to pro- ceed no further therein, either from the action not being maintain- able, or from the form of the action being misconceived, or the wrong parties being sued, or from any other cause, he may discon- tinue the suit, and afterwards sue again, or not, as he thinks proper. The plaintiff may discontinue his suit at any time before the jus- tice renders judgment,*^ The discontinuance may be entered in the form following: June 5, 1850. The plaintiff came and discontinued his suit. It is therefore considered that the defendant go hence without day, and recover of the plaintiff his costs, taxed at — dollars — cents.(2) (C) Of the nature^ (ff^^ct^ and form of a judgment on the merits. When a judgment is rendered by a court having no jurisdiction of the subject, (as if a justice should render judgment in an action (b) 12 Johng. Rep. 299; 13 Id. 94. 365. (c) 2 Sell. Prac. 336. (1) The costs inserted in a judgment are only those of the party recovering- the judgTTicnt: the costs of tlic purly ag-ainst wliom judg-ment is rendered must be stated in a scpanitc clause of tlie docket entry, and indorsed on tlie execution and collected by the officer in the same manner and at the same time wlien tlie judg'- ment mentioned in tlie execution is collected. Stat. 405, §49 and 50. (2) See in relation to costs, Part I, Chap. 17, §4. 104 JUDGMENTS. [Prt. 1, Ck. 16, of slander, or the like,) it is totally inoperative and void. But if a court render judgment in a cause, over the subject matter of which it has jurisdiction, it will be no objection to the judgment that the proceedings were irregular: the objection can only be made on a writ of error or certiorari 5*^ and until reversed, the judgment is valid and binding. If a judgment be once given upon the merits of a cause, the same plaintiH'is forever barred from suing the same defendant upon the sa?/ie contract, or ground of complaint. We liave already seen,(3) that a judgment of nonsuit or discontinuamx docs not prevent the plaintiff from again suing, in the sufue right, the same defendant for the sa//ie cause of action. Not only the plaintiff is barred from his action after a judgment has once been given upon the merits, but all who dh-ectly claim un- der hbn or the defendant an interest in the subject matter of the suit, as assignees, executors, administrators, or heirs, will, in gen- eral, be equally bound by the judgment.* It may be proper here to state, that if a fact has been found true by a verdict or judgment between two parties, the record cannot be received in evidence for or against a third person, to prove the fact found by the verdict or judgment; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment, which he might, if he had an opportunity, show to be erroneous. And therefore the depositions of witnesses in another cause, in proof of a fact, and the judgment of the court on facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used in prejudice of strangers*^ and third persons. When the demand of a party is submitted to a jury or justice, and they see fit to disallow it, either for wvant of suthcient proof, or for any other cause, a verdict and judgment thereon is conclusive; and the same demand is barred forever.^ If a defendant afterwards discover that he had a just defence to an action, he has, in general, no remedy,*" even if he had a receipt in full at the time of the trial, which he omitted to produce.' So, if the plaintiff's claim is entire and undivided in its nature, as when several articles of goods belonging to the same person, are wrongfully taken at one time, one action only can be brought.'' As, where the plaintiff brought several suits for three barrels of pot- ashes, sold at the same time, the contract was held to be entire, and that separate suits could not be maintained for each barrel.* In such case, a judgment in one suit w'ill be a bar to the other actions. So, a constable, on an attachment against A, took, at one time, three bed quilts and a bed, the property of B, w'ho brought a suit against him for taking the quilts only, and a trial and judgment (d) Wright's Rep. 348, 349; 3 Ohio Rep. 306. (h) 8 Jolms. Rep. 470; 9 Id. 232. (e) 4 Rawie Rep. 273. (i) 2 E3. Rep. 546. (f ) Rose. Ev. 99. (It) 15 Johns. Rep. 432. (g) 2 Johns. Rep. 210. (I) Id. lb. 229. (3) See (.\) and (B), of this section. §2, (C).] JUDOMENTS. 105 were had thereon; B was holden barred of his further action, not only for the quilts, but for the bed also; for here was one indivisi- ble act, constituting an entire cause of action."" If, however, the plaintiff" have two separate claims, and omit, in his first action, to give any evidence of one upon v/hicli he might have recovered, he will not be prevented thereby from suing for and giving evidence of it in a subsequent action. "^ A party will not be permitted to show a former recovery by ver- bal or parol testimony; but the record or docket, or a certified or sworn copy of it must be produced, as has been before stated.°(4) But a recovery in a former action, apparently for the same cause, or apparently for a different cause, is not conclusive evidence that the subsequent suit is, or is not, brought for the same demand; and either party may prove by verbal or parol testimony, that it is brought upon another and distinct demand, which was not submit- ted to the court or jury, in the first suit; or that it was brought for the same matter, and passed upon;i' and this may be proved by a juror or the justice who tried the cause, or any other person. "^ If the judgment is upon a bond, sealed bill, promissory note, or other instmment of writing, in which two or more persons are joint- ly, or jointly and severally held and bound, and it appears from ver- bal or other testimony, that one or more of those bound, signed the same as surety or bail for his or their co-defendant, the justice, in entering the judgment, must certify which of the defendants is prin- cipal debtor, and which is surety or bail. ''(5) If only one of the joint and several obligors be sued, he (although in fact a surety) will not be entitled to the certificate nor any bene- fit from this law, as there can then be no principal to the judgment, against whom to issue execution in the first instance. FORM OF JUrOMENT FOR PLAINTIFF ON THE MERITS. June 5, 1846, 2 o'clock, A. M. [or P. M., the time of trial.'] The parties appeared, [or if the defendant did not appear., say., The plain- tiff" appeared^ and the defendant failed to appear, arid then jiroceed as follows^ trial had ; A S and W S sworn and ex- amined as witnesses for the plaintiff", [here add., in case the defendant proves a set off or other claim which should be allowed to him., and I do find. That the defendant owes the plaintiff" , . . . $'100 That the defendant is entitled to an allowance of . . . 50 Leaving a balance due the plaintiff' off" .... ^50 (m) 15 Johns. Uep. 432, and 136. (p) 16 Johns. Rep. 136; 3 Cow. Rep. 120. (n) 6 T. R. 607; 4 Id. 146; 15 Eng. C. L. Rep. (q) WriRhi's Rep. 261. 268. 387; 13 Johns. Rep. 227. (r) Stat. 511, $30. (o) 3 Ohio Rep. 271. (4) Upon this subject, see pages 79 and 80. (5) As to the fbiTii of an execution against the principal and surety in such case, see Part 1, Chap. 23, §6. 14 'l06 JUDGMENTS. [Pw. 1 , 67*. 1 6, §2, (C).] and then proceed with the judfrjnmt^ as follows •] It is thereupon con- sidered by nic that the phvintill' recover ol' the defendant the sum of doUars, [_n-rite out this amount instead of putting it injigurcsl^ witli his costs herein taxed at dollars cents.(6) When the suit is against two or more, some of whom appear to be surety for a co-defendant, add, after entering the judgment against all the co-defendants, the i'ollowing: '-It is hereby certified that the above named C D is sure'ty for his co-defendant, E F , who is the principal debtor." FORM OF JUDGMENT ON THE MERITS, FOR DEFENDANT AGAINST THE PLAIN' TIFF, FOR COSTS. June 5, 1846, 2 o'clock, A. M. [or P. M. the time of trial] The parties appeared, trial had; A S and C D sworn and examined as witnesses for the defendant. It is thereupon con- sidered by me that the plaintiff hath no cause of action nor claim in the premises against the defendant, and that the defendant reco- ver of the plaintiff his costs, herein taxed at dollars cents. FORM OF JUDGMENT ON THE MERITS, IN FAVOR OF THE DEFENDANT, FOR A BALANCE DUE HIM. June 5, 1850, o'clock, P. M, [the time of trial.'] The parties appeared, trial had; A S and W S sworn and examined as witnesses for the plaintiff, and R T for the defendant: I do find the claim of the defendant in the premises to be I'lOO and that of the plaintiff to be - - 90 Leaving a balance due the defendant of - - - - ^\0 It is therefore considered by me, that the defendant recover of said plaintiff said balance of ten dollars, with his costs, herem taxed at dollars cents.(6) (6) See as to the costs, Part 1, Chap. 17, §4. CHAPTER XVII. FEES AND COSTS. SECTION I, ITEMS OF THE FEES OF THE JUSTICE; AND HEREIN, (A) For issuing writs. (B) For entries upon the docket. (C) For certificates.^ copies., and oaths. (D) Miscellaneous fees of the Justice. II. ITEMS OF THE FEES OF A CONSTABLE. III. FEES OF WITNESSES AND ARBITRATORS. IV. HOW THE COSTS IN CIVIL PROCEEDINGS SHOULD BE TAXED, AND MAT BE RECOVERED. V. HOW THE FEES OF THE JUSTICE, CONSTABLE, AND WITNESSES, IN CRIMINAL CASES, MAT BE RECOVERED; AND HEREIN, (A) As to the fees of the Justice. (B) As to the fees of the constable. (C) As to the fees of witnesses. (D) When such fees are paid by the county. Sec. I — ITEMS OF the fees of the justick. (A) For issuing writs.^ Capias or summons. Mittimus to commit to jail, Subpoena for one person, . for each person in addition, . Execution, Attachment, .... Venire for a jury, , Restitution, in forcible entry and detainer. Scire facias. Warrant in a criminal case. Search warrant, CIMTI. 12i 25 12i 4 25 25 25 25 25 25 25 (s) Stat. 39R, S99. 108 FEKS AND COSTS. [PlL 1, Cft. 17, Cents. Cents. (B) For entering vpon the docket^" An adjouniinent Jit tlie request of either party, . . 10 Reference to arbitrators, . . . . 10 Jiuliinient on trial, . . • • .2.5 Judgment on confe.ssion or default, . . . 124 Discontinuance or satisfaction, . . . .10 (C) For certificates^ copies^ and oaths^ - Certified transcript of a suit, , . . . SH Copy of rule of reference to arbitrators, . . 10 Cert"ified proof of nn account against an estate, . . 12i Certifying and administering oath upon an affidavit, . 2.5 Certificate and acknowledgment of deed and other instrument, 25 Administering oath to witnesses, jurors, and arbitrators, each, 4 (D) MisceUaneoiis fees of the justice* Taking recognizance of bail, . . . .25 Marrying and making return, , . . . |;1 50 For sitting in a case of forcible entry and detainer, besides the above fees,** . . . • .75 When depositions are taken,*^ For issuing subpoena for one witness, . . .124 for each person in addition, , 4 Swearing each witness, ..... 4 Attachment against witnesses, . . _ _ . 25 For each hundred words contained in the deposition and certificate, . . . . • .10 If a justice do not set up in his office, a fair table of his fees, within thi'ee months after his election, he is liable to indictment and the forfeiture of five doU.u-s per day for each day such tnljle of his fees is missing by his neglect."^ Sec. II. — rrEMs of the fees of a constable.® Cents. Service and return of a capias and of a warrant, . . 25 Serving summons and other writs, not herein named, for each person named therein, . . . 10 Copy of summons, left at the place of abode, . . 124 Commitment to prison, .... 25 Serving execution on body and goods, . . .20 Summoning a jury on dead body, including mileage, . 75 For all moneys made on execution, . . 4 per cent. For every day's attendance upon the court and grand jury, ,$'1 00 For every day's attendance before a justice on a jury trial,*^ 50 (a)T.Ptat. 398, 399. (c) Stat. 324, $14. (e) Stat. 399, 404. (h) Stat. 421, $20. ' (d) Sfat. 402, $37. (f) Stat. 534. §1, (B),(C),(D), 2, 3. 4.] FEES AND COSTS. 109 Also, five cents per mile for traveling to serve process, or to perform other official duties, to be computed from the place of service to the place of return; and when two or more persons are named in the process, mileage must be compu- ted from the most distant place of service to the place of re- turn, Tinless such persons reside in opposite or different directions from the place of return. For writing or setting up such advertisements as are required by law to be written or set up,^ ..... 25 The constable is not entitled to recover on mesne or final pro- cess, any fees, unless he returns on the writ upon which any charge is made, the particular itejns of such charge.** The constable should set up a table of his fees in his office, or he may, perhaps, be subjected to like penalties as justices who neglect that duty.(l) SfX. ill. FEES OF WITNESSES, JURORS AND ARBITRATORS. Witnesses attending before a justice, whether in criminal or civil cases, are entitled to fifty cents in each case in which they are sub- poenaed.' If called upon to testify in a cause in which they are not summoned, they are entitled to twenty-five cents.' When a cause pending before a justice is referred to arbitrators, they are entitled to sixty-two and a half cents each per day, for their services, to be taxed and collected with the other costs of the suit."^ Each juror is entitled to receive fifty cents at the hands of the successful party, which is allowed to the latter, in the taxation of costs against his adversary; but if the jury do not agree, the party calling the jury pays, and loses the jury fee.^ Sec. IV. HOW THE COSTS IN CIVIL SUITS AND PROCEF.riNGS SHOULD BE TAXED, AND MAY BE RECOVERED. The costs made or caused by the plaintiff, and those made or caused by the defendant, should be taxed, and their amount made out, separately on the docket.*" The costs inserted in the judgment are only those made or caus- ed by the party who recovers the judgment. The costs of the party against whom the judgment is recovered, are indorsed on the exe- cution, and collected by the officer, in the same manner and at the same time that the judgment mentioned in the execution is col- lected."" (g) Stat. 400. $26. (k) Stat. 512, $39. (h) Id. 403, $40. (I) Id. 535; and see ante p. 98. (i) Id. 390, $R. (m) Id. 405, <\19, 50. (1) Sec the preceding' page. 110 FEES AND COSTS. [P/'i. 1, C/l. 17, In general, the costs of the plaintiff are those caused by the issu- ing and service of the summons, capias, or scire facias, and the pro- ceedings thereon; the issuing and service of such subpoenas as he requires, with the fees of his witnesses. The costs of entering the judgment must be taxed to the party in whose iavor it is rendered. The costs of an adjournment (10 cents.) should be taxed to the party who recjuests the adjournment. If the adjournment is by consent, and no agreement made by the parties in relation to the costs, it shoiild be taxed against the plaintiff. When summons is served by copy left at the defendant's dwel- ling house, and the cause is afterwards adjourned while he is absent and for his benefit, and he has no agent present at the adjournment wlio is authorized to appear for him, no fees for the adjournment can be charged. In other cases, it should be taxed to the party at whose instance the cause was adjourned. The practice generally prevails, among magistrates, to adjourn a cause without making any order in relation to the fees of witnesses; in which case each party is taxed with the fees of his own witnesses. But the justice may, when he adjourns a cause, state on his docket w'ho shall pay the costs of the adjourn- ment, and the fees of the witnesses in attendance; and an execution may be issued therefor. When, however, an adjournment is grant- ed for more than twenty days, the costs of the adjournment must be paid in advance.*" The defendant may be taxed with the issuing and service of all process which he orders, the recognizance for stay of execution, and the costs, as has already been stated, of such adjournments as are granted at his request or, (in his absence.) for his benefit. Each party is liable for the costs by him made or caused, though judgment be not entered against him for the same; and they may be recovered, if not by execution directly upon the judgment,(3) at (m) Stat. 510, <»23. (3) The statute of Ohio [Slal. 405,] provides: "That the clerk or justice of the peace issuing' execution upon a judgment, shall indoree thereon the amount of the costs of the party condemned, which costs shall be collected by the officer to wliom such writ may be directed, in the same manner and at the same time in which the judgment mentioned in the execution, shall be collected. •' §4. When the party recovering shall neglect to sue out execution immedi- ately, or after such execution shall have been returned without satisfaction of costs, the clerk may, for his own benefit, or shall, at the instance of any person entitled to fees in the bill of costs taxed against either party, and by order of the court, issue against the party indebted to such clerk or other person for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs." The statute then prescribes the^form of an execution from a court of common pleas to"compel either party to pay his own costs. It was probably the intention of the legislature to give aj justice power to issue execution in the mode above mentioned, for costs, after an execution has been issued against the party con- demned in tlic action and returned unsatisfied. But whether courts will give this §4, 6, (A).] FKKS AND COSTS. 1 1 1 all events by suit. But if suit be brought, each person or officer, to whom fees are due, must bring separate actions, and will recover his own fees. The payment of fees may be refused, if a bill of particulars, signed by the officer, and a receipt or discharge, be not made out, when required." Sec. V. — HOW fees in criminal cases may be recovered.(4) (A) As to the fees of the justice. When complaint is made, of fear of injury to person or property, and the accusation is not established, judgment is rendered in the name of the State, against the person complaining, for the costs of prosecution, which are collected by execution, as in civil cases." In all cases for crimes or offences, instituted before a justice, in which he has power to fine, he may render judgment for the fine, and tax such costs for himself, the constable and witnesses, as are or may be allowed by law for similar services in other criminal cases, and issue execution therefor. If such costs cannot be col- lected from the defendant, then, and not before, they must be paid by the county on the order of the auditor,? (n) Stat. 403, $38, (o) Id. 539, §14. (p) Id. 540, $24. construction to the statute, may be uncertain. The form of an execution, how- ever, is here given. Form of an execution to compel either parti/ to pay his own costs. The State of Ohio, County, ss. To any constable of the Township of , greeting-: Whereas, in a certain action of [here mention the action named in the summons,'] lately prosecuted before me, G H , a justice of the peace in and for said township and county, M'herein A B was plaintiff", and C D was defendant, the costs of* the said A B [or C D , as the case may he,] were taxed at dollars cents. You are therefore commanded, that of the goods and chattels of the said A B , [or C D , as the case may be,] you cause to be made the costs aforesaid, with the interest thereon from the [here insert the date of the judgment,] until paid, and the costs that may accrue; and of this writ make legal service and due return. Given under mv hand and seal, this day of , A. D, IS — . G H . {Seal.) When execution is issued for costs adjudged against a pai'ty on an adjournment, the above form may be used, with this alteration: at the *, in.stead of the word "of," insert, ^'adjudged against the said A B , [or C D , as the c<;(sc Traay /;e,] on adjournment," Slat. 400, §53, (4) " In all criminal cases in the county of Hamilton, prosecuted in the name of the State of Ohio, in which a justice of the peace or other judicial officer has pow- er to impose a fine, and in wiiicli the accu.sed shall be convicted, execution shall be issued \\n- the fine and costs of prosecution; and in all cases aforesaid, wherein tiie State fails, judgment may be rendered for costs against tlie ])arty comjjlaining, and execution may lie issued thereon: but the costs sh:dl in no case herein con- templated, be paid out of the county treasury." Stat. S.'iH, note. 112 FEES AND COSTS. [Prt. 1, Ch. 17, In prosecutions foi' crimes other than those to keep the peace, and in whicli the justice has power to fine, if the State i'ail in any stage of the i)rosecution, eitiier before the justice, or after the de- fendant is committed to jail or recognized; or if the defendant shall, after conviction, jirove unable to ])ay the costs of prosecution, the whole costs of the justice, constable and witnesses, must be paid by the county, on the order of the county auditor; and the justice, in all such cases, must immediately after the trial, make out and de- liver to the auditor, a certified transcript of all the costs that have accrued on the trial, stating how much is due to the justice, con- stable, and each witness, giving his name.'' The auditor has a right to correct errors in such cost bills.*^ But in these cases in which the justice has power to fine, if the defendant is discharged, the justice cannot recover his costs from the county. He loses his costs if the defendant is discharged, un- less the suit be bi'ought by an informer who is entitled to a portion of the penalty; in which case, judgment against the informer may, in general, be rendered for costs, and taxed and collected as in civil cases.** Officers, however, whose duty it is to prosecute for penalties, are not liable for costs.^ (B) As to the fees of the constable. The constable is entitled to his fees from the county in all crim- inal cases, whether the State fail in any stage of the prosecution or not, except in proceedings, under the statute, for bastardy, and qui tarn actions of debt, brought by a common informer for a penalty.® In the cases last mentioned, the constable must resort to the judg- ment to obtain his fees, or if an officer whose duty it is to prose- cute, be the informer, he must lose his fees if the defendant be dis- charged. When a person is charged with tiie commission of any crime or offence punishable by the laws of this State, and absconds or re- moves from the county, a constable or any other person may appre- hend the person so charged, and remove him to the county where the offence is supposed to have been committed, and there deliver him to any judge or justice of the peace. The auditor of the coun- ty to wdiich such removal is made, must allow the officer or other person causing such removal, all necessary disbursements and ex- penses, together with a reasonable compensation for his time and trouble.*' To entitle any one to this pay, there must be, prior to the pursuit, a legal charge or complaint before a justice of the peace or other judicial officer, and not a mere intention to make a charge, in case the offender be apprehended.' (b) Stat. 540,523. (c) Stat. 541, $26. (c) Td. 541, $27. (h) M. 857, $3. (d) Id. 665, 577. (i) Wright's Rep. 176. §5, (B), (C), (D).] FEES AND COSTS. 1 1 3 (C) Of the fees of loitnesses. They are entitled, in all cases when the State fails in the prose- cution, or when the party convicted proves insolvent, to a certifi- cate from the justice, of the amount of their fees, which is presented to the county auditor, and the amount paid by the county. But in actions, under the statute, for bastardy, and in qui tarn actions of debt, brought by a common informer for a penalty, the county is not liable for the costs, and the witnesses must resort to the parties for theii' fees. (D) When fees in criminal cases are paid The statute is not very specific upon this subject. If the prose- cution fails before the justice, it is clear that the county auditor will give an order immediately. But if judgment is rendered against the defendant for a fine and costs, execution must issue, and a re- turn made, of no goods, after proper search for them, or some other evidence must be adduced before the auditor, to satisfy him that the costs cannot be collected from the defendant, before he will give an order on the county treasury.^ If the prosecution, however, be such, or is so conducted that the defendant's case goes to the court of common pleas, the discharge or acquittal of the defendant will entitle the justice, constable, and the witnesses who attended be- fore the justice, to their pay, immediately after such discharge or acquittal. But if judgment is rendered in the court of common pleas against the defendant, execution should first issue, and a re- turn be made of no goods, or some other evidence of the insolvency of the defendant should be adduced to the auditor, before he will pay such costs.'' (k) Stat. 540, 541. 15 CHAPTER XVIIl. OF THE DOCKET; AND HEREIN, SECTION I. HOW THE ENTRIES UPON THE POCKET SHOULD BE MADE. II. FORMS OF ENTRIES UPON THE DOCKET; AND HEREIN, (^1) When siiit is hroiiglit on an account — when the defendant fails to appear^ and trial had — wli-en judgment is rendered for the plaintiff on the merits — tohon tho judgment is set aside and new trial had — loh en judgment is rendered for the defendant on the merits. {B) When suit is on a note and a. capias issues — when the suit is by partners.^ against surviving partners — when the defendant enters into a re- cognizance upon an adjournment — when the plaintiffs fail to prove they are partners — ivhen a nonsuit is entered. (C) When suit is brought against administrators — when it is brougJit on a bond — when summons is served by copy left at the dwelling house of the defendant — when a set off is allowed to the defendant — when costs are recovered against an administrator. (D) When judgment is confessed. (E) Docket entries when there is a jury trial. Sec. I. HOW ENTRIES UPON THE DOCKET SHOULD BE MADE. Every justice of the peace is required by law to make a fair and accurate entry of all actions and suits instituted before him, with his proceedings thereon.^ As these entries are often reviewed by courts upon certiorari, it is important that they should be carefully and correctly made. If a justice, when he first enters into office, is particular in this respect, he will save himself much future trouble and mortification, and soon habitually make the entries upon his docket without omissions or errors. In this, as in all other busi- ness, procrastination is not only in itself often attended with serious consequences, but begets habits of carelessness. Whatever is done in the progress of a cause, should be immediately entered on (a) Stat. 506, $3. [Prt. 1, C/i. 18, §1.] OF DOCKET ENTRIES. 115 the docket. Each cause should, in general, contahi a memoran- dum of First, The christian and surname of the parties, and the charac- ter in which they sue and are sued, fully expressed.(l) Second, A brief statement of the cause of action.(2) Third, The amount of the debt or damages claimed by the plain- tiff. In all suits, except upon a bond or for a certain sum of money secured by a sealed instrument, the claim of the plaintiff should be stated on the docket and in the writ as damages. They should be fixed at such an amount that they will cover the whole claim and interest, for which judgment may be afterwards rendered. But where the suit is on a bond, or other sealed instrument, for the payment of a certain sum of money, then the plaintiff claims the amount due as a debt, and the entry on the docket and in the writ may be accordingly. Fourth, It should be stated that the bill of particulars, and the note or instrument upon which the suit is brought, are filed. Fifth, The time when, and what kind of process issued, to what constable delivered, at what time the defendant by the process is to appear. If the plaintifi^ procure a capias, by making oath that he will be in danger of losing his debt unless the defendant be arrested, that fact should be stated. If householders or freeholders of the county are sued out of their township, the cause for so doing should be set forth on the docket.^ Sixth, When the summons or capias is returned, and a copy of the return of the constable, with the items of his fees. Seventh, When subpcenas were issued, for which party, to whom delivered, the names of the witnesses, and the return. Eighth, The adjournment, if any, to what time, and the pro- ceedings thereon. If the suit be continued more than twenty days, (except by consent, or where the summons is served by copy left at (b) Wright's Rep. 709. (1) Thus — Mel Bite, as administrator of "^ Kane Lave, deceased, | Charles Dame and James Fife, f partners under the name and | firm of "C. Dame & Co." J (2) When suit is broug-ht upon an instrument of writing-, wliich is short, it will be proper to copy it on the docket; thus — Suit broug-ht on a due bill, which reads, "Due Abel Bite, fifty dollars, on de- mand, wi'.h interest. ««Nov. 30, 1840. CIIAULES DAME." Wlien the writing- is too long to copy, then state its date, by wliom, and to whom made; if to perform some act, for the non-performance of which the suit is brought, state what that act is; if for the payment of money, state the amount, and when payable. When suit is brought on an account, so state, and its amount: if for a trespass upon real estate, it would be sufficient to so state in g-eneral terms; if for taking property, or for any other wrong- or injury, state the kind of property, or the natin*e of the injury. 116 OF DOCKET ENTRIES. [P;-/. 1 , C//, 1 8, the dwelling house or place of abode of the defendant,) it should be stated on the docket that it was done ^'■upon good cause shown by affidavit, and on the payment of the costs of the continuance," Ninth, Tiic time when the cause was tried, the appearance of the parties, or their fiilure to attend; the judgment, and the amount thereof written out in words, and not in iigures. Tenth, The costs only of the party recovering judgment should be carried into the judgment; and the costs of the party against whom the judgment is rendered, should be stated in a separate clause of the docket.*^ Eleventh, Who appealed and when. The recognizance for an appeal, or for stay of execution, should be written out in full. Twelfth, The time w'hen execution was issued and to whom delivered, when returned, and a copy of the return. Thirteenth, The proceedings against the bail for stay of execu- tion, &c. All these matters should be stated in the order of time they tran- spired. It is not to be understood that the proceedings of a justice would be reversed upon certiorari if he omitted to follow any one of these rules in making up his docket. Nothing, however, is here directed but what is obviously proper; and the decisions of the court of common pleas in the different circuits, in relation to this subject, are so various, that the safest course for a justice to pursue, is to do as the statute requires — "make a fair and accurate entry of all actions and suits instituted before him, with his proceedings thereon." A magistrate may, after his docket is made up, amend it accord- ing to the truth,*^ and correct mere clerical errors, or an omission or mistake in the costs. He is not bound, nor ought he, to state on his docket the evidence, or M'hat testimony was overruled, or what the parties said or urged before him. ''(3) A few forms of entries will be given here, to illustrate the above directions, and the reader is referred to the index, title, "-^ Entries upon the docket," for a reference to the numerous forms which will be found under their proper heads, in various parts of this work. (c) Stat. 405, $50. (d) 1 Green. 195. (e) Wright's Rep. 418. (3) Unless one of the parties file a Bill of Exceptions. On this subject, see ante, page 98 to 102; and Siat 535. §1,2, (A).] FORMS OF DOCKET ENTRIES, 117 Sec. II. FORMS OP ENTRIES ON THE DOCKET, (A) When suit is brought on an account — when the defeiidant fails to appear^ and trial had — when judgment is rendered for the jAaintiff on the 77ierits — ivhen the judgment is set aside and neiv tibial Jiad — loheii judgment is rendered for the defendant on the merits. -B- vs. -D- Suit brought on book account. Items amount to $'50. Damages claimed, $65. Plaintiff's costs on first trial and judgment. Jus. Summons 125 cts. Admin, oath, 4 Istjudgmt. 25 Cons. Serv. Sum. 10 51i Plaintiff's costs on second trial. Swearing- plaintiff 4 cts. Satisfaction 10 14 Defts. costs on second trial. Jus. Adjournment 10 cts. 2d judgment 25 Swearing witness 4 Witness 50 89 June 1, 1840. Bill of particulars of plaintiff filed, and summons issued and delivered to Israel Jones, constable, for appearance of the defendant on June 9th, 1840, at 10 o'clock, A. M. June 3, 1840. Summons returned, "Personally serv- ed, June 2, 1 840, by reading to the de- fendant. I, JONES, Cons. "Fees: "Service, 10 cts." June 9, 1840, 10 o'clocJc, A. M. Plaintiff appeared — defendant failed to appear — trial had — the plaintiff swoi'n, and examined as to the validity of his book account. It is thereupon considered by me, that the plaintiff recover of the defen- dant the sum oi Jiftij-one dollars, twen- ty-tivo cents, and his costs, herein taxed B.t Jifty-ojie and an half cents, June 18, 1840. Defendant appeared, paid the above costs, and on his application, the above judgment was set aside, and cause ad- journed for trial to June 26th, 1840, 2 o'clock, P. M, June 26, 1 840, 2 o'clocic, P. M. The parties appeared, trial had, the plaintiff sworn, and examined as to the validity of his book account. J A sworn and examined as a witness 118 FORMS OF DOCKET ENTRIES. [Prt.l,ChA8, tor the defendant. It is thereupon con- sidered by me, that the phiintiil" hath no cause of action nor chiim in the premises against the defendant, and that the defendant recover of the plain- tiff^is costs herein taxed at eighty-nine ceiits. {B) When suit is on a note and a capias issues — when the suit is by partners^ against surviving partners — when the defen- dant enters i^ito a recognizance^ upon an adjournment — lohen the plaintiffs fail to prove they are partners — lohen a nonsuit is entered. Abel Bite and Williajn Bite., partners"^ under the name and firm of '•'• W. Bite <^- Co." vs. Charles Dayne and James Fife., survi- ving partners of William Dead., deceas- ed, late partners under the name and firm of 'J. Fife 4^ Co.''' y Damages, $'60. Plaintiffs' costs. Jus. Swearing' plaintiff 4 Capias 12* Cons. Serving- Capias 25 Mileage, 3 m. 15 Satisfaction 10 Defendants' costs. Adjournment Recognizance Judgment 66i 10 25 25 60 Suit brought on note, which reads, "•For value received we promise to pay W. Bite <^' Co., or order, fifty dollars, on demand, with interest from date. "J. FIFE & CO. "June 1, 1840." December 2, 1 840. Bill of particulars and note filed. — Beinsj satisfied from the affidavit of Abel Bite., that [liere state the ground. set forth in the affidavit upon which the capias iixis issued.~\ I issued a capias against the defendants, returnable forth- with, and delivered the same to Israel Jones., constable. December 3, 1840. Capias returned — '^I have taken the bodies of the within named defendants. "1. JONES, Cons. "Fees: Service, 25 cts. mileage, 3 m. 15 40 cts." 2§,(B),(C).] FORMS OF DOCKET ENTRIES. 119 Parties present; and thereupon, on application of defendants, the cause was adjourned, at their costs, for trial on the 5th of Dec, 1840, 2 o'clock, P.M. [Here enter the recognizance of the defendants.(4)] December 5, 1 840, 2 o'docJc, P. M. The plaintiffs failed to appear: the defendants appeared, trial had, and there being no evidence that the plain- tiffs were partners, under the firm of " W. Bite &L Co.," and the defendants objecting for the want of such proof, the plaintiffs became, and were, non- suited. It is therefore considered by me, that the defendants go hence with- out day, and recover of the plaintiffs their costs, herein taxed at sixty cents. (C) When suit is hought against administrators — when it is brought on a bond — ichen a summons is served by a copy left at the dwelling house of the defendant — ivhen a set off is allowed to the defendant — when costs are recovered against an administrator. A B , vs. C D , as administrator y Debt, ,$76. of the estate of W D deceased. Plaintiff's costs. Jus. Summons Judgment Swearing' 2 wit. Cons. Serving' sum. 2 Witnesses 12i 25 8 12^ 1 00 1 58 Suit brought on a bond made to A B , dated May 1, 1839, signed W D , for $'150, conditioned for the payment of $'75, six months after date, with interest. July 5, 1840. Bill of particulars and bond filed, and issued a summons for the appearance (4) See the form, Part 1, Chap. 8, §4. 120 FORMS OF DOCKET ENTRIES. [Prt. 1, Ck. 18, Defendant's costs. Jus. 1 Adjournment Swearing witness Satisfaction 1 Witness 10 4 10 50 74 of defendant, .Tuly 1 2, 1 840, at 2 o'clock P. M., and delivered the same to Israel Jones, Constable. July 8, 1840. Summons returned — "Served on the 7tii da)- of July, 1840, by leaving an attested copy of this writ at the defen- dant's dwelling house, in the presence of his wife, and informed her of the contents, the defendant being absent. "ISRAEL JONES, Cons. "Fees: Service, 12i cents." July 12, 1840, 2 o'clock, P. M. Plaintiir aj)peared; but, for benefit of defendant, who is absent, adjourned the cause until July 30, 1 840, 2 o'clock P.M. July 30, 1840. Plaintiff appeared; and the defend- ant still being absent, adjourned the cause until August, 1 8, 1 840, 2 o'clock P.M. August 18, 1840, 2 o'clock P. M. The parties appeared: the plaintiff demanded a bill of the particulars of the defendant's set off, which was ac- cordingly filed; and on application of the defendant, the cause was adjourn- ed until August 20, 1840, 10 o'clock A.M. August 20, 1840, 10 o'clock, A. M. The parties appeared: A B and C D sworn and examined for the jilaintiff, and G R for the defendant; and I do Jind that said bond iv as presented to the defendant as a claim against said estate of JV J> , deceased, for the amount for which judgment is hereinafter rendered, within one year after said defendant gave bond for the discharge of his du- ties, * and that lie refused to refer the same to arbitration, pursuant to the act to provide for the settlement of the es- tates of deceased persons : * [or, instead §2, (C), (D).] FORMS Oi" DOCKET ENTRIKS. 121 of the statement contained betwen the two stars (* *), say, if the fact be so, and that its payment was unreasonably resisted^ or say, and that its paijment ivas unreasonably neglected.'\(5) I do also find that the amount due the plaintiff on said bond, with interest, is |79 00 That the estate of said W D— — is entitled to a set off of 3 00 Leavintr a balance due the) ^«.s,„ „,, plaintifTof I *^^ ^'^ It is therefore considered by me, that said plaintiff recover of said de- fendant as said administrator, the sum of seventy-six dollars, [and also one dollar fifty-eight cents, his taxed costs herein,] to be levied of the goods and chattels which were of the said W D-^ , deceased, at the time of his death, in the hands of the said C D -, yet to be administered.(6) {D) When judgment is confessed. A B- vs, > Bill of particulars filed. C D S Jan. 18, 1840. This day came the said A B , Plaintiff's costs. and also the said C D , who Entering- judgment 12^ waved process, entered his appearance Defendant's costs. herein, and confessed that he is in- Entering satisfaction 10 debted to said A B in the sum of two hundred dollars, and the parties requested me to render judg-^- ment accordingly, and for costs: it is therefore considered by me, that said A B recover of said C (5) If the facts above stated in italics are found by tlie justice, from the testi- mon}', to be true, lie may render judgment for costs, to be levied of the property of the defendant himself, or of the assets in his hands unadministcred, as shall be just, having reference to Die facts that appear on the trial. Scat. 355, ^96. If he directs tlic costs to be made out of Uic defendant's own properly, the defendant cannot be afterwards repaid out of the estate, but will lose tiicm. (fi) As to when execution may issue against executors and adniiiiislrators, see Stat. 355, ^,95, and Slat. p. 37h, 3ho, ^81. ir, 122 FORMS Oi' DOCKET ENTKIES. [PW. 1, C/l. 1 8, §2, (E).] D said sum of two hundred dol- lars, and the costs herein taxed at twelve and a hall" cents. The jurisdiction of a justice above one hundred dollars being special, if the docket does not show a case for the special jurisdic- tion, the judgment will be void.*^ (E) Docket entries ivhen there is a jury trial. June 8, 1841. The parties appeared; and defendant says that he is willing to confess judg- ment herein for ,'^•50, which the defen- dant refuses, and claims ,*S;60, and de- mands a jury. Tiicreupon the parties duly struck, and chose the following persons, good and lawful men, &c., as jurors, hereafter mentioned, and venire issued to I J , Constable, re- turnable, &c., to June lOth, 1841, 2 o'clock., P. M. to which time this cause is adjourned for trial. June 10, 1841, 2 o'clock, P. M. Venire returned — [Jiere copy the re- turn^ and thereupon came the said A — H — , and L — C — talesinan.^ \iiam- ing the jury I] who were duly impannel- ed and sworn, &c. to try, &c. and de- livered to me, in open court, their ver- dict in the premises, as follows: "We, the jury, find the diflerence, &c. in fa- vor of the plaintiff., and do assess, &c. therein, in favor of the plaintiff., and against tiie defendant, the sum of dollars cents."(l) (e) Wright's Rep. 716. (1) When a set off is allowed, it will be well for the verdict to state the bal- ances, &c. as in the preceding form, (C), ante p. 121. Tlie verdict in the above form is proper on claims for debts, &c. and is perhaps good in almost any case, especially where the name of the action, such as debt, case, &.c. , is omitted in the docket entries, as has been recommended; [see ante p. 8;] for there is in fact, as the oath of the jury shows, [Stai. 534, §127,] no technical issue, and of course no pleadings upon wliich the verdict is predicated. CHAPTER XIX. APPEAL. SECTION I. iN WHAT CASES AN APPEAL MAY BE TAKEN. II. AVITHIN WHAT TIME, AND FOR WHAT AMOUNT, A RECOGNI- ZANCE FOR AN APPEAL MUST BE ENTERED INTO. HI. FORM OF A RECOGNIZANCE FOR AN APPEAL. IV. OF FILING, &C., THE ORIGINAL PAPERS, &C., IN COURT, V. HOW TO PROCEED WHEN THE PARTIES FAIL TO ENTER THE APPEAL IN COURT, AND ALSO WHEN THE COURT HAVE ACTED UPON it; AND HEREIN, (A) Hoiv to pi'oceed ivhen the appeal is quashed hy^ or not entered in^ the court of common pleas, (B) How to proceed when the appeal is dismissed^ or judgment rendered against the appellant; with the for 7ns of scire facias and docket entries. Sec I. IN WHAT CASES AN APPEAL MAY BE TAKEN. The act* ages and costs that have accrued or may be adjudged against the appellant in the court of common pleas.'' If the term of office of a justice expire during the ten days allowed for taking an appeal, he may, notwithstanding, take the recognizance, and give a transcript of the judgment.'' Sec. III. FORM OF a recognizance for AN APPKAL. (.'^) In the action of A B against C D , I, K- l, , acknowledge myself [or if there he more than one surety^ say^ ^ve, E T "and K L , do acknowledge ourselves,} bail for the appellant, in the sum of [here insert at hast fifty dollars^ and not h'ss than double the amount of the judgment^ including costs^ when thejudgyncnt and costs are more than twenty five dollars^] to be levied of my [or our] goods and chatties, lands and tenements, in case the appellant shall be condemned in the action, and shall fail to pay the condemnation money, and costs that have accrued, or may accme in the court of common pleas. [Signed^^ K L . Taken, signed and acknowledged, ) f?tat. 419, ?^9. (k) Stnt. ,512, 541. (g) Id. 878,5.5. (') Wright's Rep. 314. (I) Id. 526, 5108. (1) Sec Part 2, Title fi. (2) See ante p. 98. (3) This form will be foinid in Staf. 527. §i2, 3, 4, 5.] APPEAL, 125 Sec. IV. OF FILING, &C. THE ORIGINAL PAPERS, &C. IN COURT. The justice must make out a certified transcript of his proceed- ings,(3) including the recognizance of bail taken on such appeal, and must, on demand, deliver the same to the appellant or his agent.'"(4) It is also the duty of the justice to deliver or transmit to the clerk of the court to which the cause is appealed, on or before the second day of the term, the bill or bills of particulars, the depositions, the note, contract, writings, and all other original papers, if any, used on the trial before him." All proceedings before the justice cease and are stayed from the time the recognizance is entered into;" and if an execution is out on the judgment, it must be recalled,'' by giving the party appeal- ing an order, directed to the constable, requesting the latter to re- turn the writ, &c.'i After an appeal bond has been duly entered into, the justice has nothing further to do with the cause until he receives a certificate from the clerk of the court. Sec. V. HOAV TO proceed AVIIEN the parties FAIL TO ENTER THE APPEAL, AND ALSO WHEN THE COURT HAVE ACTED UPON it; AND HEREIN, (A) How to jyrocced ibhcn the appeal is quashed hy^ or not entered in^ the court of common pleas. When an appeal is quashed in the court of common pleas, by reason of some irregularity in taking or perfecting it, the cause for (m) Stat. 513, U2. (p) Stat. 517, «63. (n) Id. ib.; 1(1.530,5115. (q) Wright's Rep. 163. (3) As to the form of the certificate, see Part 1, Cliap. 26, §4. (4) The appellant or his agent must deliver the transcript to the clerk of the court to which such appeal may be taken, on or before the second day of the term thereof next following such appeal. Stat. 513, §43. If the appellant fail to deliver the transcript and other papers, if any, to the clerk, and have his appeal docketed on or before the second day of the term of the court next after such appeal, the adverse party may, at the same term of the court, file a transcript and have judgment and execution in his favor for the amount of tlie judgment and costs rendered by the justice, together with all the costs that have accrued in court,- or the appellee may in such case have the transcript entered in court and dismissed at the costs of the appellant, and the cause remanded to the justice to be thereafter proceeded in as if no appeal had been taken. Stat. 51.3, §45. If tiic plaintiff, in the action before the justice, appeal from a judgment render- ed against him, and file the transcrij)t in court, and afterwards neglect to proceed in the cause, the court will render judgment and award execution ag.ainst him for the amount rendered by the justice, with tiie interest thereon, and the costs ii» court. Slid. 514, §'10. The person appealing from a judgment rendered in his favor must pay tiie costs on the appeal, if he fail to recover a greater sum in the court of common pleas tlian the amount of the judgment befoi-e the justice licsidcs the interest and costs thereon. Slat. 511, §18. 126 .\PPEAL. [Prf. 1, Ch. 19, quashing is stated in the order of the ct>urt, and a transcript of such order is lodged with the justice, who thereuj)on must proceed to issue execution, in tlie same manner as if no appeal had been taken/ If both parties fail to enter the appeal, or if it be entered and dis- missed, the court of common pleas will remand the cause for further proceedings before the justice, who, upon receiving the certificate of the clerk of the court to that ctTect, must proceed to issue execu- tion upon the judgment, as in other cases.' When an appeal is quashed by the cour-t of common pleas, or not entered by either party, the sureties are not lial)le on their recog- nizance.' (B) How to proceed v^lien the appeal is dismissed^ or judgment ren- dered in court against the appellant^ ivith fonns of scire facias and docket entries. If the appeal he dismissed or judgment entered in the court of common pleas against the appellant, the surety in the recognizance of appeal will be liable to the appellee for the whole amount of the debt, damages and costs, recovered against the appellant/ When this amount does not exceed one hundred dollars, a scire facias should be issued on the recognizance by the justice, and proceed- ings had in like manner as where scire facias is issued against bail for stay of execution/' Before suing on a recognizance, it is advisable to issue execution on the judgment, and have a return of "-'no goods and chatties;" or if judgment has been rendered in the court of common pleas, to issue execution therefrom, and have a return of "-no goods, chattels, lands or tenements/' When the surety in the recognizance is insufficient, or his testi- mony is required for the appellant, or when the recognizance is insufficient in form or amount, the court of common pleas may order a change or renewal of such recognizance, and diz'ect that it be certified to the justice from whose judgment the appeal was taken, or that it be recorded in court/'' This proceeding by the court, in cflect, sets aside the original recognizance. If a recogni- zance be certified to a justice, he may proceed upon it as in other cases. Writs of scire facias must, in general, specify a certain time not exceeding twelve days from their date, and a certain place, at which the defendant shall appear to make his defence.* They are, in general, served and returned in the same manner as a sum- mons.* (r) Stat. 514, ^51. (t) Stat. 514, $49. (w) Stat. 514, $52. (s) I(1.ib.$47. (v) hi. ib. $50. (a) Id. 518, $70- §5,(A),(B).] APPEAL, 127 FORM OF A SCIKK FACIAS ON A RKCOGNIZANCE WHEN AN APPEAL IS DISMISSED. The State of Ohio, Township, County, ss. To any constable of said township, greeting: Whereas, A B recovered judgment against C D for the sum of [Acre insert the amount of tit e judgment and costs^ on the day of , in the year, , as appears of record; and where- as, K L , on the day of , in the year , became surety on the appeal of said judgment, for the said [Jiere insert the name of the appellant^ in the sum of \Jtere insert the amount of the appeal hondi\ to be levied upon the goods and chattels, lands and tenements, of him, the said K L , in case the said appellant should be condemned in said action and should fail to pay the con- denmation money, and costs that had accrued, or might accrue in the court of common pleas, as appears by the recognizance of the said K L ; and whereas, such proceedings were had on said appeal in said court of common pleas, that said court, on the day of , A. D. 18 — , did * dismiss said appeal, at the costs of said appellant, and which costs are dollars cents, and did remand said cause, for further proceedings, to me, G H , a justice of the peace in and for said township and county, * and whereas, said judgment, interest and costs remain due and unpaid, and said appellant hath failed to pay the same, as is alledged. This is, therefore, to command you to summon the said K L , to be and appear before me, at my office, in said township of , on the day of , in the year , at o'clock A. M. \or P. M. as the case may he^ to show cause, if any there be, why judgment should not be rendered against him for the [debt or damages,] interest and costs aforesaid, and why execution should not issue therefor: And of this writ make legal service and due return. Given under my hand and seal, this day of , in the year 18 — . G H , J. p. {Seal) FORM OF SCIRE FACIAS WHEN JUDGMENT IS RENDERED AGAINST THE APPEL- LANT IN THE COURT OF COMMON PLEAS, Pursue the same form throughout as the above^ except leaving out the part which is between the two *6', at the words "did dismiss," aiul •■■county and," and in place of the matter iMween the two *v, irisert the following: "render judgment in said cause so appealed, against said appellant and in iiivor of said appellee, lor the sum of [here insert (he amount of the debt or damages a?id costs^ foiuul bij the courti]''' 128 _ APPEAL. [Z^/.^CA. 10, §5,(B).J FORMS OF 110CKET ENTJllKS. All the subsequent proceedings in the suit alter the recognizance oi" appeal is given, should be entered on the docket witii the ori- ginal cause. WHEN AN APPEAL HAS JJEEN DISMISSED. Juhj 1, 1846. Received the following certificate: [fwre cojjy the statement and certificate of the clerk of the court of common pleas.'] June 5, 1846. Execution issued against the appellant. July 2, 1846. Execution returned, indorsed, \Jiere coj^y iJir rclnrii of the constable.'] July 5, 1846. Issued scire facias on the above recognizance, against K L , [tlie surely.'] and delivered to I J , constable, for appearance July 14, 2 o'clock V. M. Juhf 6, 1846. Scire facias returned, '•^Personally served on the 5th oi' July., 1846, by reading to the defendant. "•'Fees . I J , Constable."" July 14, 1846, 2 o'clock P. M. The parties appeared, * trial had, and I do find that said C D [the appellant] hath failed to pay said judgment, &c., which remains due and unpaid, and no good cause being shown to the contrary, it is considered by me, that said A B recover of said K L the sum of \Jiere insert the sum total of the original judgment., interest and costs., or so much as remains unpaid.,] and his costs in this proceeding on scire facias, taxed at dollars cents. FORM, AVHEN JUDGMENT IS RENDERED IN THE COURT OF COMMON PLEAS AGAINST THE APPELLANT. Proceed as directed in the preceding form, from" the commence- ment of that form to the *, except as to the issuing of execution, and from that point as follows: Trial had, a certified copy of the record and judgment of the court of common pleas of this county, in the above cause, upon appeal, produced, w'hereby it is found that said court rendered judgment on the day of , 1 8 — , against said C D , in favor of said A B , for the sum of [here insert the amount for ivhich judgment was rendered and costs;] also, was produced a certified copy of the execnition issued by said court on said judgment, and the return of the sherifl'of county, \Jiere insert the return of the sher- ijf^] whereby it appears that said judgment is due and unpaid, and said judgment debtor having failed to satisfy said judgment, and no [Pri. 1, C/i. 20.] CERTIORARI. 129 cause being shown to the contrary, it is considered by me, that said A B recover of said K L , the sum of \]iere insert tlie sum total of the judgment and costs in the court of common pleas^ and the intej'est^ and also, his costs in this proceeding on scire facias, taxed at — dollars, — cents. After judgment has been obtained upon the recognizance of ap- peal, the surety may have execution on the original judgment, against the goods and chattels of the appellant. In such case, the justice must endorse on the execution, for whose use it is issued.* CHAPTER XX. CERTIOEARI. The writ of certiorari is issued by the court of common pleas, commanding the justice to send to them, sealed up and inclosed in the writ, a certified transcript of the record and proceedings then lately pending before him.'' All proceedings on the judgment, or on an execution which may be out, are superseded from the time the clerk of the court takes a certiorari bond.*^ The bond is generally given at the date of tho writ, and must be taken by the clerk of the court before thecfrri^Tari issues;*^ conse- quently, the fact that the certiorari has issued, is sufficient evidence that the bond has been given. A writ of certiorari may be allowed in term time, by the court of common pleas or supreme court, on cause shown, at any time be- fore satisfaction of the judgment; provided such time does not ex- ceed five years from the rendition of the judgment.® A writ of certiorari may also be allowed by a judge during the vacation of the court, but cannot be allowed nor issued in vacation, after the expiration of fifteen days from the day the judgment was rendered. If issued in vacation after t' at time, it is the duty of the justice to disregard it.^ If the judgment of the justice be affirmed by the court, they either certify their decision to him, or carry the judgment into effect (a) Stat. 519, $77. (''.) Stat. 515, §5j. (h) WilcoxV Forms and Prac. 246. (e) Id. lb. $57. rr) Stat. 515, $5«. (g) Id. lb. $56. 17 130 CERTIORARI. [Pl't. 1, Ck. 20.] themselves. If they certify their decision to the justice, by their clerk, execution should be issued on the judgment, as if no certio- rari had been allowed.^ In general, however, the court retain the cause, and render final judgment.*'(l) The writ of certiorari is executed by the justice making out a copy of his proceedings in the cause, and annexring thereto his cer- tificate,(2) and transmitting them to the court, by the party to the suit or any other person, inclosed and sealed up with the writ.' FORM OF THE RETURN TO A CERTIORARI. I have executed this writ, as will appear by the schedule herewith inclosed. G H , J. p. A justice ought not, before or after a certiorari is allowed, to alter his docket, except to correct clerical errors.'' He should, how- ever, copy into the transcript, the bill of exceptions that is made a part of the record. (g) Stat. 516. 561. (1) Wilcox's Forms and Practice, 247. (h) Id. lb. $61, 62. (k) Wright's Rep. 418. (1) As to the proceedings in court, Stc, on a certiorari, see Stat. 515, 516. (2) For the form of the certificate, see Part 1, Chap. 26, §4. CHAPTER XXI. OF THE STAY OF EXECUTION. SECTION I, IN WHAT CASES NO STAY OF EXECUTION IS ALLOWED. If. WHEN, AND FOR WHAT TIME A STAY MAY BE ALLOWED. III. OF PROCEEDINGS TO OBTAIN A STAY, AND FORM OF THE RE- COGNIZANCE. IV. WHEN AN EXECUTION MAY ISSUE NOTWITHSTANDING THE STAY. V. OF PROCEEDINGS BY THE PLAINTIFF TO CHARGE THE BAIL FOR STAY OF EXECUTION, AND FORM OF SCIRE FACIAS. VI. FORM OF DOCKET ENTRY AND JUDGMENT IN PROCEEDINGS AGAINST SURETY FOR THE STAY OF EXECUTION. VII. OF PROCEEDINGS BY THE PLAINTIFF ON THE ORIGINAL JUDG- MENT AFTER JUDGMENT, &,C., AGAINST THE SURETY FOR STAY OF EXECUTION. VIII. OF PROCEEDINGS ON THE ORIGINAL JUDGMENT BY THE SURETY FOR STAY OF EXECUTION. Sec. I. IN WHAT CASES NO STAY OF EXECUTION IS ALLOWED. No stay of execution is allowed on judgments rendered in the following cases, namely: First. On judgments rendered against any justice of the peace for refusing to pay over money by him collected or received, in his official capacity.* Second. On any judgment rendered against a constable for fail- ing to make a return, or for making a false return, or for refus- ing to pay over any money collected or received in his official capacity .•* Third. On judgments rendered against bail for the stay of exe- cution.*^ Fourth. In cases where judgment is rendered in favor of bail who have been compelled by judgment to pay money on account of their principal.*^ (a) Stat. 517. $65. (c) Stat. 517, $65. (b) Id. 531. 517. (d) Id. 879, $6. 132 OF THE STAY OF EXECUTION. [JP/7. 1, C/i. 21, Fifth. All other judgments which are not rendered under the provisions of the act defining the powers and duties of justices of tlie peace and constables, in civil cases.® It is believed that no stay of execution can be allowed in ordi- nary criminal prosecutions, instituted in the name of the State, to punish individuals ibr a violation of the criminal law. Some sta- tutes, however, impose fines or penalties, and authorize an action of debt to be brought therefor; other statutes authorize private individuals or public ofiicers to sue in their own name for certain penalties: in these cases, it is believed that a stay of execution must be allowed.^ Sec. II. — WHEN, and for what time, a stay of execution may be ALLOWED. In all cases except those above mentioned, a stay of execution may be allowed, and graduated as follows,*' namely: First. On any judgment ^or Jive dollars^ and under^ the stay shall be for sixUj days from the time of the rendition of the judg- ment. Second. On any judgment for oyer Jive dollars^ and under twenty dollars^ the stay is ninety days. Third. On any judgment for twenty dollars^ and under Jifty dol- lars., tliC stay is for r,..; hundred and Jifty days. Fourth. On any judgment {or Jifty dollars arid upwards., the stay is tu-o hundred and forty days. Fifth. Where judgment is obtained (and remains unpaid) against a surety, and a stay is taken by him, and he obtains for his security judgment against the principal, stay of execution must be allowed on the last mentioned judgment only so long that the stay will ex- pire one month before that allowed to tlie surety on the judgment against him.* Sec. III. — OF proceedings to obtain a stay of execution, and the form of the recognizance. In cases where the defendant is entitled to a stay of execution, he must, as the foundation of the stay, enter into a recognizance, with such good and sufficient surety as the justice may approve, and resident in the county ,'' within ten days after the rendition of the judgment.* If during "the ten days the term of office of the justice who rendered the judgment expires, such justice may, notwith- standing, take bail for the stay."" (e) Stat. 516, $63. (i) Stat. 878, $5. (g) Compare $63, p. 516, Stat., with $40, p. (k) Id. 516, $63. 512; and see 5 Ohio Rep. 442. 270- (1) Id. 530, $114. Wri2lil'9 Rep. 314. (•") ^^- ^26, $108. (h) Stat. 517. §2,3,4,] OF THE STAT OF EXECUTION. 133 FORM OF RECOGNIZANCE FOR STAT OF EXECUTION.(l) In the action of A B against C D , I, K- L , do acknowledge myself [or if there he more than one sitretxj^ say^ We, K L and J ^ S , do acknowledge our- selves] bail for C D , for stay of execution, for the sum of \here insert the amount of the judgment^ including cosis^'\ to be levied of my [or our] goods and chattels, lands and tenements, if default be made in the condition following, which is, that the said C D shall pay the amount of the judgment rendered in the action aforesaid, together with the interest and costs, and the costs that may accrue. [Signed^ K L , J o . Taken, signed and acknowledged, this day of , in the year 18 — . G H , J. p. The recognizance, as well as all other forms prescribed by law, should be written out in full. If this be not done, and a party should suffer a loss in consequence of the negligence of the justice, he will be liable to such party for all damages." When the person against whom a judgment has been rendered refuses or neglects to enter into a recognizance, and fails to satisfy the judgment, the justice must, unless otherwise directed by the plaintiff, or his agent, immediately issue execution," without waiting until the expiration of the ten days to ascertain whether the party can enter into the recognizance. If, however, within the ten days and after the execution is issued, a recognizance be entered into, such execution should be recalled, by an order of the justice. p It is not the duty of the justice, in such case, to seek the constable, nor to serve the order; but it will be sufficient if he gives the defendant an order recalling the execution, directed to the constable. Sec, IV. IN WHAT CASES AN EXECUTION MAT ISSUE NOTWITHSTAND- ING THE STAT. When bail for the stay of execution removes into any other county or State before the stay expires, the justice must, on demand of the plaintiff, or his agent, issue an execution against the defendant to the original judgment as in other cases.i (n) 4 Ohio Rep. 331. (p) Stat. 517, $68. (o) Stat. 517, $66. (q) Id. 518, $73. (1) Tills form will be found in Stat. 527. The statute requires the recognizance of the defendant as well us the surety, [Id. .510, §6.3,] but the form of the i-ecogni- zance only requires the surety to enter into it. 134 OF THK STAY OF EXECUTION. [Pr^. 1 , C//. 21, So, when the hail for tho stay makes and files an afTidavit, that by delaying the execution until the full time of the expiration of such stay, he may be compelled to pay the jud^nncnt,(2) the justice must issue execution against tho iudtj;menl del)tor, as in other cases. The bail are not thereby discharged from liability, but may be proceed- ed against as if such execution had not issued/ But if the judg- ment debtor, within ten days after a hvij is made by such last men- tioned execution, enters into a farther recognizance, for the stay of execution during so much of the first stay as remains then unex- pired, and pays the costs of the execution so issued against him, the justice must take such farther recognizance, and recall the execu- tion/ If the justice improperly, and without any cause shown, issues execution before the stay expires, it is said the execution is a nul- lity, and he is liable for trespass/ Sec, V. PROCEEDINGS BY THE PLAINTIFF TO CHARGE THE BAIL FOR STAY OF EXECUTION, AND FORM OF THE SCIRE FACIAS. Upon the expiration of the period for a stay, an execution must be issued in the first instance (and before the bail can be made lia- ble) against the goods and chattels of the party against whom the judgment was rendered,^ If the judgment debtor dies before such execution is issued, no proceedings can be had on the judgment, and consequently none against the surety. It seems, however, where execution has been issued upon a judgment, and before its return, the defendant dies, and the execution is in fact returned unsatisfied, proceedings may, in such case, be had against the bail, though the judgment debtor left personal property sufficient to sat- isfy the judgment,''' When sufficient goods and chatties of the judgment debtor can- not be found to satisfy the execution, and that fact has been return- ed by the constable, the justice must, unless otherwise directed by (r) Stat, 518,575. Cv) Stat. 517, $69; Wright's Rep. 449. (s) Id. 519, $76. (w) Wright's Rep. 446. (t) lOSerg. and R. 188. (2) The affidavit may be in the form following-: vs. C The State of Ohio, • County, ss. C D . 3 K L , the surety for the stay of execution on the judg-ment in the above cause, makes oath that he is appreliensive, and verily believes there is danger, that by delaying- execution until the expiration of the full time of said stay, he will be compelled to pay said judgment. [Signed,] K L , Subscribed, and sworn to, this day of , A. I). 18 — . G H , J. p. §5.] OF THE STAY OF EXECUTION. 135 the judgment creditor, or his agent, proceed by writ of scire facias against the bail.^ Where a second and further recognizance has been given, as may sometimes be done,(3) the person who last became surety for the stay must be first proceeded against by scire facias, and judgment thereon; and when it appears by the return of the constable upon an execution issued against such surety, that he has no goods and chattels whereon to levy, proceedings by scire facias may then be had upon the first recognizance.'' If the surety reside in another township of the county, the justice should proceed in the same manner as if the surety resided in his proper township.*^ FORM OF SCIRE FACIAS AGAINST BAIL FOR STAT OF EXECUTION. (4) The State of Ohio, county, ss. To any constable of the township of , greeting: Whereas A B recovered- judgment against C D , for the sum of [/lere state the amount of the deht^ or damages^ and costs^ according to the recovery^ on the day of , in the year eighteen hundred and , as appears of record; and whereas K L , on the day of in the year , became surety on behalf of the said C D for the payment of the amount of the judgment aforesaid, together with interest and costs, and the costs that might accrue, to the said A B , as appears by the recognizance of the said K L , which judgment, in- terest and costs, remain due and unpaid: this is, therefore, to com- mand you to summon the said K L to be and appear be- fore me, at my office, in the township of , in the said county, at o'clock, A. M., {or P. M.,] on the day of , (5) in the year , to show cause, if any there be, why judgment should not be rendered against him for the debt, [or damages,] in- terest and costs aforesaid, and why execution should not issue therefor; and of this writ make legal service and due return. Given under my hand and seal this day of , A. D. . G H , J. p. [/S^ea/.] (a) Stat. 517, $69. (c) Id. 522, §90. (b) Id. 519, $76. (3) Under what circumstances a furtlior recog-nizance may be given, see the preceding' section of this chapter. (4) This form will be found in Stat. 528. (5) The statute (Stat. 518, §70,) re<[uires that the scire facias sh.all specify a time, not exceedinfr twelve days from the date thereof, and a certain place, at which the defendant shall appear and answer the same. 136 OF THE STAY OF EXFXUTION. [Prt. 1, Ck. 21, A scire facias is in general served and returned in the same man- ner as a suniinons,'^(G) and may be served in any township of the county wherein the surety resides,* Upon the return ol" the scire facias served, and on the day men- tioned therein for the ajipearance of the defendant, the justice (un- less good cause be shown to the contrary) must render judgment against tlie bail for the amount of the original judgment, interest, and costs, and the costs that may have accrued, (or such part there- of as may remain unpaid,) and for the costs in the proceeding by scire facias; and unless otherwise directed by the plaintiff, oi- his agent, must forthwith issue execution thereon against the goods and chattels of such bail, as in other cases. ^ Sec. VI. — FORM of docket entries and judgment in proceedings AGAINST SURETY FOR THE STAY OF EXECUTION. After the entry of the original judgment in the cause, the subse- quent proceedings should be noted on the docket, thus: July 1, 1846. Execution fi. fa. issued and delivered to I J , constable. July 2, 1846. Recognizance entered into: [Here enter the recog- nizance: see form^p. 133.] Whereupon, the execution issued here- in was recalled. July 5, 1846. This day came K L , [the surety for the stay of executionl^ and made and filed his affidavit, in due form, that he is apprehensive by delaying execution until the expiration of the above stay, he may be compelled to pay the judgment. Exe- cution was therefore issued, and delivered to I J , con- stable. July 8,, 1846. This day, being within ten days after levying the last named execution, further recognizance was entered into. [Here enter the second recognizance for stay during so much of the first stay as remains at this time unexpired^ and then proceed {\ Whereupon, the defendant paid the costs of said execution, being cents, and the same was recalled. August 1, 1846. Stay expired. Execution issu:d against the defendant, and delivered to I J , constable. August 10, 1846. Execution returned, indorsed, [here enter the return of the constable^ August 11, 1846. Issued scire facias against M N , [the surety on the last recognizance^ and delivered to I J , con- stable, for appearance on the \lth August^ 1846, at 2 o''clock^ P. M. (d) Stat. 518, $70. (e) Id. 518, $71. (e) Id. 522, $90 (6) As to the mode of serving- and returning- a summons, see pages 32, 33. §B, 7, 8.] OF THE STAY OF EXECUTION, 137 August 13, 1846. Scire facias returned, "Personally served, on the day of , 1 8 — , by reading this writ to the defendant. '■'■Fees, . I J , constable." August 17, 1846, 2 O'clock^ P. M. The parties appeared, trial had, and no good cause shown to the contrary, it is considered by me, that said A ^ B , [tlie plaiuiijf to the original action^ recover of said M N [the surety] the sum of , \_here insert the sum total of the original judgment^ interest^ and costs^ and the costs that have accrued on the judgment^ or so much as remains unpaid^ and then proceed^ and his costs herein taxed at dollars, cents. August 18, 1846. Issued execution against M N , [the judgment surety^l and delivered to I J , constable. September 2, 1846. Execution returned, indorsed, [liere copy the return of the constable.] September 3, 1846. Issued scire facias against K L , [the surety upon the first recognizance^ and delivered to I J , con- stable, for appearance, September 11, 1846, at — o'' clocks F. M. \Hei-e enter the return., proceedings., and judgment., in like manner as upon the first scire facias., the form of which i^ given above.] Sec. VII. — OF proceedings by the plaintiff on the original judg- ment, AFTER JUDGMENT AND EXECUTION AGAINST THE BAIL FOR STAY. When the original judgment remains vmsatisfied, after execution has been issued and returned against the surety for stay of execu- tion, and this fact appears by the return of the constable, the plain- tiff, or his agent, may then demand and have execution on the ori- ginal judgment.*^ Sec. VIII. OF PROCEEDINGS BY THE BAIL ON THE ORIGINAL JUDG- MENT. After judgment is rendered against the surety for stay, the origi- nal judgment remains good for the use of the surety, and he may at any time thereafter, although he may have paid nothing, sue out execution on such judgment.*^ When an execution is issued for the benefit of the bail, that fact should be indorsed by the justice upon the execution.® If the defendant has removed, or resides out of the county where the judgment was originally given, and the bail have paid the whole or any part of the judgment, they may take a transcript, and sue the defendant by scire facias., before a justice in the township to which the defendant has removed.^ (c) Stai. 518, $72. Tlic slatutc only mentions (d) Id. 519, $77. a ca. sa., but constructively it pcriinp:s allows a fi. (e) Id. ib. fa. to be issued. (^) Id. 879, $6 and 7. 18 CMAPTEK XXII. OF THE ISSUING AND FORMS OF EXECUTIONS. SECTION r. WHEN AND WilAT KIND OF KXKCUTION MAY BE FIRST ISSUED. H. IN WHAT CASES AN EXECUTION MAY ISSUE OUT OF THE TOWNSHIP. III. WHEN A VENDITIONI EXPONAS MUST HE ISSUED. IV. FORM OF A FIERI FACIAS. V. FORM OF AN EXECUTION AGAINST THE GOODS, CHATTELS AND BODY OF THE DEFENDANT. VI. FORM OF AN EXECUTION AGAINST THE GOODS AND CHAT- TELS OF CO-DEFENDANTS, WHERE SOME OF THEM ARE SURETIES. VII. FORM OF AN EXECUTION AGAINST EXECUTORS AND ADMIN- ISTRATORS. VIII. FORM OF A VENDITIONI EXPONAS. Sec I. WHEN AND WHAT KIND OF EXECUTION MAY BE FIRST ISSUED, An execution cannot be issued upon a judgment against a town- ship.(l) In other cases in which a stay of execution cannot be al- lowed, or is not immediately entered, or an appeal taken, or the judgment and costs paid, it is the duty of the justice, unless other- wise directed by the plaintiff or his agent, to issue execution against the goods and chattels of the defendant. This writ is called a Fieri Facias. If the justice, without authority from the plaintiff, delay to issue the execution, by means of which the plaintiff loses his debt, the justice will be liable for such loss. (1) III such cases, an abstract of the judgrnent and costs must be made out by the justice, and delivered to tlie clerk of the townsliip. >Sfuf. 95fi, §33. Tiie township clerk then notifies the trustees that a judgement is obtained, and they must draw an order on the townsliip treasurer, in favor of the justice or clerk, for the amount of the judgment and costs. Id. lb. If the trustees refuse to g-ive the order, or if the order be issued and the treasurer sliould refuse to pay it wlien presented, and while there are funds in his possession, the court will interfere and compel payment, or an assessment of a tax to raise the funds. Wright's Rep. 292. [Pr/. 1, C7/. 2:2, §1.] of issuing executions. 139 When the judgment is agamst two or more co-defendants, and a certificate has been entered on the docket, that one or more of the defendants were sureties, the execution should be issued according to the form hereafter given.(2) The property of the principal debtor, within the jurisdiction of the justice must, in such case, be sold and exhausted, before a levy can be made on the property of the surety.* The justice should, in general, after the expiration of a stay of execution, issue an execution ; though he is not bound to do so, un- less the plaintift' or his agent order it. Such order to a justice when not in his office, though in the township, unless in writing, would not, it seems, subject him to suit for neglect.'' As to an execution for the body. This writ is sometimes called a ca. sa. w^hich is an abbreviation of the words capias ad satisfaci- endum. It cannot be issued against an executor or administrator, or corporation; nor against such persons as are privileged from arrest. If suit has been commenced by a capias ad respodendum.^ issued upon affidavit filed as hereinbefore directed,(3) an execution for the body may issue on the judgment, without any further affidavit. Where judgment is obtained for a fine or penalty, or against an attorney at law, justice, constable, or other public officer, for moneys collected, or for any misconduct or neglect in office or professional employment, an execution for the body may issue, at the request of the plaintiff", his agent or attorney, without affidavit.*^ Formerly an execution for the body could be issued, at the re- quest of the plaintiff", but now, no execution for the body can issue, except in the cases just mentioned, unless the plaintiff", his agent or attorney, shall satisfy the justice by affidavit, (and other testimony, if required by the justice,) of one of the following particulars:^ 1st, That the defendant has removed, or is about to remove any of his property out of the jurisdiction of the justice, with intent to prevent the collection of the money due on the judgment; or, 2d, That the defendant has property, rights in action, (that is, notes, accounts, bonds, or other claims,) evidences of debt, or some interest or stock in some corporation or company, which he fraud- ulently conceals, or unjustly refuses to apply to the payment of the judgment; or, 3d, That the defendant has assigned or disposed of, or is about to assign or dispose of his property, or rights in action, with intent to defraud his creditors, or give an unfair preference to some of them; or, 4th, That he has converted, or is about to convert his property into money, with intent to prevent its being taken on execution; or, (a) Stat. 511,531. (c) Stat. 647, 52 ; Id. 517, $66. (b) Wright's Rep. 748. (d) Id. 647, 648, 649. (2) Sec Section 0, of this Chapter. (3) See Part 1, Cliapter ^, Section 2. 140 OF ISSUING EXKcUTioNs. IPrt. 1, Ch. '2'-2^ 5tli, That he IVaudulcnily contracted the debt, or incurred the olilijration on wliich the judgment was rendered; or, 6th, That he is al)out to remove his l)ody out of the township; or, 7th, Tiiat he lias converted his property into money for the pur- pose of phicing it beyond the reach of his creditors; or, 8th, That he is not a citizen or resident of this State. The affidavit for an execution for the body, may be in the form followinii;: A B- vs. * ( Judgment for Plaintif on docket of G — H — , ^ ^^-j-j ^ J. p., township. The State of Ohio, county, Township, ss. The said A Ji , [or say^ E F , agent for said A B ; or say^ E F , the authorized agent of said A B , being the assignee of said judgment, as the case may he^ makes solenni oath that the above named C D , [liere state one of the causes above mentioned for the iss7/wg a ca. sa. with the jyarticulars and circumstances^ ^-c.^ if any^ and further affiant saith not. [Signedl^. A B . Sworn to and subscribed before me, this day of , 1 8 — . G — H , J. p., towaiship. Before the statute requiring an affidavit to be filed as above men- tioned, the usual command of an execution against the body, was, to levy on goods and chatties, and for want thereof, to take the body. This form is still proper when execution for the body may be issued without an affidavit. Execution, however, may issue against the body alone, when the affidavit is filed and a capias ad respondendum or execution for the body is allowed under the statute, as above mentioned; or against the property and body, whichever the appli- cant desires.(4) Sec. II. IN WHAT CASES AN EXECUTION MAY ISSUE OUT OF THE TOWNSHIP, When the defendant resides out of the township, but in the same county, in which the judgment was rendered, execution may issue to any constable of the township in which the judgment was ob- tained, or of the township wherein the debtor resides; and where (4) For the form of the two khicls of executions for the body, see Sec. 5, of this chapter. §1, 2, 3, 4.] FORMS OF EXECUTIONS. 141 there is a return by the constable, upon an execution, that sufficient goods and chattels cannot be found in the township where the jus- tice resides who issued the execution, and it is suggested to the justice that the judgment debtor has goods and chattels within any other township of the same county, the justice may issue execution, either to a constable of his own township, or to one within the town- ship in which the goods are suggested to be;^ and the officer is bound, as in other cases, to execute the process. Sec. III. WHEN A VENDITIONI EXPONAS MUST BE ISSUED. if property has been levied upon, and it appear from the return of the constable that the same remains unsold for want of bidders, or from other just cause, the justice, unless otherwise directed by the party for whom the execution issued, or his agent, must imme- diately issue a venditioni exponas, thereby commanding any consta- ble to whom the same is directed or delivered, to expose the prop- erty for sale.'' The justice, at the request of the person entitled to the benefit of this execution, his agent or attorney, may add thereto a com- mand to the officer, that if the property remaining in his hands not sold, shall, in his opinion, be insufficient to satisfy the judg- ment, he shall levy upon sufficient goods and chattels to satisfy the same.' This writ should be delivered to the constable who has the pro- perty in custody. Sec. IV. FORM OF EXECUTION AGAINST THE GOODS AND CHATTELS OF THE DEFENDANT.(5) State of Ohio, county, ss. To any constable of the township of , greeting : Whereas, A B obtained a judgment against C D , before me, G H , a justice of the peace for the township aforesaid, for the sum of [here state the amount recov- ered., of debt or damages., and the costs only of the joay-ty recovering judgjnent.^ on the — day of , in the year 1 8 — . t You are therefore commanded, that of the goods and chattels of the said C D , you cause to be made the debt [or damages] and costs aforesaid, and costs that may accrue: * and of this writ make legal service and due return. Given under mv hand and seal, this day of , A. D. I 8—. G II , J. p. (,SV^//.) (g) Stat. 522, $91, 92. (h) Id. 520, $82. (i) Id. 486, $41. (•"i) This form will be fouiul in Slal. 52H. 142 FORMS OF EXECUTIONS. [Pfl. 1, Cfl. 22, The costs made by the party against whijni tlie judgment is ren- dered, arc not inchulcd in the execution, but must be indorsed upon it, and they are collected by the ollicer to whom the writ is direct- ed, in the same manner and at the same time that the judgment mentioned in the writ is collected.'' Sec, V. — FORM of execution against the goods, chattels and BODY OF the defendant.' Make out the execution in the same form as the preceding one^ to the *, and then from tJiat jioint jrroceed as folloivs: But for want of goods and chattels whereon to levy, then take the body of the said C D to the jail of the county, there to be safely kept in the custody of the jailor, until the said debt [or damages] and costs that have accrued and that may accrue, shall be paid, or he be other- wise legally discharged: and of this writ make legal service and due return. Given under my hand and seal, this day of , A. D. 18—. G II , J. i>. (Seal) EXECUTION AGAINST THE BODY ALONE, (commoiily Called a Ca. Sa.) Make out the execution in the same form as in the j^f'eceding sec- tion^ (Sec. 4,) to the t, and from that point proceed as follows: And whereas said A B hath, by affidavit, satisfied me that [liere state the cause of issuing the ca. sa. as set forth in the (iffidavit 071 Jile.'\ You are therefore commanded to take the body of the said C D to the jail of the county, there to be safely kept in the cus- tody of the jailor until the said debt [or damages,] and costs that have accrued and that may accrue, shall be paid, or he be other- wise legally discharged: and of this writ make legal service and due return. Given under mv hand and seal this dav of , A. D. 18—. G H , J. p. (Seal.) Sec. VI. — form of execution against co-defendants, avhere some of them are sureties. (6) State of Ohio, County, ss. To any constable of the township of , greeting: Whereas, A B obtained a judgment against C D , principal debtor, and E — F — , [here naining ail the sureties against (k) Stat. 405, $50. (I) Id. 528. (6) As to when tliis writ is to be issued, sec page 105. §5, 6, 7, 8.] FORMS OF EXECUTIONS. 143 whom judgment icas rendered^'} his surety, before me, G H , a justice of the peace of the township aforesaid, for the sum of [here state the amount recovered^ of debt and damages^ and the costs only of the party recovering judgment^ on the day of , in the year , You are therefore commanded, that of the goods and chattels of [Jiere insert the name of the principal debtor^'] you cause to be made the debt \or damages] and costs aforesaid, and costs that may ac- crue, and for want of such goods and chattels of said C D , whereof to make the same, then, that you make the same of the goods and chattels of [liere insert the names of all the co-defendants who are sureties for the principal debtor:'] And of this writ make legal service and due return. Given under my hand and seal, this day of , A. D. 1 8 — . G H , J. p. (Seal) Indorse on the writ the costs made by the party against whom the judgment is rendered." Sec. YII. — form of an execution against executors or adminis- trators. State of Ohio, county, ss. To any constable of the township of , greeting: Whereas, A B obtained judgment against C D- as administrator [or as executor, as the case may ^e,] of the estate of C — F , deceased, before me, G H , a justice of the peace for the township aforesaid, for the sum of dollars, debt, [and dollars, and cents, costs,] on the day of , in the year eighteen hundred nnd . You are therefore commanded, that of the goods and chattels which were of the said C F at the time of his death, and in the hands of the said C D , yet to be administered, you cause to be made the debt [and costs] aforesaid, and the costs that may accrue: And of this writ make legal service and due return. Given under my hand and seal this day of , A. D. 1 8 — . G H , J. p. {Seal.) Indorse on the writ the costs made or caused by the executor or administrator."" Sec. VIII. — FORM OF a venditioni exponas. State of Ohio, county, ss. To \Jiere insert the naine of the constable v^ho has the propertifin his jjossession., or if he be out of office or dead.^ then the urit should be directed., To any] constable of the township oi' , greeting: (m) Slat. 405, $50. 144 FORMS OF EXECUTIONS. [i"*//. 1 , C//. 22, §8,J You are hereby commanded, that those goods and chattels of C D , to wit; \Jiere insert a descriplion of the goods fi'om the inventor]!] which you [(>/• if the constabk vho seized the property be dead or out of office^ suy^ which one I J , late constable of said township] levied upon, and which remain unsold, you expose to sale, to satisfy as well a certain judgment obtained by A B against C D , before me, G H , a justice of the peace for the township aforesaid, for the sum of [//ere state the amount recovered of debt and damages^ and the costs onhj xchich ivere made or caused bij the party recovering j udgment!] on the day of , in the year 1 8 — , as [the costs that have accrued, being the sum of , and] the costs tliat may hereafter accrue: [Here add^ at the request of the person entitled to the benefit of the tvrit^ his agent or attorney^ the foil oiving further command: KxiA if the said property is in your opinion insutficient to satisfy said judgment, then levy upon and sell sufficient other goods and chattels of the said C D to make the balance:"] And of this writ make legal service and due return. Given under my hand and seal, this day of , A. D. 18 — . G H , J. p. {Seal) Indorse on the writ the amount of the costs made or caused by the party against whom the judgment is recovered." (n) Stat. 486, $42. (o) Stat. 405, $50. CHAPTER XXIII. OF PROCEEDINGS UNDER A FIERI FACIAS; AND HEREIN, SEC. I, AVHAT PROPERTY IS EXEMPT FROM EXECUTION, II. WHAT DESCRIPTION OF PROPERTY CAN BE TAKEN ON EXECUTION. III. WHEN, AND WHAT FORCE MAY BE USED, TO OBTAIN PROPERTY. IV. WHAT IS A GOOD LEVY, AND WHAT IS NOT, V. OF THE EFFECT OF A LEVY. VL WHEN PROPERTY LEVIED UPON MAY BE LEFT IN THE POSSESSION OF THE DEFENDANT, BY THE CONSTABLE OR BY THE PLAINTIFF, AVITH THF- FORM OF A BOND FOR RE-DELIVERY. VII. EFFECT OF DEATH OF EITHER PARTY TO A JUDGMENT, AFTER LEVY. VIII. OF THE ADVERTISEMENT AND SALE. IX. OF THE TITLE ACQ,UIRED BY A PURCHASER ON EXECUTION. X. OF THE RETURN OF EXECUTIONS, AND THE FORMS THEREOF. XI. SUGGESTION OF LANDS. XII. OF THE RIGHTS OF THE PLAINTIFF, AND THE DUTIES OF THE CON- STABLE, WHEN THERE ARE TWO OR MORE EXECUTIONS AGAINST THE SAME DEBTOR. XIII. WHAT MUST BE DONE WITH MONEY COLLECTED ON EXECUTION, &C. Sec. I. WHAT PROPERTY IS EXEMPT FROM EXECUTION. By act of March 9, 1 840,* it is provided, that each person who has a family, shall hold the following property, exempt from execu- tion or sale for any debt, damages, fine or amercement, to wit: First: The wearing apparel of such family, the beds, bedsteads and bedding necessary for the use of such family; one stove and pipe, used either for cooking or for warming the dwelling house; an amount of fuel sufficient for the period of sixty days, actually pro- vided and designed for the use of such family. Secondly: One cow, or, if the debtor own no cow, household furniture, to be selected by the debtor, not exceeding fifteen dollars in value; two swine, or the pork therefrom, or, if the debtor own no swine, household or kitchen furniture, to be selected by the debtor, not exceeding six dollars in value; six shoej), the wool shorn from them, and the cloth or other articles manufactured therefrom, or, in lieu of such sheep, household or kitchen furniture, to be se- lected by the debtor, not exceeding ten dollars in value; and suf- ficient food for such animals, when owned by the debtor, for the period of sixty days. Thirdly: The bibles, hymn books, psalm books, testaments and school books used in the family, and all family pictures. Fourthly: Any amount of provisions actually prepared and de- (a) Stnt. 487. 19 14G EXECUTION — LEVY. [7-*rM, C/i. 23, signed for the sustenance of such family, not exceeding forty dol- lars in value, to be selected by the debtor; and such other articles of household and kitchen furniture, or either, necessary for the debtor and his laniily, and to be selected by the debtor, not exceed- ing thirty dollars in value. "Fifthly: The tools and implements of the debtor, necessary for carrying on his trade or liusiness, whether mechanical or agricul- tural, to be selected by him, not exceeding fifty dollars in value. It is further provided, that the amount of beds, bedsteads and bedding, necessary for the use of such family, the amount of fuel sutiicient for the period of sixty days, actually provided and de- signed lor the use of such family; the amount of food for the use of the animals exempted from execution, for the period of sixty days, shall be determined by two disinterested householders of the coun- ty, to be selected by the officer holding the execution. And the value of the provisions, household and kitchen furniture, and the tools and implements of the debtor, necessary for carrying on his trade or business, exempted from execution, shall be estimated and appraised by said householders. On an execution against an executor or administrator, as such, his own pro[)erty cannot be taken. The officer can only seize the property of the decedent, whom the administrator or executor rep- resents. tSo, on the other hand, upon an execution against a person in his individual capacity, the property which he may have in his possession as executor or administrator, cannot be taken. The seal, registers and official documents of notaries public are exempt from execution.'' The goods and chattels of a public ambassador, or minister of a foreign State, and of his domestic servants, are not liable to be taken on execution.*^ Where execution is issued against the wife on a judgment obtain- ed against her before coverture, the goods that she had before mar- riage cannot be taken, for they vest in the husband by the marriage.*^ A constable by taking property that is exempt from execution, will render himself liable to an action of trespass, w'hich may be prosecuted in the court of common pleas. Sec. II. WHAT DESCRIPTION OF PROPERTY CAN BE TAKEN ON AN EXE- CUTION, The officer is authorized to seize and sell, as goods and chattels, all personal property of a tangible nature, except what is exempt by law. Growing corn, and other crops raised annually by labor, are chattels, and as such may be levied on before or after they are gathered.^ An officer has no right to cut down or gather a crop before it is ripe ;S but when a levy is made while the crop is unripe, he may (b) Stat. 601, $3. (e) 17 Johns. Rep. 12ft; 2 Id. 41S; 9 Id. 108. (c) See pa?e 29; and also Laws U. S. Vol. 2, Stat. 520, $84. 9 Cow. Rep. 39. p. 97, 98. (c) 7 Masg. Rep. 34. (d) 3 M, and S. 558. §1, 2.] EXECUTION LEVY. 147 then sell it, or wait until it shall be ripe.'' The purchaser will have a right to take care of, and to gather it.' Apples upon the trees, and all such things as grow annually with- out labor, are a part of the freehold, and cannot be taken by an execution unless severed from the freehold. The interest or estate of a tenant in lands held by an unexpired lease, is also a chattel that may be sold.'' If a lease be renewable forever, it cannot be levied upon or sold by a constable.' If there are fixtures upon land occupied by a tenant, which he has a right to remove, at or before the expiration of the lease, the officer may in general levy upon them as chattels of the tenant, to satisfy an execution against him. It is, however, a general rule, that where a tenant makes a permanent improvement upon rented land, such as a dwelling house, or out buildings, he cannot remove them, either before, or at the expiration of the lease, unless allowed to do so by the terms of the lease.*" There are exceptions to this rule. If a building, shop, or machine, be put up by a tenant, for the purpose of carrying on his trade, it is in general considered as his chattel property, which he may remove; as, where a tenant erects a house to carry on the business therein of making varnish;" or vats are erected by a soap boiler.^ It has been decided, that a cider mill and press erected by a ten- ant, at his own expense and for his own use, may be removed by him at or before the expiration of the lease, and consequently may be levied upon as his chattel. (2) If the agreement between the landlord and tenant be, that the tenant may remove his improvements, they are the chattel property of the tenant, and may, together with the leasehold estate, be levied upon and sold. In general, however, fences, buildings, cider mills, vats, &c., and other fixtures, are a part of the land, and cannot be sold as chatties upon an execution against the owner of the land.P Money of the judgment debtor, in his house or possession, may be levied upon, and must be credited (without sale) on the execution.'^ So, bank bills may be levied upon as money, •" and applied without sale to the discharge of the execution. Where an officer has an execution against a judgment debtor, and has at the same time money of the judgment debtor in his hands, collected on an execu- tion, it seems that the officer cannot levy upon such money until it is in the hands of the debtor.' (h) -2 Johns. Rep. 418. (o) 1 Palk. 3GR; 6 Cow. 665; 7 Cow. 319. (i) 7 Majis. Rep. 1i4. (p) 6 Cow. Rep. 665; .'5 East's Rop. 38. (k) 3 Oliio Rep. 449. 465; 7 Enz. C. L. Rep. (q) ] Cranrli 117; 1 I'ct. Cond. Rep. 261. 83. See 19 Johns. Rep. 73. (r) 12 Johns. Rep. 220. 395. The case of Good- (I) Stat. 289. enow vs. Duffield (WrigUrs Rep. 455) (m) 6 Eng. C. L. Rep. 19. docs not conflict willi tlie rule in tlie icit. (n) 2 East's Rep. 38. (s) 1 Ohio Rep. 275. (2) 20 Johns. Rep. 29. It would .seem from the decision in tliis cn.se, that tlie property which the tenant had a right to remove before the expiration of the lease, lie may remove afterwards, and that lie would in such case l)c only liable to nominal damag'es for entering upon the land to take the properly away. 148 EXECUTION LEVY. [Pr/. 1 , 67i. 23, Promissory notes, bonds and other contracts, private papers, ac- count books, and also bank shares, and shares in a public Hbrary, or other corporation, are not, in general, liable to be seized and sold upon execution.' Where property is honestly assigned, mortgaged or pledged by a judgment debtor, before levy, as security for a debt, it cannot be levied upon and sold by execution against such judgment debtor;' at least, not until the debt for which the assignment, pledge, or mortgage was given, has been tendered oj- paid.'' But if the de- fendant has hired the use of goods or chattels for a certain period, the ofRcer may seize and sell the goods, and the purcliascr will ac- quire the right to use them during the term they were liired by the defendant.* Sec. III. WHEN, AND WHAT FORCE MAY BE USED TO OBTAIN PROPER- TY ON EXECUTION. If the outer door of the dwelling house of the defendant be shut, the oflicer has no right to break it open in order to seize his goods on execution;'' nor, if refused admittance, can he open the door, though it be only latched. If he knocks at the door, and is told to walk in, by the defendant or one of the family, he may peaceably raise the latch and go in. By breaking open an outer door to exe- cute civil process, the officer becomes a trespasser,' and to kill him is not murder, but manslaughter only: and the better opinion seems to be, that when the writ is executed under such circumstances, the court will set aside the levy of the officer.(3) But the officer may, and it is his duty, to enter the open door of the house of the defen- dant, and seize his goods there found. ** When in the house, the officer may lawfully break inner doors, and trunks, in order to get at the goods.^ The officer, before he breaks open an inner door, need not demand admittance, unless there be a probability that by so doing it will be opened. The law will not permit him to use any unnecessary violence. ^ If goods of the defendant are brought to the house of another to prevent a lawful levy and to escajje the ordinary process of law, and the owner of the dwelling house connive with the defendant to effect this object, the officer, after denial on request made for admit- tance, may break open the outer door of the house to seize the goods of the defendant. If, however, goods are not placed in the house of a third person to avoid being levied upon, or are placed there for that purpose without the knowledge of the owner of the (t) 12 Mass. Rep. 506; 7 Td. 43; 15 Id. 534; (b) Yelv.29: Campb. 1; 22 Eng. C. L. Rep. 406. 9 Johns. Rep. 96; Wriirht's Rep. 455. (c) Cro. C. 537. (v) 1 Pick. Rep. 399; 4 Cow. 461. 467. (d) 5 Co. 92. (w) Storv on Bailni. 23R, 239. (e) 5 Johns. Rep. 352. (a) 7 T. R. 11; 8 Co. 191; 2 Cow. Kep. 543. (g) 4 Taunt. 619; 6 Id. 246. (.3) If it be a writ in a civil case for the body, the court will discharge the de- fendant when taken under such circumstances. Yelv. 89, i- n.{l) §3,4.] EXECUTION LEVY. 149 house, the officer will be a trespasser if he breaks open the outer door; but having obtained a peaceable admission, he may break open inner doors, and trunks, to get at the goods of the defendant. There is, however, this difference between entering the house, or breaking open the inner doors of the house of the defendant and of a stranger; that in the former case the justification of the officer does not depend on his finding, or not finding the defendant's goods therein; but in the latter case he is a trespasser, if the defendant had no goods in the house liable to be taken in execution.*^ A building standing separate and apart from a dwelling house, and not within the curtilage,(4) such as an out-house, or barn, or a store, shop, or warehouse, may be broken open.*^ If the property of the defendant is in a barn, or other out-house, of another person, which is not situate within the curtilage, it may be broken open under the same circumstances and liabilities as the inner door of the house of a third person. Sec. IV. — WHAT is a good levy, and what is not. To constitute a good levy, the officer must have the property under his view and within his power, as far as the nature of the property will permit. Where a sheriff' seized a few articles outside of a store, or warehouse, and proclaimed a levy on the goods locked up within the store, and not within view, the court held this not to be a levy, but that the officer ought to have broken open the store, and actually seized the goods.° Although an officer may levy upon part of the goods in a house in the name of the whole, and such levy will be good for all,^ yet, if after he has made the levy, he abandon the property to the possession of the owner, without tak- ing any immediate steps to remove it, and without taking bond under the statute for its delivery, it will in general be considered as an abandonment of the levy itself, and a subsequent execution, af- terwai'ds levied upon the same goods, would gain a preference.** Where the officer went into the house of the defendant, and stated that he came to levy on his goods, and, laying his hands on a table and saying, "I take this table," locked up his pxecution in the table drawei^, and took the key and went away without leaving any per- son in possession, or taking any further steps to obtain a control over the property, it was holden by the court that there was no claim on any of the goods by such a levy, and that the officer had neither actual nor constructive possession after he Icl't them/ It must not be supposed from what is here said, that the officer will lose his levy if he leave the goods for the purpose of procuring the (c) 5 Taunt. 771. (k) 1 Ld. Raym. 724. (d) 16 Johns. Rep. 287. (Ii) 4 Dnll. 213. f35R. 169, 4 Y.ntea, 194, .ind (e) Id. ill. casfis there cited. Contra, 3 Cow. Ucp.'2^2. (i) 1 M. and S. 712. (4) Curtilage — the inclosed yard aiouiul, and belonging to the dweUing house. 150 EXECUTION LEVY. [Pr/. 1, C//, 23, means of rcniovinfif thcin. On the contrary, an officer may always have a reasonable time to remove the goods. What is a reasona- ble time, must depend ujion the nature oi" the goods, and other cir- cumstances. If, for instance, a pile of firewood is levied upon, the levy will hold the property, although the constable omit for a few days to remove it.'' So, there may be cases where tlie property is of so little value in proportion to its weight and the expense and time required to remove it, that the levy would be good although the officer permitted the property to remain on the premises of the defendant until the sale. If all the possession be taken of which the thing levied upon is capable, it will be sufficient; thus, standing grain may be levied upon, and left in the field. Property, however, of a portable kind, should be taken possession of by the officer, unless the defendant will give security for its re-delivery. The officer cannot with his own money pay the plaintiff, and af- terwards levy the execution on the pi'operty of the defendant, even though it were agreed between him and tlie defendant that he should retain the execution and use it for his own indemnity; for by the payment, the execution is spent. Such agreements are ille- gal, as they tend to oppression and abuse. The officer, therefore, cannot take a bond or other security from the defendant, and detain the execution in his hands and use it afterwards to enforce the pay- ment of the money advanced by him.^ So, if the officer levies on goods, and pays the plaintiff with his own proper money, he cannot keep the goods for his own security; the levy is discharged, and gone." He may have his action for the money."* The plaintiff's releasing the levy, will in general discharge the judgment, and the plaintiff must then resort to the new contract, if any has been made. But such release of the levy will not dis- charge the debtor where he procures the lease by his own act, as, by pretending that the property is owned by others." Sec. V. — OF the effect of a levy. The moment the officer has the property under his view and con- trol by virtue of the execution, he has a right to take possession, and in genei'al becomes liable to the plaintitf and defendant for its application to the payment of the judgment. The defendant cannot, in general, after the levy is made, do any act, (as by assignment to the commissioner of insolvents,? or other- wise,) to change the effect of, or destroy the levy; nor can he main- tain an action for any wrong or injury done to the goods by any person who takes them or injures them while in the possession of the officer. His sole remedy is against the officer. "i If goods levied upon are claimed by a third person, and deliver- (k) 15 Johns. Rep- 428. (o) fi Cow. 192. (1) 7 Id. 426; 15 Id. 443; 12 Id. 207. (p) Wrizlii's Rep. 259. (m) Id. ib. (q) 2 Mass. Rep. 514; Story on Bailm. 96. (n) 3 Johns, Rep. 434; 14 Id. 87. §5,6.] EXECUTION RE-DELIVERY OF GOODS. 151 ed to him under the order of a justice, the levy is gone, and all the parties will then be in the same situation they were in before the levy was made. But when goods of the defendant sufficient to sat- isfy the judgment are seized on an execution, and the officer wastes them, or neglects to sell them, or misapplies the money arising from the sale, or fails to return the writ, the plaintiff must look to the officer for payment of the judgment; the debtor is discharged by an adequte seizure, and the plaintiff cannot have another execution, or levy/ So, when goods of the defendant, not sufficient to satisfy the judgment, are seized, the plaintiff must look to the officer for their value or avails, and cannot, before the goods are sold or the levy disposed of, have an execution against the body of the defend- ant/ The constable being responsible as well to the plaintiff as the defendant, may sue any person who wrongfully takes the goods from his possession, or otherwise unlawfully intermeddles with or injures them.' In such suit, the indorsement of the levy upon the execution will be sufficient evidence (imtil disproved) of the fact of the levy.^ Sec. VI. — WHEN the property levied upon may be left in the posses- sion OF the debtor, by the constable or by the plain- tiff, WITH form of bond FOR KE-DELIVERY. We have already seen that the officer ought not to leave proper- ty levied upon with the debtor, unless he gives security for its re- delivery. There are, however, some kinds of property which, from their nature, cannot be immediately removed. If, for instance, growing corn, or other crop not entirely ripe, be levied upon, it would be neither necessary nor right for the officer to immediately remove if^ But he could levy and sell, without removing it, and the purchaser would have a right to afterwards enter upon the land and gather it* The statute of this State provides, that any constable having levied on goods and chattels, of which he permits the party against whom the execution issued to retain the possession, is authorized to take such security for his own indemnity as he may require, that such property shall be delivered at the time and place appointed for the sale thereo£''(4) The constable is not bound, in any case, (r) 4 Mass. Rep. 403, per Parsons, C. J.; 12 (t) 2 Mass. Hep. 514; 9 1(1. 104; 1 Pick. Rep. Johns. Rep. 207; 7 IiL 42a; 4 Cow. Rep. 389. 417; 7 Id. 21. 310; 3 Oliio Rep. 225; (v) 7 Cow. Rep. 313. 5 Id. 173; Salk. 323; 4 Johns. Chy. (w) 2 Johns. Rep. 418; 7 Mass. 34, and see 7 Rep. 255. Cow. Rep. 5G0. (a) 6 Taunt. Rep. 369. (a) 9 Johns. Rep. 108. (b) Slat. 520, $83. (4) Form of a bond of indemnity for the rc-delivery of property taken on execution. Know all men by these presents, That \vc, A IJ , ami C I) , arc- lield and firmly Iximid unto 1 J , in the sum of dollars, for the 162 KXECUTION KK-nELIVERY OF GOODS. [Prt. 1, Ch. 23, to lenvc the property in the hands of the debtor, even if security be otiered for its re-delivery; and he oiiffjit in no case to do it, unless the security be ample: ior he is liable to the i)laintitr(G) at least for the value of the goods, in case they are not i^e-delivered, whether he take a bond or not.*^ The very object of the bond is to meet this liability. The del'endant, or other person Mdio has possession of the goods under the othcer, may probably maintain an action for a disposses- sion, or any injury done to them by a wjongdoer.'' Whether the constable may sue any constable or other person v^^ho takes or in- jures the pro}ierty while it is thus left in the hands of the defendant for safe keeping, is very doubti'ul.® He has a remedy, in such case, on the bond taken by him for the re-delivery of the goods. But if he takes no bond, or leaves them with any other person than the defendant for safe keeping, he may sue a wrong-doer who dispos- sesses such third person, or injures the goods.^ (c) 11 Mass. Rep. 163; 15 id. 10; 12 Johns. 337, the other way. Sec 13 Mass. Rep. Rep. 207; fi Ohio Rep. 4 19. 394; G Jolin's Rep. 106; 14 Mass. Rep. (d) Story on Bailm. 98, $133, where tlie cases 217; 7 Cow. Rep. 294; Story on Baihn. upon this suhject are reviewed. 95, §127; 8 Cow. Rep. 137. See anto (e) 6 Ohio Rep. 451, one way; Wright's Rep. p. 151. (g) Id.; payment of which we do liereby jointly and severally bind ourselves. Sealed with our seals, and dated this day of , A. D. 18 — . ■\Vhereas, the above named I J , constable of township, county, by virtue of a writ of execution duly issued, at the suit of A B , by G II , a justice of the peace in and for said county, on the — day of , A. D. 18 — , to make of the goods and chattels of C D , the sum of [here insert the amount of the execution, and costs,] hath seized the following goods, [here give a schedule of the goods,] and left them in the possession of said C D , at the request of the above obligors. Now, if the said C D shall re-deliver said goods and chattels unto the said I J , in as good condition as tliey are now in, at the time and place, when and where tliey may be offered for sale under said levy; and in default thereof pay all the damages, costs, charges, and expenses, to which the said I J may be liable or sub- jected by reason of such non-dcliveiy of said property; then this obligation to be void: otherwise in full force and virtue. A B , (Seal.) C D , (Seal.) (6) The officer, when he retains the goods, or leaves them with any other per- son than the debtor, is in general liable also to the debtor for a due re-delivery of the property seized, in case of the satisfaction of the judgment by ]5aymcnt or otlierwise; it behooves him therefore, to take care that he does not put them in jeopardy by any act of his own. If the goods are lost by his negligence, or the negligence of sucli third person with whom he leaves them, he will be responsi- ble therefor. 6 Johns. Rep. 9. But what degree of negligence M'ill make the officer responsible, does not seem to have been directly decided. lie would doubtless be responsible for gross negligence, and fraud; and would probably be liable for a loss which occurred from an omission of tiiat ordinary care which it may be supposed a man of common prudence would have exercised in the pre- servation of property of a like kind, under like circumstances. Story on Builm. 96, §130. §6.] EXECUTION RE-DELIVERy OF GOODS. 153 When cattle, or live stock, are taken in execution, the justice may allow the constable for keeping them a reasonable compensa- tion, which is taxed and collected with the other costs of the suit.* The statute does not allow any compensation to an officer for merely removing goods. It may happen that a plaintiff, in order to secure his judgment, will direct a levy to be made, and from motives of humanity, and without any intention to commit a fraud, will also direct the officer to take a bond for the re-delivery of the property, and to proceed no farther with the execution until further ordered, or until som.e specific day. If such a practice were sanctioned by the law, so that a subsequent execution, issued on another judgment, could not take the same goods, it would open the door to daily collusion and fraud. The law makes no exception in such cases, and could not, practically, in favor of humane plaintiffs. When, therefore, such an arrangement, or any arrangement by which the defendant re- tains possession of the goods, and further proceedings on the exe- cution are stopped or stayed by the plaintiff but for a day, a subse- quent execution may afterwards, and while such stay remains, be levied upon the same goods, and will obtain a preference and prio- rity over the first levy and execution. ''(7) The law will not per- mit a plaintilt to use a levy merely as a security for a judgment, if such levy will interfere with other executions, (a) Stat. 519, $80, (b) 3 Wash. C. C. Rep. 60; 11 Johns. Rep. 110; Rep. 419; Salk. 720 ; 3 Raw. Rep. 341 ; 8 Ser^. 1 Wils. Rep. 44; 4 Dall. Rep. (2d ed.) 213. and Raw. 505; 17 Johns. Rep. 274 ; 7 Cow. Rep. 358. 159. 169. n. (a); Cowp. 432; 2 VVcnd. 310; 15 En^'. Cora. Law Rep. 165. (7) In the case of Berry vs. SmiUi, (3 Wash. C. C. Rep. 60,) Washington-, J., says: "The end and object of an execution is to obtain satisfaction of the debt for which it issued, and being delivered to tlie proper officer, it gives to the creditor a priority; because the law points out to that officer his duty, which is, to execute it without delay. In doing this, the property of the debtor is changed and vested in the officer, for all the purposes of that execution. The change of possession by levy gives notice to all the world of the real situation of the debtor, in relation to the property seized, and prevents them from being deceived by the appear- ance of wealth, to which the debtor lias no just pretensions. If the officer is or- dered by the plaintiff to levy on, but to leave the property with the owner until he shall be otlierwisc directed, the party undoes by such an order all that the offi-. cer does by the seizure: it is no levy in respect to third persons. It is not neces- sary that tiie officer should remove or advertise tlie property for sale immediately, if this be done in a reasonable time. But, he has effected nothing, if, by the pLiin- tiff's order, he leave the prof)crty with the debtor, to exercise every act of owner- ship over it which he could have done before the seizure. It will be perceived, that in laying down this principle, the court makes no distinction between a sus- pension for one day, or one or more months. The order of suspension by the plaintiff, deprives the act of the officer, in pursuance of it, of .all its force .ind ef- fect, until it is restored by a countermand; and if in the meantime, (while the sus- pension continues,) a second execution is taken out and levied, the former must be postponed." 20 154 EXECUTION RE-l/ELIVilRY OF GOODS. [Prl. 1, C/d. 23, If the iilaintilT directs that the goods remain with the debtor, without bond ibr their rc-dehvery, while they so remain, the Hen of the execution is in general lost. Tlie ibrce and effect of the levy may be restored by a countermand of such direction, but not after a levy has l)ecn made upon the goods by a suljsc(iucnt execution.*' And even where a bond has been executed l)y the defendant for the re-delivery of the in-oi)erty, if the plaintilf afterwards give any in- dulgence to the defendant by which he stops the regular course of executing the writ, he will so far lose hislien on the property, that if, while the proceedings are thus stayed, another execution be is- sued and levied, it will hold the property. So, when goods remain in the possession of an officer under a levy for a long time, by the consent of the ])laintiir, a subsequent execution issued on another judgment may be levied upon them, and will gain a preference.'^ There may be circumstances arising from the nature and situation of the property itself, which will justify the plaintiff in delaying a sale. If the property be in such a condition that a great sacrifice would be made upon it by an immediate sale and delivery, the plain- tilf will not lose his lien by a delay until such time that the sacrifice will not be incurred by a sale. Thus, where hides undergoing the process of tanning, and in vats, were levied upon in the fall of the year, and could not be sold until spring without a great sacrifice, and the plaintiff therefore directed the officer to delay a sale until spring, it was held by the court that this did not render the execu- tion dormant, or fradulent, so as to give subsequent executions a preference.^ Sec. VII. EFFECT OF THE DEATH OF EITHER PARTY TO A JUDGMENT^ AFTER LEVY, Although an execution cannot issue rtfter the decease of either of the parties to a judgment, yet if an excution has been issued and levied during the lifetime of both parties, the death of either, or both, does not prevent the officer from proceeding to advertise and sell the property, in the same manner as if both were living.^ The justice may, as in other cases, issue a venditioni exponas for tliat purpose. Sec. VIII. — OF the advertisement and sale. The statute provides, that property taken in execution shall be advertised for sale at four of the most public places within the township where seized, at least ten days previous to the time ap- pointed for such sale; and that the sale shall be held between the hours of ten o'clock in the forenoon, and four o'clock in the after- (c) Sec the authorities last cited. (g) 7 T. R. 20 ; 1 Bos. and Pul. 571 ; 5 Oliio (d) 15 Eng. Com. Law Rep. 165. Rep. 221 ; 2 Id. 290. (e) 7 Cow. Rep. 560. §7,8.] EXECUTION SALE ON. 155 noon, at the house or on the premises where taken, or at one of the most public places within the township.''(8) The articles should be pointed out to the bidders, and should not be sold in a mass.(9) If the property cannot be sold without a very great sacrifice, (such as a bid of ten dollars for a horse worth forty,) the officer ought not to strike it off, if it be the first time it is offered for sale, but may return the writ, that it remains unsold in his hands for want of buyers, even if the plaintiff instruct him otherwise.* But he should not perhaps withhold the property in this way, from sale, more than once. If there be time, he may again advertise. And the officer must in such cases act in good faith; for he will render himself liable for a false return, if, in order to favor the defen- dant, or to prevent a satisfaction of the execution, he refuses to strike off the property. If the justice of the peace who issued, or the constable who holds the execution, purchase at such sale, either directly or indirectly, they will be liable not only to the action of the party injured, but to a fine of not less than five, nor more than one hundred dollars, which may be recovered against them in an action of debt, in the name of the State for the use of the township.'^ If, with a view to prevent competition, and for the purpose of purchasing together property offered for sale, by a public officer^ two or more persons agree not to bid against each other, the sale to one, for the benefit of all, will be void.' This rule, however, is not ap- plicable to a sale at public auction, where the owner of the property voluntarily puts it up to sale. .i A person who bids at an auction, or other public sale, has a right at any time before the article is struck down to him by the officer or auctioneer, to withdraw his bid; but when the hammer is down, the sale is comj)lete, and both parties are bound by the contract.'" If the purchaser then refuses to pay for the article, the auctioneer or officer may, it is believed, again put it up and sell it, and the first purchaser will be liable for the difference between his bid and that for which the article finally sold." Hi) Stat. 519, yem- ises, by metes and bounds^ or bij Uie adjacent premises^ or in any oilier manner^ so that the descinption rmll sliow the situation and extent of the premises {] situate in said township, the undersigned did levy upon said interest and leasehold estate of said C D , above de- scribed; and by virtue of the same writ, did, on the day of , in the year , advertise, as tiie law i)rescribes, said interest and estate of said C D , to be sold at , in said town- ship, on the day of , in the year -, and on said day of sale, between the liours of 10 A. M. and 4 V. M. of the cloclx, put up said interest and leaseiiold estate of said C D , at pub- lic vendue and outcry; and E S having bid therefor dollars, cents, and he being the highest and last bidder, said interest and leasehold estate of said C D , yet to come, &c., as above described, was struck ofl" and sold to him; and the pro- ceedings in the premises, and said writ, duly returned: all which will more fully and at large appear, reference being had to the docket and files of said justice's court. Now, therefore, the under- signed, constable as aforesaid, doth hereby, by virtue of the pro- ceedings above referred to, and in consideration of said purchase money paid by said E S , assign, transfer, and convey to him, his heirs and assigns, the said interest of said C D in the residue of said term of years, to come and unexpired, in said premises above described. I J , Constable p^^ ,-, of township, county. •- '^ Executed in presence of A B— , C D . The constable should acknowledge the bill of sale in the same manner as if it were a deed. Sec. XI. SUGGESTION OE LANDS, When an execution, in a civil or criminal case, is returneil unsat- isfied, in whole or in part, for want of goods and chattels found whereon to levy, and it is suggested(t4) to the justice that the judgment debtor hath lands or tenements, the justice must enter such suggestion on his docket, and deliver to the judgment creditor or his agent, on application, a transcript of the judgment, proceed- (14) This suf^g-estion may be made to the justice b}' the plaintiff or his ag-ent, or the constable may, in his return to the execution, say, " The defendant is pos- sessed of lands liable to levy and sale on execution." §10,11,12.] EXECUTION PRIORITY OF. 163 ings, suggestion, and the costs that have accrued tliereon." The ti-anscript in such case, as in all others, should contain the return of the constable to the execution. The suggestion above mentioned may be in the following form, and should, of course, be entered af- ter the entry of the return to the execution: June 15, 1850. It is suggested to me that said defendant is pos- sessed of lands liable to levy, and sale on execution.(15) Sec. XII. — OF the rights of the plaintiff, and the duties op THE CONSTABLE, AVHEN THERE ARE TWO OR MORE JUDG- MENTS OR EXECUTIONS AGAINST THE SAME DEFENDANT. In analogy to the statute regulating judgments and executions from the court of common pleas, as far as that analogy can be ap- plicable, it is believed that an execution issued by a justice does not bind the goods mitil actual levy.(16) If two executions are delivered to the same officer on the same day, no preference should be given to either of them, and both may be levied upon the same property, and the money made, dis- tributed in proportion to the amount of the several executions; in all other cases, the writ first delivered should be first satisfied by levy. If executions are delivered to different constables on the same or different days, against the same defendant, the execution first levied will hold the property. (17) When an execution obtains a right and priority by levy, a subse- quent or other execution in the hands of another officer, cannot, in general, be levied by him upon the same goods; because he cannot take them from the }>ossession of the officer. When an execution is delivered to I. J. on one day, and another execution is delivered to T. P., another constable, on a subsequent day, against the same debtor, and T. P. levies his execution, and thereby gains a preference, so that I, J. by his negligence, is not (w) Stat. 521,587. (l-'j) As to the proceeding's in the court of common pleas upon the sugTg'estion of lands, sec Stat. 621, §88, 89. (16) I am not aware that this question has been settled. By the common law a fi.fa. bound g'oods and chattels from its teste, ftnd if the judgment debtor, after the execution issued :in) 1 Conn. Rep. 337. (1) As to the powers and duties of an officer to levy, see preceding chapter. [ Frt. 1 , Ch. 24, § 1 , 2.] EXECUTION for goods and body. 1 67 Sec. II, — of the arrest and commitment — the effect thereof — WHEN the defendant MAT BE ENLARGilD AND FORMS OF RETURNS. The arrest on an execution against the body, may be made at the same time, in the same manner, and in the same place, as an arrest upon a capias: the duty of the officer in both cases is, in this res- pect, the same. (2) When an officer has civil process, whether a capias or execution, against a person who is privileged from arrest, he may, in generaU arrest the defendant v>ithout being liable to an action on account thereof, for it would be unreasonable to re(juire an officer to deter- mine, in all cases, who are, or who arc not privilcged.'^O) The only persons excepted from this rule, are, insolvents who produce their certificates, members of the Legislature and their officers, fe- males, and ambassadors of a foreign state and their servants. If a constable should arrest, either on a capias or execution, any of these persons, he would render himself liable to an action But other persons who are privileged from arrest, may be taken into custody and brought before the justice, who must immediately dis- charge them from custody, if satisfied that they are privileged from arrest; or the constable may, if he please, allow such persons their privilege, and decline to arrest, and return the fact on his writ, that they are privileged from arrest; but if it should turn out that the officer was mistaken, the plaintiff mny sue him for a false return. When the true name of the defendant and the one in the writ are different, or the two do not sound alike, the constable should, before he makes the arrest, see that the name in the execution and judgment are alike; for if the mistake is in the execution alone, the constable will render himself liable to an action, by arresting the defendant. But if the defendant is misnamed in the judgment and execution, the constable 7?tusl arrest the defendant: it is too late for the defendant to object to the misnomer, after trial and judg- ment.^ The constable must take the defendant to the jail of the county, and commit him to the custody of the jailor, leaving with the latter a certified copy of the writ'' and return. If the sheriff is not at the jail, nor any keeper or other person to receive and confine prisoners, the constable, after waiting a rea- sonable time, has done his duty; and if the defendant then goes at large, the sherifi". and not the constable, will be liable for the escape. 5 An arrest on an execution is a discharge and satisfaction of the ! (c) 6 Co. Rep. 64; Doug. 677. 652. (e) Stat. 513, $74. (d) Stra. 1218. Sec Prt. 1, Cli. vii. $1. (e) 5 Mass. Rep. 310. (.3) See, in rclalloii to arrest on :i capias, j). 34. (3) A justice, liowcver, who issues a capias or execution for the body, aj^-ainst a i)erbon wlioui lie knows to be privileged, n>ay be liable to uii action lor so doing-. IG8 EXECUTION FOR GOODS AND BODi'. [Pl^t. 1- C/l. 24. debt.'* No execution can afterwards be issued on the judgment, and if the plaintiff discharges the defendant from custody, he cannot be retaken: the judgment is satisfied, and the defendant cannot be again sued for the same debt, except upon a new promise or under- taking to pay it. When, iiowever, the defendant is discharged b}^ his own act, (as by obtaining a certificate under the insolvent laws,' or by escaping from custody,) the judgment will remain unsatisfied and ojierative. So, if the defendant obtains the ])rivilege of the prison bounds, execution may issue at any time afterwards against his goods and chattels.'' When the i)laintiff consents to discharo-e one of several defend- • • • 1 ants, taken on a jomt execution, he cannot afterwards retake him, or take any of the others: the judgment is satisfied.' But if one of them be discharged by his own act, as above mentioned, this will not discharge the others.™ A person cannot give bond and have the liberty of the prison until he is actually imprisoned within the four walls of the jail." The constable would, therefore, be liiible for an escape, if he re- leased the body of the dci'endant upon his giving such bond: the defendant can only be released after he is in jail. A defendant, however, in custody, either on a capias or on an execution, in a civil case, must, if he request it, be taken by the constable before the commissioner of insolvents. If the commissioner give the defend- ant a certificate for his discharge, the constable must discharge the defendant from custody, and return with the writ a copy of the cer- tificate.** A return that the defendant is sick and cannot be removed with- out danger to his life, and that he continued so at the return of the writ, is a good return.!' So, it is probabk' that a return that the de- fendant was rescued out of the custody of the officer,i or that the de- fendant overpowered the officer and rescued himself, will, when tme, be a good return,(4) and exonerate the officer from all liability. FORMS or RETURNS. (5) "When neither goods nor body can be found. The within named C D hath not any goods or chattels (h) It seems that even a court of equity will (q) In England, an officer, on mesne process, not lend assistance. 13 Ves. jun. 193. may call the power of the country to his aid to (i) 5 East. 147. prevent a rescue; and on an execution lie shall (k) Stat. 486, $39- rail the power of the country to prevent a (1) 6 T. R. 525; 2 East. 243; 4 Eng. C. L. Rep. rescue — hence, if a defendant is rescued from 418; 7 T. R. 420. custody on mesne process, tlie officer is excus- (m) 5 East. 147. cd; but it is otherwise on final process. Cro. (n) 2 Ohio Rep. 284. Jac. 419; 1 Stra. 432; Cro. Eliz. 781; Dy. 24, (o) Stat. 441, $0; 445, $22- (a). We have no statute like that of West. 2, (p) 6 Eng. C. L. Rep. 425. which compels the officer to raise the posse comitatus. (4) Rescuers are liable to answer in daniag'es lo Uie plaintiff f&t all the conse- quences of their acts. Cro. Jac. 241; Cro. Car. 109. They may also be pun- ished by fine and iMi|)risonnicnt. (5) For the forms of returns when property is taken instead of the body, see page 158. §2.] EXECUTION FOR GOODS AND BODY. 169 whereof I can make any part of the amount of this execution; nor is he to be found in my baihwick. I J , Constable. When the defendant is taken. June 1, 1846. The within named C D hath not suffi- cient goods and chattels whereof to make the amount of this exe- cution, and for want thereof, I took his body and committed the same to the custody of the keeper of the jail of county, with whom I left a certified copy of this writ and return. 1 J , Constable. Fees, , JVheJi the defendant is discharged by the Commissioner of Insolvents. June 1, 1846. The within named C D hath not suffi- cient goods and chattels whereof to make the amount of this exe- cution, and for want thereof, I took his body; thereupon, at his re- quest, I took him before the commissioner of insolvents of county, and the said C D then produced to me the certifi- cate of said commissioner, of which the following is a copy. [Here copy the certificate of the commissioner. '\ Whereupon, I discharged said C D from custody. I J , Constable. Fees, When the defendant is sick. The within named C D hath not sufficient goods or chattels whereof to make the amount of this execution, and for want thereof, [June 1, 1846.) I proceeded to the place of abode of the within named C D , where he then was, to arrest him, and then there found him so weak and sick, and he still remains so weak and sick, that without great peril and danger of his life, I cannot have his body before the within named G H , j. p. as commanded. I J , Constable. When the defendant is privileged from arrest. The within named C D hath not any goods or chattels whereof I can make any part of the amount of this execution; and I certify that the within named C D , at the time of the delivery of this writ to me, and from thence continually hitherto, hath been, and still is, a messenger of the General Assembly of the State of Ohio, and during all that time the said General Assenjbly hath been in session, and the said C D serving as said mes- senger: Therefore, I cannot liave the body of the said C D before the within named G H , j. p. as I am commanded. I J , Constable. 22 170 EXECUTION FOR GOODS AND BODY. [Pft. 1, C/l. 24, Sec. III. RIGHTS AND LIABILITIES OF THE CONSTABLE AND PARTIES AVIIEN THE DEFENDANT ESCAPES. Escapes are of two kinds: voluntary^ when the defendant, after the arrest, goes at large by the consent of the officer; and negli- gent^ when the defendant, after the arrest, escapes without the con- sent of tlie olficer. What will be here said, relates to an escape when a person is taken into custody on an execution.(6) Of voluntary escapes. If the officer allows the defendant to go at large, even for the shortest time, without the consent of the plaintiff, it is a voluntary escape. The officer, in such case, will be liable to the })laintiff, and retaking the defendant will not change the right of the plaintill" to sue for the escape.^ After a voluntary escape, the officer cannot retake or detain the defendant, but will be liable, if he do so, to an action for false im- ])risonrnent.'" When the defendant escapes without the consent of the plaintiff, he may have the defendant or his property taken on a fresh execution.^ If the defendant voluntarily return, and the offi- cer detain the defendant by the direction of tJie plaintiffs this would excuse the officer; but a voluntary return and detention by the offi- cer, without the consent of the plaintiff, will not.' In general, when there is a voluntary escape, the officer is liable to the plaintiff for the whole amount of the judgment. The officer has no right to judge of the propriety of imprisoning persons committed to his charge on execution, or to permit debtors to go at large, under the supposition that no good would result from their imprisonment. In general, therefore, when there is a volun- tary escape, proof by the officer, of the total inability of the delator to pay the judgment, cannot be received to reduce the damages in the action for the escape.'^ It is, however, a good defence to the action, that the defendant was privileged from arrest.^"" So, it would be a good defence, that tlie plaintiff consented to the release of the debtor from custody; but when the judgment is in a suit brought for a fine or penalty, part only of which goes to the plain- tiff, he has no authority to consent to the discharge of the defendant from arrest. When a constable has been compelled to pay the judgment, on account of a voluntary escape, he has no remedy against the defen- dant,* even if the defendant promised or entered into bond to in- (q) 2 Johns. Ca. 3. (t) 1 Wend. Rnp. 398; 15 Johns. Rep. 256. (r) 5 T. R. 25; 15 Johns. Rep. 256. (v) 6 Oliio Rep. 13. (s) 8 Johns. Rep. 361; 1 Salk. 272; 5 Wend. (w) 1 1 Jolins. Rep. 474. 240; Cro. Car. 255; Cro. Eliz. 555. (a) 11 Mass. 11; Peak's N. P. 144, n. (a). (6) As to an escape on a cipias, sec pages 36, 37. §3.] EXECUTION FOR GOODS AND BODY, ITl demnify him therefor.'' A contract to indemnify an officer for an illegal act, is void.*" But a bond to save a man harmless from the payment of all damages on account of an unlawful act already done by him, is not void,'^ unless such bond formed a part of the induce- ment to do the vmlawful act. If the plaintiff give the defendant, who is in custody on an exe- cution, leave to go at large, the judgment will be thereby discharg- ed, and the plaintiff can neither issue a new execution nor maintain an action for the escape, against the officer.(7) He must seek his remedy upon the new contract, if any, which he has entered into with the defendant. Of a negligent escape.{S) In case of a negligent escape from execution, the officer may, on fresh pursuit,(9) retake the defendant, and if so retaken by fresh pursuit, or if the defendant voluntarily return into custody before an action has been commenced against the officer, it will be a good defence, if pleaded to the action for the escape.'' But if, before the defendant has been retaken, the plaintiff shall have commenced his action against the officer, the latter will be still liable'^ to the plain- tiff for nominal (one cent) damages. The damages which may be recovered against the officer for a (b) Com. on Con. 57; Yelv. 197. (d) 2 Johns. Ca. 205. (c) 14 Johns. Eep. 381; Caine's Rep. 460; Holt. 223. (e) Cro. Jac. 657; 3 Co. 52; Stra. 873. (7) 2 East, 243; 7 T. R. 420; 11 Jotins. Rep. 476. The consent or agreement of the pUiintifFto an escape, after it shall have happened, without consideration, will not discharge the officer; but it is otherwise when the agreement is upon a good consideration. 7 Cowen's Rep. 274. (8) The return upon a capias ad respondendum, of a rescue, entirely exoner- ates the officer from all liability. See page 36. Whether such a return upon an execution will exonerate him, I cannot with certainly advise. But it clearly would not if the officer were guilty of the slightest neglect or want of exertion to prevent an escape. The form of a return of rescue upon an execution will, however, be here given, and the constable can readily alter it according to the facts, so as to apply to a case of rescue upon a capias. The within named C D hath not sufficient goods and chattels whereof I can make the amount of this execution, and for want thereof, by virtue of this writ, on the day of , 18 — , at the township of , in the county of ■ , and within my bailiwick, I took and arrested the said C D , and safely kept him in my custody to commit to the jail of the said county; and while I was, on the day and year, and at the place aforesaid, (brlhwith after said arrest, proceeding to commit the said C 1) to said jail, .1 K , and divers other persons to me unknown, widi force and arms assaulted me, and then and there the said C D out of my custody rescued, and tiie said C T) then and thei'e with force and ai-ms rescued himself and escaped nut of my custody; and afterwards the said C 1) is not to be found in my bailiwick. 1 J , Constable. (9) Fresh, pursuit means pursuit made a'? soon as tlie officer has notice of the escape. As to rescuers, and the liability of the ollicer liierefor, sec page 168. *72 EXECUTION FOR GOODS AND BODT. [Prt. 1, Ck. 24, §3.] negligent escape, depend upon the circumstances of each particu- lar case. In general, the phvintill'is entitled to recover the amount of the execution. If the olliccr c;ni show that the plaintitf has not sustained damages to that amount, the judgment against him will be reduced accordingly. Proof of the total inability of the judg- ment debtor to pay, would, of course, lessen the damages.^ The judgment debtor is liable to the officer for whatever dam- ages the latter may sustain in consequence of the escape.^ (g) 6 Oliio Rep. 13. (^h) H Mass. Rep. U. CHAPTER XXV. OF TRIAL OF THE RIGHT OF PROPERTY TAKEN ON EXECUTION. A constable is placed in an awkward situation, under the rule of law, that if goods and chattels of the defendant are pointed out to him, and he does not levy upon them, he will be liable to the plain- tiff for a false return; and if the goods and chattels thus pointed out are not the property of the defendant, and the constable levies upon them, the owner may sue him as a trespasser: the officer, in either event, acts at his peril. The summary mode of proceeding under the statute to try the right of a claimant to goods taken on execution, has been adopted merely for the purpose of so far settling the question between the claimant and constable that the latter will not render himself liable afterwards to an action of trespass, for seizing and selling the pro- perty.'^ The claimant, if he chooses, may resort to his action of trespass in the first instance, instead of preferring his claim under the sta- tute. If the claimant proceed under the statute, he must give three days' notice, (1) in writing, to the plaintiff' or his agent, of the time and place of the trial of his right to the property. If neither the plaintiff nor his agent be in the county, the notice may be served by leaving a copy at the usual place of abode of the plaintiff; but if the plaintiff have no place of abode within the county, and nei- their he nor his agent be therein, then no notice will be necessary.'' (a) 8 Ohio Rep. 370. Stat. 523, 596. (1) Form of notice: — A B ) vs. V On execution issued by G II*. C D . 3 The said A 1? will take notice that I claim the following" property, whicii has been levied upon, in the above case, as the property of C 1) , to wit: [here describe the properly claimed.] A trial will be had of my rig-ht to said property, on the day of' , in the year , at o'clock, P. M., \or A. M. OH the case may be,] before G H , a justice of the peace of township, county, ut liis office therein. ^Signed,] E r . Dated, , 18—. 174 EXECUTION CLAIMANT. [Pft. 1, The trial must take place one day before the time advertised for the sale, and conse(iucntly the claim must be made, by notice of the trial served on the plaintilf or his agent, at least four days before the day of sale. Thus, if the 5tii of May has been fixed upon as the day of sale, the notice may be served on the 1st of May for a trial on the 4th. The statute further provides, that, "if on the trial the justice shall be satisfied, from the proof, that the property, or any part thereof, belongs to the claimant or claimants, he shall render judg- ment and issue execution against the party in whose favor such ex- ecution issued, for the costs, and moreover give a written order to the constable who levied on or may be charged with the duty of selling such property, directing him to restore the same, or so mucii thereof as may have been found to belong to such claimant or claimants,"''(2) But if the claimant or claimants fail to establish his or their right to such property or to any part thereof, the justice shall render judgment against such claimant or claimants for the costs that have accrued on account of such trial, and issue execution therefor; and the constable shall not be liable to the claimant or claimants, for the property so taken.'^ Neither J;he claimant nor plaintiff to the judgment can be a wit- ness on the trial of the right of property. The judgment debtor is interested in retaining the levy, which is a satisfaction of the judg- ment to the value of the property, and hence it is believed, the plaintiff to the judgment cannot call him as a witness if the claim- ant object,^ though the claimant may call him even if the plaintiff to the judgment object, for his interest is against the claimant. In many cases, however, and especially where there is any indication of fraud between the claimant and debtor, little or no confidence could be placed in the testimony of the latter. The rights of the claimant are so far changed by the decision of the justice, that the constable cannot be sued for pursuing the course pointed out for him by that decision. But when the claim- ant is, in fact, the owner of the goods, and the justice decides against him, he will have the same right to sue the purchaser on the execution, or other person who has possession of the goods, after demand made, as if no trial had taken place. An appeal is not, therefore, allowed from the decision of the justice. (b) Stat. 623, $97. (d) See 2 N. R. 331; 4 Taunt. 20, per Law- (c) Id. 524, $98. RENCE, J. (2) Form of an order for the restoration of property to a claimant. A B , -^ vs. V On Execul'ion. To I J , Constable of Township. You are hereby ordered to restore to E F {here name the articles to he delivered up, 1 taken by you on execution in the above case; he being- the owner, and the same having- been, on trial, adjiulg-ed to him by me. G H , J. p. of Township. June 1, 1846. Ch 25.] EXECUTION CLAIMANT. 175 When the property is found by the justice to be in the claimant, the constable may, and in many cases he ought, if the plaintiti' will indemnify him for so doing, (but not otherwise,) disregard the order of the justice in relation to the right of the claimant, and proceed to sell the property, as in other cases.^(3) If the constable sell, he will be liable to the suit of the claimant, and in that suit the constable may contest the ownership of the goods, notwithstanding the judgment and order of the justice. FORM OF DOCKET ENTRY ON TRIAL OF THE RIGHT OF PROPERTY. K L , {claimant^ ^ vs. > B , (the judgment cr editor. y Claim by plaintiff of right of property levied upon by execution in favor of said A B against C D , and in the hands of I J , constable, advertised to be sold on the day of , 18 — . June 5, 1850, 2 o'clock.^ P. M. The parties appeared; the said K L , the claimant, produced the notice which is as fol- lows: [Jieix copy the notice.^ I do find that said notice was duly served on said A B , on the day of , 1 8 — . (e) See 8 Cow. Rep. 65. 12 Eng. C. L. Rep. 347. (3) Form of a bond to indemnify the constable for selling goods: Know all men by these presents. That we, A B , and J F , are held and firmly bound unto I J , in the sum of five hundred dollars; for the payment of which we hereby jointly and severally bind ourselves. Sealed with our seals, and dated this d:iy of , A. D. 18 — . Whereas, the above named I J , as constable of township, in county, by virtue of an execution in his hands, issued in the suit of A B against C D , by G H , a justice of the peace in and for said township and county, on the day of , in the year 18 — , to make of the goods and chattels of C D the sum of [here state the amount of the judgment and costs,] hath seized divers goods and chattels as the property of the said C D , which are claimed by K L , who procured sucli pro- ceedings to be duly had under the statute relating to the trial of the right of pro- perty taken on execution, tliat said I J was by said G H , as said justice, duly ordered to restore said goods to said K L — • — : and whereas, said A B , notwithstanding the premises, has requested said I J to proceed and sell said goods and cliattels under said execution, as the property of said C D , wliich said I J has agreed to do upon being in- demnified: Now, the condition of tiie above obligation is such, that if said A B and J F shall save harmless and keep indemnified the said I J from all losses, costs, attorney and counsel fees, damages and expenses which he may sustain, pay or be but unto, for seizing or selling said goods and chattels, or paying the said A B t!ie money arising from their sale, or for any otiier act or matter relating thereto, or to the execution of said writ, then the above ob- ligation to be void; otherwise to remain in full force. A B , (Seal.) J y , (Seal.) 176 EXECUTION CLAIMANT, [Pr^ 1 , C//. 25.] Thereupon trial was had, [and I do find that the following proper- ty, in said notice referred to, belongs to said claimant, to wit: One coiv^ SfC. It is therefore considered by me, that said claimant reco- ver of said A B the costs herein, taxed at dollars cents. Order issued and delivered to said constable for the restoration of said property last mentioned.] If no part of the pro- perty be found in the cJainiftnt^ then in place of the mattrr in brackets^ beginning at '•'■and I do Jind^ (e) Btnt. 328, $iO. (c) 2 Ohio Rep. 90; 2 H. ^^ M. 38. (i?) 4 Mbsb. 455. 188 ACCOUNT BOOK. [P/7. 2, scribed, may be admitted in evidence with the testimony of the party. As, wiiere the plaintiM" was a hhicksmith, and kept a shitc in liis shop on which he .set down all his charges as they accrued, and was in tiie habit of transcribing the entries from the slate into a book, and after that was done, to rub out the charges on the slate and begin anew; it was decided by the court that the book might be considered as original, though transcribed from a slate: the slate containing merely memoranda, and not being intended to be per- manent.^ It will sometimes be necessary for the justice to determine Avhc- ther the original account book be such an one as will justify the admission of the evidence of the party as to its validity. It is by no means necessary that it should be a bound book, or that it should be kept like a merchant's. It should, however, appear, as has al- ready been stated, to contain the daily minutes of the transactions of the party. The charges should be made in ?uch a manner tiiat a third person, without the explanation of the party himself, could ascertain from the book the indebtedneps and the names of the per- sons charged. A stick, therefore, upon which notches are made of the num]:)or of d-iys that one party h.as worked for another, would not be an account book. If the account book contain'sz^ws whicli do not shov/ to a stran- ger, an indebtedness and the names of the persons charged, the oath of the part}^ cannot be received to explain or to establish the valid- ity of his account, however clearly it may have been drawn out for or by him, for the purposes of tlie suit. So, a merchant's book of blank checks, with a marginal memorandum of checks issued, is not an'account bool-i v.'hicli the party mn.y be sworn to.** If a person makes charges for things which are not properly the subject of book account, he will not be permitted to sustain them by his own. oath. Money, especially if of any considerable amount, is not the proper subject of book account, and cannot, in general, be proved by the oath of the party; still, if in the course of business, small sums arc passing between the parties, these may, with pro- priety, be charged, and may be proved as other iteuis. An individ- ual, however, might be engaged in a business that would seem to jus- tify such charges and his testimony founded thereon.''- An account, purporting to be drawn oft" by the party himself from his original or daily minutes, is admissible in evidence, and his testimony may be received, if the original book has been burnt or destroyed by accident, and there be proof that the items of the ac- count actually existed in the party's book.*^ If any of the items of the account were entered in ihe account book by a clerk or other third person, such items must bo proved by the person who made the entries, and the testimony of the party himself in relation to such items cannot be received.*^ If the clerk be dead, then the items charged by him may be received, upon proof pf his decease and hand writing. (a) 13 Mas3. 427; 12 Pick. Rep. 139. (d) 2 Mass. Rep. 569. (b) Wright's Rep. 219. (e) 3 Tick. 380; 15 Mas.». 380. (p) 8 Ohio Rep. 496. T'Ule 2.] ACCOUNT BOOK. 189 The account book of a deceased person should be admitted in evidence for the consideration of the magistrate, upon proof that the charges therein are in. the hand-writing of tlie decedent, that some of the articles charged have been delivered, and that he kept fair and honest accounts.* If the charges were made by a third person, he should be produced, or if dead, his decease and hand- writing proved. The executor or administrator, when a party to such suit, cannot, it is believed, if the other party object, be exam- ined as to the validity of the account. After the account is received in evidence, it does not follow of course, .that the justice must allow it. When it does not appear fair and honest, or if there be evidence which satisfies the justice that the party does not keep fair account books, and there is no other evidence to establish the account but the oath of the party, the justice ought to reject the account book and testimony of the pnvty. If the account appear to be of more than eighteen months' stand- ing, from the time the suit was commenced, the party cannot be permitted to testify in relation to it; but the delivery of the articles or the performance of the act charged, may be proved by other testimony. When, however, there is a running book account, a part of the items of which have arisen and been charged within eighteen months previously to the commencement of the suit, and part at an earlier period, the party making the account is a com- petent \vitness, as well to prove the validity of those items which are of more than eighteen months standing, as those of a subse- quent date. A book account is an entire thing, and the statute has reference, (in regard to the time in which it may be proved,) to the close of the account.'' It does not follow, from what has been said, that the account book itself shall be rejected as evidence, whei'e the testimony of the par- ty himself ^^^ll bo excluded in consequence of all the items being of more than eighteen months*^ standing. On the contrary, it seems to have been decided by the supreme court, on the circuit,^ that in sucii case the account book itself may be received in evidence, af- ter a foundation is laid for its admission, by proving that the party had no clerk, that some of the articles charged had been delivered, that the book produced is the original account book of the party, and that he keeps fair and honest accounts; and this by disinteres- ted witnesses, wlio have dealt and settled with him.^ If, in such caRC, the opposite party desire the creditor to be sworn as to the validity of his account, and he refuse, the justice ought not, per- haps, to receive the account book in evidence; at all events it would be a very suspicious circumstance. If the items charged are such as generally constitute the subject of book account, tiio fjuantity, quality, and delivery of the articles, if goods or cliaticls, or the services performed, if labor, may be proved by the oath of the party claiming by virtue of the book ac- (a) Wright's Rop. 168. 452. 12 Johns. Rep. (c>i Wriphfa Rep. IGft. 461. 3 Pick. Rep. 9fi. fd) 12 Johns. Rep. C21. VViiglu's Rep. 452, (l>) 5 Ohio Rep. 33(1. 190 ACCOUNT BOOK. {P ft. 2, Tilk 2.'\ count. But lie cannot be pennittcd to testify as to tlie value of the articles ciuu-iied, or as to the value of the labor performed; except when asked 1)\' the o])posite j)arty on cross-examination, as to their value.'' When a party is examined as a witness, in relation to his ac- count, lie cannot l)e compelled by the o))posite ))arty to testify as to other matters entirely foreiizn from the account book, and the items therein charged: lie must testify, if the opposite party make the intjuiry, as to the time when the items were charged, how they arose, whether they have been paid, and must disclose every thing connected with the account and its validity. He cannot go farther than this, and prove facts out of or foreign to his account, unless the o]>posite party consent that such testimony should be received. Neither the book of the party, nor his testimony, can be received to ])rove the payment of cash or property to third persons by a written order; for better proof of such claim, if true, (the order it- self,) may be had;'' and, on the other hand, he cannot be permitted, at his own instance, to testify as to a contract made in relation to the items of the charge.' When the account book has marks which show that the items have been transferred to a leger, the leger must also be produced, that the other party may have the advantage of any items entered therein to his credit.*^ When there has been a settlement between the parties, it will be considered as correct until the contrary is proved. A settlement may be impeached and corrected, when there is proof of a mistake or omission m it, and if the settlement was confined to particular items of the account, it will, in general, be no evidence, whatever, that other items not stated in it were also settled.*^ If, upon a set- tlement, a receipt in full of all demands, be given, it must be pre- sumed that all demands then and theretofore existing were settled; but such a receipt will not preclude the party who gives it from showing a mistake in the settlement, and recovering what is still honestly due him.^ A release, however, under seal, of all demands, will, in general, eflectually shut out every claim existing at the time of its execution. The oath or affirmation of the party in relation to the validity of his account, may be in the form following: You do solemnly swear in the presence of Almighty God, the searcher of all hearts, [or, if tite party affirm^ sai/. You do solemnly and sincerely declare and affirm,] that the testimony you shall give in the cause now in hearing before me, touching the validity of your book account, shall be the truth, the w^hole truth, and nothing but the truth; and this you do as you will answer to God at the great day: [oi\ if the party ajjinn. say^ under the pains and penalties of perjury.] (a) 8 Ohio Hep. 496. (e) 11 Whea. Rep. 250; Wright's Rep. 206; 6 (b) 4 Mass. Rep. 455. Oh. Rep. 287; 4 Id. 334. (c) 8 Ohio Rep. 496. (g) Wright's Rep. 764. 240. (d) 2 Maw Rep. 569. TITLE III. ACKNOWLEDGMENT OF DEEDS. It is necessary to insert here only the forms of acknowledgments of deeds, mortgages, and other instruments of writing. The acknowledgment must be written on the instrument acknow- ledged. FORM OF THE ACKNOWLEDGMENT OF A DEED, &C., BY HUSBAND AND AVIFE. The State of Ohio, r- county, ss. Before me, G H , a justice of the peace in and for said county, personally appeared the within [o)- above] named J G , and M , his wife, and acknowledged the signing and sealing of the within [o/- above] conveyance [or power of attorney, or mortgage, or lease, or instrument,] to be their voluntary act ami deed; and the said M- being at the same time examined by me, separate and apart from her said husband, and the contents of said instrument made known to her by me, she then declared that she did voluntarily sign, seal,' and acknowledge the same, and that she is still satisfied therewith; this day of , A. D. 18 — . G H , J. p. FORM OF THE ACKNOWLEDGMENT OF A DEED BY A SINGLE PERSON. The State of Ohio, county, ss. Before me, G H , a justice of the peace in and for said county, personally appeared the within [or above] named J G , and acknowledged the signing and sealing of the within [or above] conveyance [or power of attorney, or mortgage, or lease, or instrument,] to be his voluntary act and deed; this day of , A. D. 18—. G II , J. p. FORM OF ACKNOAVLEDGMENT OF A DEED, &C., BY AN ATTORNEY. The state of Ohio, county, ss. Before me, G H , a justice of the peace in and for said county, appeared the within named [hcreinsertthenameof the prin- 1 9'2 APMINISTHATOHS AND EXECUTORS. [I*rt. 2, c/paL] by his nttornoy in fact within named J A , and ac- kn()\viod'u;od tlio siun'in^ and sealing of llio within conveyance [oj- instniiiient] to 1)0 liis voiuntarv act and deed; this day of , A. U 1 0—. e; II , J. r. TITLE IV. ADMINISTRATORS AND EXECUTORS. If, hy neglect, sickness, or other cause, any of the a.])j)raisers ap- ])ointed to appraise and make an inventory of the estate of a de- ceased jterson, fail to attend to the ])crf(>rmance of their duty, any iustice of the peace of the county in which the pro])erty to be ap- praised is situate, may appoint others to supply the ])lace of such delinquent appraisers.'' When appraisers are api)ointed by a jus- tice, he must issue his order to them, in substance as follows: The State of Ohio, county, ss. To A B and C D , of the township of , in said county: You are hereby appointed to appraise, on oath, the estate and effects of E F , late of , deceased, which may be in said count}'. When you have performed that ser\ice, you will de- liver this order, and your doings in pursuance thereof, to L M , executor [or administrator, as the case may he^ of said de- ceased, that he may copy and return the same to the court of com- mon ]ileas of county. Given under my hand, this day of , 18 — . G II , J. P. For issuing the order and appointing the appraisers, the justice is entitled to a fee of twenty-five cents. Besides the proper vouchers to establish a claim against the estate, the administrator or executor may also require, in all cases, the affidavit of the claimant, in the following form: The State of Ohio, county, ss. Before me, G H , a justice of the peace in and for said county, personally appeared C D , above named, who made solemn oath that there is justly due on the above claim, the sum of (a) Stat. 345, $34. Title 4,] ADMINISTRATORS AND EXECUTORS. 193 dollars, — cents, that no payments have been made thereon, and that there are no off-sets against the same, to his knowledge. {Sig7ied'\ C D . Sworn to and subscribed before me, this day of , A. D. 18—. G H , J. p. as above mentioned. Notwithstanding the claim be sworn to, if the administrator or executor doubt its justice, it may be referred to arbitration, in the mode directed by the statute.* If a claim is founded on an account, and the creditor has no ac- count book, and the executor or administrator has any reason to doubt its justice, the claim should be rejected, unless the account is authenticated by the oath of some disinterested person; and in ad- dition to this, the administrator ought to require the oath of the creditor himself, that there are no credits, payments, nor set off, against the claim, and that the amount is honestly due him. There is no other safe practical rule. If the creditor has an account book, and the last item of the charges against the decedent is of more than eighteen months' standing from the time of the death of the decedent, the adminis- trator, if he thinks the creditor does not keep fair books, ought to reject the account, notwithstanding the affidavit of the creditor. But if the creditor will show his books, and the administrator, from an inspection of theip, or otherwise, is satisfied that they are fairly and honestly kept, it would be proper for the administrator to allow the account, on the affidavit of the creditor, in the form given above. When an account is rejected, the creditor must authenticate it by the recovery of a judgment against the administrator or ex- ecutor. The directions here given may, sometimes, in their rigid practical application, operate harshly and unjustly. But if not followed, eve- ry man of easy conscience may, with impunity, plunder estates. That rule is a bad one which will practically sanction /"rawf/ in some cases, in order to do justice in others. The Statute also points out the time and circumstances, under which suits may be maintnined, and when they are barred, as against executors and administrators. (1) The statute also points out the circumstances under which exe- cutions may issue upon judgments against executors and administra- tors, and against whom costs of suits, on claims against the estate, are to be taxed, &c.(2) (a) See Stat. 353, 354. (1) As to :i solvent estate, see Stat. 354 to 360; as to an insolvent estate, see Stat. 377 to 381. (2) ,\s to judgments, costs, and executions, sec Stat. 355, 35C. 377, 378. 380. 2.5 194 ADMINISTRATORS AND EXECUTORS. [Pr/. 2, Tif/c 4.] Executors and administrators appointed in sister states and terri- tories, can sue here. They may, however, be recjuired to give se- curity for costs, as otlicr non-residents. Executors and administrators may appeal without entering into the usual recognizance of appeal.* And this may be done, indeed, as well by administrators and executors of this State, as by foreign administrators and executors, who have executed anoflit-ial l)ond in this State for the faithful discharge of their duties.'' But if a foreign administrator or executor has not executed such official bond, he must enter into a recognizance for an appeal.'' When an administrator or executor appeals, without giving bond, he must make known his intention to do so within ten days after the rendition of judgment, and the justice should make a memoran- dum thereof on his docket. It may be in the form following: June 1, 1846. The plaintiff [or defendant] came and gave notice that he appealed this cause to the court of common pleas. An executor or administrator is not liable, upon an agreement, to answer for a debt of the decedent out of his own estate, except when such agreement is in writing, and signed by him, or some other person thereunto by him lawfully authorized.* (a) Stat. 384, $243. (b) Wright's nep. C31. 697. (c) atat. 423, $5. TITLE V. APPRENTICES. In order to protect infants from imposition, a statute has been enacted regulating the terms of apprenticeship and the covenants between apprentices and their masters.^ The subject will be examined in the following order: SECTION I. WHO MAT BE BOUND OUT TO SERVICE, AND FOR WHAT TIME, ir. WHO MAY BIND OUT INFANTS. III. WHAT STATEMENTS AND COVENANTS AN INDENTURE OF AP- PREXTICESHIP MUST CONTAIN AND HOV,' EXECUTED. IV. WHEN THE INDENTURE MUST BE RECORDED, AND THE EFFECT OF NOT RECORDING. V. OF THE DISSOLUTION OF THE APPRENTICESHIP. VI. OF THE RIGHTS OF THE APPRENTICE. VII. OF THE RIGHTS OF THE MASTER. VIII. OF ENTICING AWAY, EMPLOYING, OR HARBORING AN APPREN- TICE, &C. Sec. I. WHO MAY BE BOUND OUT TO SERVICE, AND FOR WHAT TIME. Any male person within the age of twenty-one, or female person within the age of eighteen years may be bound until they arrive at those ages respectively, or for any shorter period, to serve as a clerk, apprentice, or servant.** Sec. II. WHO MAY BIND OUT INFANTS. The father, or in case of his death or inability, the mother, or the guardian of infants, may bind them out. So the trustees of town- ships may bind out any orphan destitute child, or the child of any person who will not provide for such child. "^ The authority of the guardian of a female, under twelve years, ceases when tiie female arrives at the age of twelve; and the autho- rity of the guardian of a male, under the age of fourteen, ceases when the boy arrives at the age of fourteen. Sucli guardians can- (a) Hint. 63. (I.) Id. 63, ?.1. (c) M. 63, $2 and 3. 196 APPRENTICES. * [Pft. 2, Title^ 5. not bind out their wards beyond tlie period of their guardianship, unless the court of common pleas of tlie county approve of the terms of the indenture.^ Sec, III. WHAT STATEMENTS AND COVENANTS AN INDENTURE OF AP- PRENTICESHIP MUST CONTAIN, AND HOW EXECUTED. No agreement whatever will constitute an apprenticeship, unless there are indentures executed. The indenture must, in all cases, contain a statement of the age and term of service of the minor. When, however, the age is not known it must be inserted according to the best information; and the age so inserted must be deemed and taken, in relation to the term of service, as the true age of the minor, and in general, can- not afterwards be disputed. ** When a female is bound to serve for four years or more, the in- denture must contain a covenant on the part of the master or mis- tress, to teach the child to read and write, and the first four rules of arithmetic; and in case of a male, bound to serve for five years or more, to read and write, and so much arithmetic as will include the single rule of three, if such minor can, by law, be received into and educated in a common school ; and in all cases the indenture must contain a covenant, that at the expiration of the term of ser- vice, the master or mistress will furnish the apprentice with a new Bible, and at least two suits of common wearing apparel. All money and other property stipulated to be paid by the master or mistress, must be secured to, and for the sole use of the minor.*^ The indenture must be signed and sealed by the father, or in case of his death or inability, by the mother or guardian, or in case of an orphan or destitute child, by the trustees of the township, and also by the master or mistress;'* but the parent, guardian or trustees are not liable on the covenants contained in the indenture, unless there is an express stipulation therein, that they agree to be made individually liable.* When a female is bound to service for a less term than four years, or a male for a loss term than five years, the covenants in relation to the education of the minor may be such as the par- ties can agree upon. So, where the guardian of a female under twelve, or of a male under fourteen years of age binds out the ward, the indenture will be valid if approved by the court of common pleas of the county, whatever may be the covenants contained in it,Hi) ('a) Stat. 432, $7. (d) Stat. 64, 5:3, (b) Id. 64, $4. (e) Id. 66. $16. (c) Id. 64, $5. (g) Id. 432, $7. (1) See the preceding secUoa. §3, 4, 5, 6.] APPRENTICES. 1 97 Sec. IV, WHEN THE INDENTURE MUST BE RECORDED, AND THE EFFECT OF NOT RECORDING IT. If the master or mistress neglect to have the indenture recorded within three months from the time of its execution, by the clerk of the township or the recorder of the incorporated town or city where the master or mistress resides, the apprentice must be dis- charged from service, and the master or mistress will be liable for the payment of all property stipulated to be paid by the indenture.* Recording the indenture after the expiration of three months, will not make the indentures binding upon the apprentice.(l) Sec V. OF THE DISSOLUTION OF THE APPRENTICESHIP. An apprenticeship is a personal trust between the master and ser- vant, and ends at the death of either of them.^ The apprentice is not bound to serve the executor.*^ The apprenticeship may also end by the consent of all the parties to the indenture.* Sec VI. — OF the rights of the apprentice. From the nature of the relation betw^een the master and appren- tice, the former is bound to pay for medical attendance on the latter.® It is the duty of the parent, guardian, or trustees of a township, who bind out a child to service, to see that the apprentice is well used, and that the master complies with his agreement.^ The parent, guardian, or trustees, who bind out a child, may, in the name of such child, and as its next friend, make complaint be- fore any justice of the peace of the township where the master or (a) Stat. 64, $6. (d) 2 Petersd. Ab, 47; Burr. 766. 801; 1 T. R. 189. (b) 1 Salk. 66; Burr. 782. (e) 2 Kent's Com. 265, n. (prove of the arbitrators, and upon entering in his docket the names of the parties, a memorandum of the agreement of reference made by the parties, and a statement of the names of the arbitra- tors, and iiis approval of them, the arbitration proceeds in like man^ ner as if it were a cause pending before the justice, and submitted to arbitration.* The judgment, however, on the award, is entered against the assets, in the form heretofore given, (1) The statute directs when and how execution may be issued thereon. (2) It should, perhaps, ajipear from the docket, that all the arbitra- tors heard the parties, although only two decided the case.'' In general, arbitrators may award that the parties sliall do any act which they could agree to do, unless indeed it be that a party shall cause a third jierson to do an act which it does not appe^^he has a right to retjuire of him.*^ But, in arbitrations before aj^stice, it would seem necessary that the award should, in all cases, be such as could be carried into eflect by judgment and execution; and con- sequently it must be, either that the party has no good cause of ac- tion, or for the payment of money. It need not, perhaps, be here added, that a justice cannot render judgment nor issue execution to compel a party to do any thing but to pay money. Where, by the terms of the arbitration bonds, the award is to be made a rule of the court of a justice of the peace, this will not au- thorize a magistrate to render judgment on the award, as the statute in relation to an award being made a rule of courts of record, does not include a justice's court.'' (i>) IIoiv an award may be set aside. The judgment of the justice on the aw^ard, is final and conclusive between tlie parties, unless the award was procured by fraud, cor- ruption, or other undue means, in w-hich case the law permits the party who wishes to set it aside, to pursue either of the following modes. 1st. He may, within ten days after judgment is rendered on the award, but not after that time, appear before the justice and show by proof, that the award was procured by frnud and corruption, or other undue means. Notice should be given to the adverse party, so that he mny be present, and prepared to rebut, the evidence. Neither of the parties can be examined as witnesses, except by con- sent. Proof by a witness, that he verily believes, or is of opinion that the award was procured by fraud, corruption, or other undue means, will not be evidence. Facts must be shown, which prove beyond a reasonable doubt that there has been gross misbehavior on the part of the arbitrators, or fraud, collusion, or other undue (a) Ptat. 353, 35-1, 586, 87, and (b) G Mass. Rep. 496. (d) Wright's Rep. 06. 379, 3S0, 5218, 220. (c) 13 Johns. Rep. 264. (1) See arUe p. 121. (2) See Stat. 354, 355, 356. §1,(A),(B),2,(A).] ARBITRATIONS. 205 means, used in procuring the award. The mere circumstance, that in the opinion of the justice, the award is too large or too small, or that the arbitrators did not give proper weight to some of the testi- mony, will not justify him in setting aside the award. If the justice is satisfied, from the facts proved, that the award was obtained by fraud, corruption, or other undue means, it is his duty to set it aside, and then try the cause and render judgment as in other cases. ^ Ei- ther party may appeal from this judgment. 2d. The party wishing to set aside the award, instead of trying the question before the justice, whether the award was obtained by fraud, &c., may file an affidavit, setting forth in general terms, that the award was obtained, as he verily believes, by fraud, corruption, or other undue means; and thereupon enter into recognizance for the appeal of the cause to the court of common pleas.''(l) The afMavit should be filed, and recognizance for an appeal en- tered, within ten days after the judgment was rendered. An ap- peal cannot be taken until the affidavit is filed.*^ If the court of common pleas -are satisfied that the award was obtained by fraud, corruption, or other undue means, they will set it aside, and hear and determine the cause on the merits, as in other cases of appeal ;" but if they find the award was not so obtained, they will render judgment thereon, and for the costs of suit, ^and issue execution as in other cases.** The powers and duties of the justice over a cause after it is ap- pealed, have been already stated. (2) ►Sfx. II. THE FORCE AND EFFECT OF AN AWARD AS AN INSTRUMENT OF evidence; and herein. {A) General recpii.sites of an award^ to render it valid. In order to know whether an award is evidence of the settle- ment of a controversy, or can be enforced, it is necessary to as- (a) Stat. 512, $34, 35. (c) Id. ib. $37. (b) Id. ib. $36. (d) Id. ib. $38. (1) Form of ;in affidavit to procure an appe.il. vs. ^ Judgment on award, upon tlic docket of G — IT — , j. p. Tlie State of Ohio, county, ss. Tlie said , party to said suit, makes oalli, and says, that tlie award in tlie above cause was, as he verily believes, obtained by fraud and other undue means. Sworn to and subscribed before me, this day of , 18 — . G H , r. p. (2) See page 12.5. 20G ARBITRATIONS. [Prt. 2, Title 6, certain in the first place what kind of award is good and valid in law. The provisions of the statute* in relation to arbitration are only applicable to cases where, by the agreement of the parties, the award is to be enforced by the court of common pleas, by attach- ment, if necessaiy,'' and consequently, parties may submit matters in controversy, either by bond or contract in writing, or even by verbal agreement;'^ and an award may likewise be either in writing or verbal; or when its form is specified by flie submission, accord- ing to the agreement of the parties. No precise form of words is necessary to constitute an award; all that is necessary is for the arbitrator to express by it a decision up- on the matter submitted to him.** (B) W/ioi an aicard is void. If an award is void, the agreement to perform it is also void,® and nothing in relation to it is binding upon any one. It is from the contract of submission that the arbitrators derive their authority, and by it they must be governed in their proceed- ings. A departure from its stipulations renders their award void for defect of power to act.^ So strict is the rule in this respect, that if the parties agree that the award shall be in writing, under the hands and seals of the arbitrators, an award under their hands, but not under their seals, is void.^ It is a general rule, that unless the arbitrator makes his award of all matters submitted to him, the award is entirely void; for the very object of the submission remains unperformed. When the submission is oi several specific things., if it appear from the face of the award, that the arbitrator has omitted to decide some one of the specific things, the award will be void.' When the submission is general, of all matters in dispute, or in difference, without specif}^- ing what they are, the arbitrator need only make his award of such things whereof he has notice; if there be other things in contro- versy, not included in the award, but of which the arbitrator had not notice, yet the award is good.'' But if a matter of difference, which comes within the scope of the submission, be notified to an arbitrator, and he should neglect to act upon it, without the consent of the parties, and award upon other matters, the award would be yoid.' So, when the award is made after the time,(l) or at a differ- (a) Slat. 67. (g) 3 Oliio Rep. 510; 6 Mass. Rop.46. (b) Wrislit's Rep. 37. 86. (Ii) H Jolins. Rep. 133. (c) 1 Salk. 75; 2 I'eicrsd. Ab. 109; 3 Oliio Rep. (i) 7 East's Uep. 81; 9 Ens. C. L. Rep. 382. 510; Wrislit's Rep. 37. (k) Cro. Eliz. 838; 15 East's Rep. 213. (d) 27 Eng. Com. Law Rep. 135- (1) 16 East's Rep. 58; Willes. 268; 7 Mod. 345. (e) Willes. 248. (1) In g'eneral, there is a pai-liciilar lime limited, within which an award must be made and published. If the arbitrators have "U7itil" a certain day, an award made on that day is good ; lor, in these cases, the word ''until" is construed to §2, (B).] ARBITRATIONS. 207 ent place from that agreed upon by the parties, or after the decease of one of the parties to the submission,* it will be void. The award itself must show that the arbitrators met at the time and place specified in the submission, or it will be void.*" If, how- ever, no time or place was agreed upon by the parties, then the ar- bitrators may meet when and where they please. Notice should be given, of the time and place of the meeting of the arbitrators, to the parties, if the time and place be unknown to them ; otherwise the award may be void' in chancery, but the ob- jection cannot be made in a suit on the award.^ After the agreement of submission, and at any time before the award is made, the powers of the arbitrators may be revoked by either party to the submission.® No particular form is necessary, to render the revocation effectual; but it must be according to the sub- mission; that is, under seal, if the submission was under seal; and^it may be by word of mouth, if the submission was by parol. ^ If the arbitrators, after the revocation, make an award, it will be void.(l) Where the award is so uncertain in its terms that a person unac- quainted with the situation of the parties, or the circumstances, can- not, from reading the award, ascertain what steps are to be taken to perform it, it will be void. Thus an award to pay for the stove^ without saying Vvhat stove, is void, for uncertainty.'' An award to give good and siifficient security^ without defining the nature of the security, has been held to be void.' When specific articles of pro- perty are to be delivered, they must, if possible, be so described, that when a delivery or an offer to deliver is made, it may be known whether the articles are the same that the arbitrators intended, or not. Therefore, an award, directing A to deliver up the books, papers, accounts, a small chest, and wearing apparel, in his posses- sion, belonging to B, is void, for uncertainty.'' But every thing is to be intended in favor of an award; and courts will intend an award to be certain, unless it appears uncertain. But an award may sometimes be good in part, and bad in part. When the part that is void is not so connected with the rest as to affect the justice of the case, the residue will be good and valid.' But when the whole is so connected together, that the part which is (a) 3 Doug. 406; 2 B. and Aid. 39J. (h) 2 Caine's, 235; 3 Cowen's Rep. 70. (b) 3 Ohio. Rep. 287. (i) 9 Jolins. Rep. 43. See 1 Taunt. 5.i4. (c) 4 Dall. 232; 6 Cowen's Rep. 103. (k) 3 Ohio Rep. 266. See 9 Eiig. C. L. Rep. 52. (d) 5 Wend. Rep. 516; 8 Pet. U. S. Rep. 165. (1) 2 Cowen's Rep. 638; 8 Mass. Rep. 398; 13 (e) 16 Johns. Rep. 285. Id. 244. (g) 8 Johns. Rep. 125. be inclusive. See 5 East's Rep. 244, where much learning' .ind law is collected in relation to "unlil," a word wliich is used in an inclusive or exclusive sense, accord- ing as tiie context and subject matter of the sentence will call lor eillicr meaning-. (1) The part)' revoking- tlie submission is liable to a suit on the bond or other a^eement of submission, in which the expenses, costs, and ciiarges of the opi)o- site parly, about preparing for the trial before tlie arbitrators, may be recovered. Bac. M. Arb. and Award, (B). 208 AKBiTRATOus. [Prt. 2, TilleG, void controls or aflocts lluit jtart \vliich is valid, the whole is void. So, when arbitrators transcend tiieir authority, their .-ivvard as to matters not submitted to ihem, will l)e void; but it" that which is void aflects not the merits of the submission, the residue will be valid.'' An award to settle a controversy in relation either to the pos- session of, or title to real estate, is void.** (C) T/tc effect of an award., vhen valid. Parties may agree to submit a specific subject of controversy to arbitration, and the award thereon, although final and conclusive between the parties, will leave all other subjects open for future quarrel and controversy. So they may refer all matters in dispute in a particular cause, and the reference will be confined solely to the matters in dispute in that trial.'^ On a submission to arbitration ^"-of all matters in dlfjhxnce^^'' ihe award is conclusive on the jTiirties as to all causes of action subsist- ing between them previously to the submission; but when it can be shown that the subject of a subsequent action was not a matter in difference at the time of the suljiuission, nor referred by the parties to the arbitrators, nor acted upon by them, the award will not bar the subsequent action.'' If parties submit to arbitration '•'■all demands which either has against the other," the award is a conclusive bar to an action for any demand subsisting at the time of the submission and award, even though the plaintitf show, in a subsequent action for such demand, that it was by mistake omitted to be laid before the arbitrators, and was not considered or decided upon by them.^(l) In general, where a defendant sets up that the cause of action is barred by a submission and award, the defence will be good if it appear that the cause of action came within the scope of the sub- (a) 1 Wenrt. Kep. 326; 7 Mass. Rep. 399. (J) 4 T. R. 146, and note: 4 Ksp. IfiO. (b) Slat. 07,^1. (e) 12 Johns. Kep. 311; 15 East 213; 17 Eng. (c) 2 T. R, 645. C. L. Rep. 498; 1 Esp. 377. (1) In tl>e case of IVhecler v. Van ILniteii, (\2 JoJais. liep. 311,) above refer- red to, tlie court say: "Wliatevcr constituted a demand on one side or the other, was submitted; and if submitted, tlie cases cited show that the award must be final. "It would be a very dang'erous precedent, to allow a part}', on a submission so general, 'of all demands which either party liad aj^-ainst the other,' intended to settle every thing- between tiiem, to lie by and submit only a part of iiis demand, and then institute a suit for the part not broug-lit before the arbitrators. Tlie object of the submission was to avoid liti.q-ution; and neither party is at liberty to withiiold a demand from the cognizance of the arbitrators, on such a submission, and then to sue for it. "It is true, if a person sues upon several distinct causes of action, and submits only a part of them to the juiy, he is not ])recluded from suing- ag-ain for such distinct cause of action as was not passed ujooii. In that case, lie was not bound, originally, to unite the ilifl'erent causes of action, and therefore shall not be bar- red; but here he bound himself to the defendant to submit every demand, and cannot recede from his agreement." §2,(C).] ARBITRATIONS. 209 mission, although not presented nor acted upon by the arbitrators.* When, however, such matter is in fact presented and submitted to the arbitrators upon which they do not act, by either allowing or rejecting it, and award only as to other matters, the award will, in general, be wholly inoperative and void,'' We have just seen in what cases an award is void. In an action upon an award or upon an arbitration bond, for not performing an award, the defendant can only avail himself, in his defence, of mat- ters which render the award void. He cannot, therefore, be per- mitted to go back of the award, and show that the arbitrators acted unjustly and refused to hear testimony, or that he had no notice of the hearing, and did not attend.' His only remedy is in a court of equity. These things might, to be sure, be set up, in order to get the reference and award made before a justice set aside, as men- tioned in the preceding section, but are not proper subjects of de- fence when suit is brought on an award or arbitration bond, whe- ther such award was made under a reference to arbitrators before a justice, or in any other lawful manner. (a) 15 East, 213; 17 Eng. C. L. Rep. 498; but (c) 5 Wend. Rep. 516, which overrules the see 5 Mass. Rep. 334; 9 id. 320. case in 6 Cow. Rep. 103; see also 8 Pet. (b) 16 East 58; 20 Eng. C. L. Rep. 483. U. S. Rep. 165. 27 TITLE Vll. ASSIGNMENT OF CLALAIS NOT NEGOTIABLE. SEC. I. WHAT CLAIMS ARE NOT NEGOTIABLE, AND THE MEANING OF THE TERM "CIIOSES IN ACTION." II. HOW CHOSES IN ACTION MAT BE ASSIGNED. III. OF THE RIGHTS OF AN ASSIGNEE OF A CHOSE IN ACTION AGAINST THE DEBTOR. IV. OF THE RIGHTS OF THE ASSIGNEE AGAINST THE ASSIGNOR. ■ V. OF THE RIGHT OF THE DEBTOR WHEN THE CLAIM AGAINST HIM HAS BEEN ASSIGNED. VI. OF THE LIABIUTY OF THE ASSIGNOR AND ASSIGNEE FOR COSTS. Sec. I. WHAT CLAIMS ARE NOT NEGOTIABLE, AND THE MEANING OF THE TERM " CHOSES IN ACTION." A claim is said to be negotiable, Avhcn the law will permit the person to whom it is assigned to sue upon it in his oum name as , plaintiff. A claim' or right to a sum of money, for which an action may be brought, is called a chose, or thing, in action; and this chose in ac- tion may be a bond, account, or in fact any demand arising on contract, whether payable immediately, or due at a future period; "whether in or out of suit. It is a general rule, that no chose in action can be transferred or assigned so as to give to the person to whom it is assigned a right to sue upon it in his own name. The only exception to this rule is in the case of bonds, promissory notes, and bills of exchange. Even an assignment of these does not give the assignee(l) a right (1) Assignor is tlic person \\\\n transfers or assig-ns an instrument, or other thing-, and the assignee is the person to whom the transfer or assignment is made. It will be observed, that the terminations or and ke are often used to designate the two parties to a transaction. The or has an active, and the ee a passive signification; thus: the grantt/r of a deed, is the one who does the act of granting; and so the mortgagor in a mortgage, the obligor in a bond, and the covenantor in a sealed contract, are the persons who severall}' do the act of mortgaging, &c. : and the grantee of a deed, the mortgagee of a mortgage, the obligee of a bond, and the cov- enantee in a contract under seal, are the persons to whom the deed, mortgage. \Pt. 2, Tit. 7, §2, 3,] ASSIGNMENT OF CHOSES IN ACTION. 21 1 to sue upon them in his own name, unless they contain all the re- quisites hereafter pointed out for such instruments. (1) In the following remarks, the term clioses in action will be used to designate claims or debts, not negotiable. Sec. II. — HOW choses in action may be assigned. No particular form is required for the transfer. Indeed, the mere delivery of a bond, covenant, note, account, or other claim, for a valuable consideration, is a valid assignment, if" such delivery was intended by the parties as a ti'ansfer.* So, a delivery of a note to receive its amount and apply to a debt, is an assignment of it.*' A judgment may be assigned for a valuable consideration either ver- bally or by writing, without seal,*^ or even by a delivery of the exe- cution to the assignee,'' if such act was intended as an assignment. An assignment indorsed on a note, and the note retained by the assignor until his death, without proof of any sale or contract foj: the note, vests no interest in the assignee,® even though the executor or administrator of the assig4;ior afterwards deliver the claim to the assignee. Sec. III. OF THE RIGHTS OF AN ASSIGNEE OF A CHOSE IN ACTION against THE DEBTOR. The assignee of a chose in action, as has been before stated, can- not sue upon it in his own name. But if the debtor has, for a valid consideration, expressly promised to pay him, he may sue upon that promise in his own name,= even where the instrument assigned is a sealed one."" Although the assignment of the claim to the assignee be made by delivery only, this will give him, as incident to the assignment, a risrht to use the name of the assignor/ in a suit ao-ainst the debtor. («) 17 Johns. Rep. 284; 13 Mass. Rep. 304; (e) 2 Ohio Rep. GO. 19 Johns. Rep. 95; 15 Miiss. Rep. 481. (g) 10 Mass. Rep. 316; 15 1(1.387; Wright's (b) lCaine'sRep.363; 3 Johns. Rcp.71,72; Rep. 434. 12 Johns. Rep. 346. (h) 4 Cow. Rep. 13. (c) 19 Johns. Rep. 342. (i) 13 Mass. Rep. 304; 4 I<1. 508; Wright's (<1) 15 Mass. Rep. 481. Rep. 737. bond, or covenant, Is made: So, the vendor of .cjoods, is tlic person \\\\o makes tlie sale, and tlie vendee is the person to whom tlic sale is made; the \yX\\or of goods is tlie jferson wlio lets them to hire, and the bailee is the person to whom the goods are hired; tlie promisor in a note is the person wlio makes the promise, &c. In these cases, and generally, it will be found that the termination oii designates the doer, promisor, or giver; and the termination ee, the person to or for whom tJie act is done. (1) See Title 31. 212 ASSIGNBIENT OF CIIOSES IN ACTION. [PrL 2. Tilk 7, After notice of the nssiiinmciit, the debtor cannot, in general, make any new arrangement with the assignor, so as to prejudice the rights of the assignee. Therefore, if the debtor pay the assign- or," oV procure his release of the debt,'' after notice of the assign- ment, it will not alfect the rights of the assignee. The declarations of the assignor, made after the assignment, can- not be given in evidence by the debtor so as to prejudice, in any way, the rights of the assignee.*^ \\'herc the delator, having notice of the intended assignment pre- vious thereto, makes no objection, he will l>e considered as consent- ing to the assignment and as waving his right to any set oU" in an action brought against him for the benefit of the assignee.*^ A special notice of the assignment actually served on the debtor, need not be shown; but it is enough, if from the facts and circum- stances, it may be fairly presumed that the debtor had positive no- tice of the assignment." It has been decided, that if A owes you, and before the com- mencement of a suit to recover the debt, he ac(iuircs by assignment a chose in action against you, he may set this oil' against your claim, although he could not sue you upon it in his own namc.s Tiiis ques- tion has not been fully settled, in any reported case, by the supreme court.** Sec. IV. — OF the rights of the assignee of a chose in action AGAINST THE ASSIGNOR. If the assignor falsely and knowingly misrepresents the pecuni- ary circumstances of the debtor, and thus actually deceives the as- signee, he may immediately return the claim and sue the assignor for the goods or debt for which the claim was assigned.(l) Such a fraud so far puts an end to the contract, that the assignee will have the above mentioned remedy, even if he expressly agreed to take the claim at his own risk.' So, the assignee has the same remedy, if the assignor knew the claim to be unfounded, and concealed it from the assignee.'' When there is an understanding lietween the assignor and as- signee as to the risk of the insolvency of the debtor, and there has (a) 3 Johns. Rep. 425. (g) 8 Johns. Rep. 118; 2 BayV Rep. 481; 1 T. R. (b) 13 Mass. Rep. 304; 1 Johns. Ca. 411; 621. 623; 3 Rinney, 135; 6 Cow. Rep. 693; 11 Johns. Rep.47; Wright's Rep. 35. 9Covv. 297, S.C.; 5 Co\v.23I; 5 Wcn(1.346; (c) 10 AVcnil. Rep. 675. 7 Taunt. 237. 243: but see 16 East, 36; 4 B. (d) 16 Mass. Rep. 397. and A(lol.745. (e) 12 Johns. Rep. 343; 9 Id. 64; Wright's (h) Wriul.i's Rep. 281. Rep. 501. (i) 6 Jolins. Rep. 110. (k) 4 East's l!ep. 147. (1) a Johns. lirp. 110; 5 Td. 73; 1.5 /r/. 475; 8 Id. 79; 1 Esp. Ca. 43i); 2 Id. 522. See the law in relation to a IVaiicl in the quality ol'g'oods sold, which is fully stated in Part 2, Title 32, §G. The same ndcs apply to tlie assignment of choses in ac- tion. 3 Yeate's Rep. 531; 10 Mass. Rep. 245. §3, 4.] ASSIGNMENT OF CHOSES IN ACTION. 213 been no fraud nor misrepresentation, such agreement will control the rights of the parties. It is not unusual, however, for persons to make an arrangement in relation to the transfer of a claim, and hand the same over, with- out endorsement, and without any express understanding as to who shall bear the loss in case the claim is not paid by the debtor. In such cases, where nothing is said about the risk by either party, if the assignment was made in exchange for property, it will be pre- sumed in the absence of all proof to the contrary, that the assignee took the claim at his own risk; but if assigned to apply to a prior existing debt, the presumption will be otherwise, and the assignee may sue for the prior debt.^ Thus: if you sell me a horse or other property for an account or other chose in action against S, and it is not determined between us at the time, at whose risk the claim is taken, and there is no fraud or misrepresentation on my part, as to the claim or the solvency of S, and S is, at the time, and continues insolvent, it Avill be your loss. The claim was received in exchange for the property. But if I owe you a debt and afterwards deliver to you a claim against S, it will be presumed, unless the contrary appear from the proof, that the claim against S was not received by you in payment and discharge of the debt, but collaterally, to be applied to its payment when collected, and consequently you may sue and recover your debt from me.* This implied agreement, however, as has already been said, is like all others, liable to be controlled by the contract of the parties. — Thus: If I hold the note of A, and am indebted to you, and you receive my claim against A, in discharge and payment of my debt to you, — if this be fairly done, and I do not indorse the note of A, my debt will be paid, and you can only look to A,** So, where the defendant to whom a negotiable note w^as payable, indorsed it, in these words, to the plaintift^ — "For value received, I sell, assign, and guaranty the payment of the within note to [the plaintiti'] or bearer," — it was decided by the court that this w^as aii ahsohite and unconditional engagement,(l) that the person who executed the note should pay the note when due, or that the defendant would pay it himself; and that the plaintiff was not, therefore, bound to prove a demand of the maker and notice of non-payment, as in case of an ordinary indorsement of negotiable instruments,'^ If the assignor, when he transfers a claim, signs his name in blank, on the instrument, it is presumed, unless the contrary ap- pear by proof, that he intends to be responsible for the payment of the claim, and in that case the assignee may fill up the indorsement (a) 11 Johns. Rep. 410. 414; 15 Id. 241; 15 East, 12; 1 Salk. 124; 3 Wend. Rep. 66; 8 Pick. Rep. 522; 6 Mass. Rep. 322; 17 id. 1; 8 Wend. Rep. 535. (b) 7 Mass. Kep. 286. (c) 20 Jolins. Rep. 365. (1) An absolute promise is one wliich bus no condition annexed to it, by the hap- penin;^ or not happenini^ of which, its performance will be excused. A condi- tional promise has a condition annexed to it wliicli may forever prevent a breach of the promise. 214 ASSIGNMEFT OF CHOSES IN ACTION. [P7^L 2, Title 7, with an absolute and unconditional promise — thus: "For value re- ceived, 1 unilertakc to pay the money within mentioned to" the assiirnec: And upon such endorsement the iissij^nec may sue the assii^nor for the amount of the claim.(l) \\'hen a claim is so assigned as to make the assignor condition- ally liable, either for the original, debt upon which the assignment was received, or conditionally liable upon the assignmeut itself, th* assignee will discharge the assignor, if he neglect or delay, to the injurvofthe assignor, and for an unreasoimble time, to demand payment from the person against whom the claim assigned exists.* The assignee is not, in general, bound in such case to observe the same promptness in making demand of payment from the debtor as is required of the holder of a negotiable instrument; nor need he, before he proceeds against the assignor, sue such debtor, unless that was the agreement between him and the assignor.^ If the claim assigned turn out to be a forgery, the assignor, though ignorant of the fact at the time of the assignment, (whether he agreed to be answerable to the assignee for the payment of the claim, or not.) will be liable for the original debt^ goods or money given for the claim. (2) It is a common practice when a suit is brought on a cho«e in ac- tion which has been assigned, to name the person on the docket, for whose use the plaintilfsues, — thus: "A. B. for the use of E. F., v. C. D." In such case, A. B., to whom the claim was originally due, is the plaintiff', and E. F., the assignee, being thus named, does not become a party to the suit. It is not necessary to thus mention the assignee. If mentioned in the summons, &c. it would be notice to the defendant, justice, constable, and others, from the time they saw the parties thus named, that E. F., (the assignee,) and not A. B., was the reputed owner of the claim, to whom the same should be paid. Even when the assignee is thus mentioned on the docket and in the process, the plaintiff' need not prove that the claim has, m fact, been assigned to E. F., or to any one.*^ V/here, however, the defendant sets up a defence which can only be defeat- fa) 7 Pet. U. S. Rep. 128; 12 Id. £03. (c) 2 Ohio Rep. 25. (b) 6 Cow. Rep. 624; 12 Pet. 503; 8 Wend. 403. (1)3 3I(iss. Hep. 274; 12 Id. 52; 8 jrcird. Hep. 421. It woultl seem tbat in such case, where the contract of tlie guarantor is absohite and iincondition:il, no de- mand ujion the debtor need be made, and no notice need be given to tiie assignor, of" non-payment by tlie debtor, in order to render tlie iissignor liable. /«/.; 20 Johns. Hep. 36.5; 7 Peters' U. S. Rep. 127. (2) 'i Johns. Rep. 4.55; 15 Id. 210; 4 Tiiiint. 288; 1 Enp. Cn. 3. But see G Jlliw-s. Jiep. 321, wliere it is determined tiiat if A sells goods to 15, and agrees to receive certain promissory notes in payment — if the notes are afterwards discov- ered to be forged, and P. was ignorant of the fact, A cannot afterwards resort to B for liie payment of the goods, unless he has indorsed them. But if the debt for which the forged notes are delivered was originally pa) able in money, then the assignment of the notes for the accommodation of the assignor does not pay the debt. It is believed, however, that the general rule laid down in the text is more just and reasonable than tlie one established in Massachusetts. ^4,5.] ASSIGNMENT OF CHOSES IN ACTION, 216 ed in consequence of the assignment, it will then be necessary to prove the assignment; which the assignee may be permitted to do, whether he is named in the docket, or not. Thus: if the defendant set up in his defence, payment, or the like, made to the assignor, after notice given him of the assignment, the assignee ought then to prove that the assignment was made and notice given to the debtor before such payment. Sec. V. — OF the right of the debtor where a chose in action HAS been assigned. Where the assignee of a chose in action sues upon it in the name of the assignor, the defendant is entitled to set up any defence or facts against a recovery, which existed before he had jiotice of the as- signment; and this he may do to the same extent and in the same manner as if the claim had never been assigned.* A debt, there- fore, due the defendant from the assignor, which was held before notice of the assignment, and before the commencement of the suit, may, in such case, be allowed as a set ofl'; but not one that is ac- quired afterwards.'' Thus: if A owe you, and you owe him a debt, and afterwards you assign your claim to C, \\4io sues A in your name, A may set off what you owed him, or any debt which he ob- tained against you, before notice of the assignment. It has been determined by respectable and authoritative courts, that where a suit is brought in the name of an assignor, the defend- ant may set off a debt due him from the person for whose use or benefit the suit is brought.*^ I do not know whether this question can be considered as settled or not, by the supreme court of the State ;'^ but if settled, it is against the allowance of such set off. At all events, if a set off can be allowed, and the amount due to the defendant from the person for whose use the claim is prosecuted, exceed the amount of the claim sued upon, the justice should note on his docket the amount of tlie two and the amount allowed as a set off' to balance or liqui- date the claim sued upon, and render judgment for the defendant for costs only.(l) (a) 20 Johns. Rep. 144. Wend. Kcp. 346. If a cestui que trust is (b) 12 Mass. Rep. 195; 12 Jolins Rep. 343; 3 ciiliiled to the privilege of set oil', (which Coweri's Kep. 353. is a disputed question,) I can sec no reason (c) See 1 Wash. C. C. Rep. 424: 11 Wend. why a set olf is not admissible against hiiu. 504; 9 Cow. Rep. 299; 8 Jolins. Rep. 152; Sec an/e page 212. 3 Yeate's Rep. 2ti7; 1 T. R. 622, 623; 5 (d) Sec Wright's Rep. 281. (1) See further in relation to set off and the general rules relating thereto, Part 2, Title 33. 216 ASSIGNMENT OF CHOSES IN ACTION. [Pr/. 2, Tithl^^G.'] Sec. YI. — of the Lr ability of the assignor and assignee for COSTS. The name of the assignor is made use of as plaintifl' when a suit is brought upon an assigned chose in action, and in such case if judgment is rendered in favor of the defendant for costs, it is of course rendered against the assignor, and the execution must be against him,* even though the assignee agreed with the assignor to pay the costs. Where tlic assignor is insolvent, the costs may be afterwards recovered by the persons to whom they are due, l)y sepa- rate suits against the assignee for wliose use and by whose direction the suit is prosecuted.'' (a) 2 Wend. Rep. 245. (1)) Wrisht's Rep. 375; 7 Cow. Rep. 650, 2 Iil. 460; 20 Jolins. Rep. 47; 11 Wend. Rep. 570. TITLE VIII. ATTACH.AIENT.(l) SECTION I, IN WHAT CASES AN ATTACHMENT MAT ISSUE. II. OF THE AFFIDAVITS OF THE CREDITOR TO OBTAIN PROCESS. III. OF THE ISSUING OF THE WRIT, AND THE NATURE THEREOF. IV. OF THE PROCEEDINGS OF THE PLAINTIFF AFTER THE WRIT IS ISSUED AND BEFORE TRIAL. V. OF THE SERVICE AND RETURN OF THE ATTACHMENT WHERE NO ONE PREFERS A CLAIM TO THE PROPERTY ATTACHED. VI. OF THE MODE OF PROCEEDING AND FORMS WHERE PROPERTT ATTACHED IS CLAIMED BY A THIRD PERSON. VII. OF PROCEEDINGS AGAINST THE GARNISHEE, AND FORMS THEREFOR. VIII. OF PROCEEDINGS ON THE WRIT OF AXXACHMENT AFTER ITS RETURN. IX. FORMS OF AFFIDAVITS FOR A WRIT, AND FOR PROCEEDINGS AGAINST A GARNISHEE. X. FORM OF A WRIT OF ATTACHMENT. XI. FORM OF A WARRANT AGAINST A GARNISHEE. XII. FORM OF NOTICE OF THE ISSUING OF AN ATTACHMENT. XIII. FORMS OF RETURNS TO AN ATTACHMENT, AND THE INVENTO- RY AND APPRAISEMENT. XIV. FORM OF BOND TO A CONSTABLE FOR THE RE-DELIVERY OF PROPERTY. XV. DOCKET ENTRIES IN ATTACHMENT. Sec. I. IN WHAT CASES AN ATTACHMENT MAY ISSUE. Atlachment is a proceeding by which the property and effects of an absconding debtor, or a non-resident of the county where the attachment is issued, are subjected to seizure and sale for the pay- ment of debts. From the general tenor of the statute regulating the proceeding by attachment," it would seem that an attachment cannot be issued (a) Ptat. 80. (1) As to attacliments against a witness, see from pag'e 54 to 56, and pages 66» 88 and 89. As to contempts of bystanders, &.C., see Part B, Title 13. 28 218 ATTACHMENT AFFIDAVIT. [P/t. 2^ Title B^ to recover uncertain damages for an injury done to the person or property of another. Tlio remedy seems only applicable where the relation of debtor and creditor subsists, and to cases arising out of, founded upon, or sounding in contract. The party sued under the statute, must be either an absconding debtor, at tlic time the writ issued, or a non-resident of the county in wiiich the proceedings are commenced.* A creditor is not authorized to resort to process of attachment against joint debtors, unless they are all non-residents, or have ab- sconded. So long as one joint debtor or contractor remains within the jurisdiction, who can be personally served with process, the creditor must seek his remedy by another form of action.'' Sec. II. OF THF. AFFIPAVITS OF THE CREUITOR TO PJlOCUIiK PROCESS. No writ of attachment cnn he issued by a justice until tlie cred- itor, his agent, or attorney, files an affidavit, setting forth that the debtor absconds to the injury of such creditor, or that the debtor is not a resident of the, county. *(1) If the creditor intends to obtain property, in the hands of a third person, belonging to the debtor, or intends to make a third person accountable to him for a debt which he owes the defendant, either tlie creditor, or some other credible person, must mak-e ont.li or affirmation that he has good reason to believe, and does verily believe, thai such third person is indebted to, or hath property in his possession belonging to the defendant in attachment. The property must be described in the affidavit.'^(l) The person thus indebted to, or having possession of the property of the defendant, is called the garnishee. If the plaintiff makes oath or affirmation before the justice, that he is in fear such garnishee will abscond before judgment can be had, and that he believes the garnishee hath moneys, goods, chattels, or eflects, in his possession, or is indebted to the defendant, (1) the justice may issue a warrant against the garnishee, or other person holding property of the defendant.'^(2) Sec. III. OF THE ISSUIXG OF THE AVRIT, AND THE NATURE THEREOF. Upon the creditor filing his affidavit that the debtor absconds, or is not a resident of the county, as above mentioned, the justice issues an attachment under his hand and seal, directed to any constable of (a) Stat. 80, ^1. (c) Stat. 83, $12. (b) 4 Obio Rep. 154. (d) Id. 84, $14. (1) For the fonii of the affidavit, see ^9, of this Title. (2) For the form of the warrant, see § 1 1, of this Title. §2,3,4,3.] ATTACHMENT THE WRIT. 219 his proper county, commanding him to attach the property and ef- fects of the debtor, and return the writ within twenty days,^(l) If an affidavit has been filed by the creditor, charging any person as garnishee, a copy of such affidavit sliould be handed over to the constable with the writ. The justice must indorse upon the back of the writ the amount of the sum claimed and costs, that the defendant, or any one for him, may pay the same.'' Sec. IV. — OF PROCEErrNGs by the plaintiff afteh the writ is is- sued AND before trial. The person taking out the writ of attfichnient must forthwith ad- vertise in three of the most public places in the proper county, and in some newspaper printed in the county, if a newspaper be printed therein, (and if no paper be printed in such county, such notice must be' advertised in some paper in general circulation in the coun- ty.) that an attachment has been taken out from such justice, against such absent or absconding debtor: and the plaintiff must transmit to the justice a copy thereof, and produce to him satisfactory evi- dence of having advertised, as above mentioned, thirty days previ- ous to entering judgment,''(2) Sec. V. OF THE SERVICE AND RETURN OF THE ATTACHMENT, WHERE NO ONE PREFERS A CLAIM TO THE PROPERTY ATTACHED. The constable must execute the writ of attachment by going to the place where the defendant's property may be found, and in the presence of at least two credible persons, declaring that by virtue of the writ to him directed, he attaches the goods, chattels, rights, credits, moneys, and effects, of the defendant, at the suit of the plaintiff in attachment. He must also take to his assistance, two respectable freeholders, and administer the proper oath(3) to them, who, with the constable, must make a true inventory and appraise- ment of the property attached. The inventory must be signed by the freeholders, and constable, and returned with the writ. The (a) Stat. 80, $1. (b) Id. 86, $23. (c) IJ. 81, $3. (1) For the form of tlie writ of attacliment, see §10 of this Title. (2) For the form of ll»e notice, see §12, of tliis Title. (3) Tiie oatii may be in tiie form follawing-. Yon, and cacli of yon, do solemnly swear, in tlie presence of Almighty God, the searcher of all liearts, that you will make a true inventory and appraisement of the property of C D , attached by me, at the suit of A 13 -. 220 ATTACHMENT SERVIC K OF WRIT. \^P I'l. % Title Q^ constable must, indorse on tlie writ the time find manner ofse'rving the same, and subscribe his name there1o/(l) His jurisdiction on the attachment is co-extensive with the county. A person who holds goods of the debtor, in })ledS'ea/,] E F [>S'ea^.] Sec. XV. DOCKET ENTRIES WHERE THERE IS NO GARNISHEE. A B ,^ vs. > In Attachment. C D ,S PlaintifT's claim [liere give the particulars of the claim, as directed^ page 1 1 5.] June 1, 1846. The plaintiff filed his bill of particulars, and his affidavit, that the defendant is justly indebted to him in the sum of , or more, but not exceeding one hundred dollars, and said de- fendant absconds, to the injury of his creditors, [ In attachment. D- \Hei-e state particularly the nature of the plaintiff'' s claim^ June 1, 1846. The plaintiff filed his affidavit, that the said C p is indebted to him in the sum of dollars, or more, and that the said C D is not a resident of the coun- §15.] ATTACIIMF,>'T DOCKET ENTRIES, 535 ty of , as he verily believes, [or hath absconded, to the in- jury of his creditors.] and that the said A B hath good reason and doth verily believe that, [fcc, /ie?'e inserting the words of the ciffidavit^ icifh the descriplion of the property as therein mention' ed;^ thereupon I issued a writ of attachment against C D , with a summons for [or a warrant for the body of, as the case may be^ said I G , for his appearance on the day of -, 1 846, at ^ and delivered the same to I J con- stable. June 6, 1846. Attachment returned, [here copy the 7'eturn of the constable in fid/.^ The said I G at the same time appeared, W'as examined under oath touching the property or credits in his possession or knowledge, who made the following statement: [Here reduce the testitno?iy of the garjiishee to writings thus: '•'•That he is indebted to C D in the sum of fifty dollars, on book account, which is due and unpaid." If the garnishee is brought before the justice by warrant for his body^ a recognizance must be taJcen^ which should be here entered. See the form, page 225. If the garnishee refuse to enter into recogni- zance icith security^ he must be committed to jail. See the form of the mittimus, page 225. The fact of the refusal or failure to enter into recognizance.^ and that the garnishee was committed to Jail^ shoiild be stated on the docket., and then proceed as follows {] Whereupon further proceedings against said garnishee were con- tinued, until the — day of , 1846, — o'clock, P. M. [here enter., as in the preceding foi^m., the presentation or description of such claims as may be produced by other creditors., and that they were ad- journed over for inquiry and trial^ June — , 18 — . The plaintiff [and above named creditors] ap- peared, and the plaintiff produced a copy of his advertisement, and satisfactory evidence of having advertised the issuing of the attach- ment herein, fcc, agreeably to law. Thereupon the said claim of the said plaintiff, [Sfc, here entering the same facts., so far as they are applicable., which are found in the preceding form., between the two *5, and then proceed as follows-] June — , 18 — . The plaintiff and said I G appeared, trial had, and the latter [not having paid over to me the moneys aforesaid, due from him to said C D , or if the garnishee have property., ichich he acknowledged on oath to be hi his hands., sa^j., ''not having delivered up to said constable the goods and chattels aforesaid, of said C D , in his possession, I do find upon testimony now here examined, that the same are of the value of dollars;" or if the plaintiff wishes to prove that the garnishee is liable for more than he has acknowledge I., then., instead of makivg either of the above two last entries, say, "Th^^. said plaintiff* and said I G appeared, trial iiad, and I do find that," here state the amouni of the debt due by tho garnishee to the defendant, or t' e kind and value of the properly which is found to he in tie possession of the garnishee. Judgment is then entered against the garnishee, as in other cases.'\ 23G ATTACHMENT DOCKET ENTRIES. [^Prt. 2, TU. G, §1^.] J50CKET ENTRV WHERE THERE IS A CLAIMANT.(]) A — B — ,:) vs. )> In attnchnicnt, for \vliich sec docket, pna;e D- JiDic — , 18 — . K Ji this (lay filed \\i\\\ nio the follow- ing notice in writing: [^licj'c copy the votice in ./"//•] Whereupon, I delivered a notice in writing to said ]v L , to be delivered by him to I .T — — , constable, which is as follows: [Jicj-e copy the notice in full.'] June — , 18 — , Constable returned the notice, indorsed, June — , 18 — . Delivered a copy of the within notice to the within named plaintiff in attachment. Fees — . I J , Constable, June — . 1 8 — , o''clock , [///f? time mentioned in the no- tice., for trial J\ the said A B and K > T>- appeared, [Jiere enter the jxidgment. See the form., page '2,'2'2.., note (3), (4).] (1) This need not be entered on the docket with tlie proceedings In attachment. TITLE IX. BAILMENT.(l) Bailment is the delivery of goods in trust, for some specific ob- ject or purpose, and upon a conti'act, express or implied, to conform to the object or purpose of the trust. The person who delivers the goods is called the bailor^ and he to whom the goods are delivered is called the bailee. The law of bailments is generally founded upon the absence of any positive engagements between the parties, in relation to the care with which the goods shall be kept, or who shall bear the loss, if they are injured or destroyed. An express contract of the parties would, of course, dispense with the necessity of any law upon the implied contract; and a special agreement by any bailee, to use more or less care than the law would have required from him, is in general, valid and binding. So, where particular orders are given and assent- ed to, they form the contract lietween the parties, and the law im- plies a promise by the bailee to perform such orders.^ It will be proper in the first place, to consider what is meant in the following pages, by common or ordinary diligence, slight dili- gence, ordinary negligence, slight negligence, and gross neglect; although the terms themselves may, to most minds, convey the true meaning, without explanation. Common or ordinary care or diligence, is that degree of diligence and care which men of common prudence exercise in respect to their own concerns. vSlight diligence, is that degree of diligence which men liabitually careless, or possessing little prudence, usually exercise in the man- agement of their own business. Ordinary negligence is the omission of that care which men of common prudence take of their own affairs, or in other words, it is the omission of ordinary diligence. Slight negligence is the omission of that diligence which very circumspect and thoughtful persons use in securing their goods and chattels. Gross neglect is that omission of care which even the most inat- tentive and thoughtless men take of their own concerns; or in other words, it is the omission of that slight diligence above described. (a) Eng. C. L. Rep. 233. (1) Tlie law in tliis Title will be found in Story on Bailments, and Kent's Com- mentarie«. 238 BAILMENT GRATUITOUS DEPOSIT, [P/'Z, 2, Titled^ The subject of bailments and the rights and liabilities of the bailor and bailee, Mill be examined in the following order: SECTION I. •\VIIEUE GOODS ARE DEPOSITED TO BE KEPT WITHOUT REWARD, AND TO BE RETURNED WHEN THE BAILOR SHALL REQUIRE IT. II. AVIIERE A PERSON DELIVERS GOODS TO ANOTHER TO BE CAR- RIED WITHOUT REWARD, OR TO HAVE SOME ACT PERFORM- ED ABOUT THEM AVITHOUT REWARD. III. AVHERE A PERSON BORROAVS AN ARTICLE TO BE USED FOR A LIMITED TIME AVITHOUT PAVING FOR THE USE. IV. AVHERE GOODS ARE DELIVERED BY A DEBTOR TO HIS CREDITOR, TO BE KEPT AS A SECURITY FOR A DEBT OR ANY ENGAGE- MENT. V. AVHERE GOODS, ANIMALS, OR OTHER THINGS ARE DELIVERED TO A PERSON TO USE FOR A TEMPORARY PERIOD, AND FOR AVHICH USE HE IS TO PAY A COMPENSATION. VI. AVHERE ARTICLES ARE DELIVERED TO A PERSON THAT HE MAY, FOR A COMPENSATION, BESTOW WORK AND LABOR, OR CARE AND PAINS UPON AND ABOUT THEM. A'll. OF THE RIGHTS, DUTIES, AND LIABILITIES OF THE CARRIERS OF GOODS FOR HIRE. VIII. OF THE RIGHTS, DUTIES, AND LIABILITIES OF CARRIERS OF PASSENGP'.RS. IX. OF THj: RIGHTS, DUTIES, AND LIABILITIES OF INNKEEPERS, Sec I, AVHERE GOODS ARE DEPOSITED TO BE KEPT AVITHOUT REAVARD, AND TO BE RETURNED AVHEN THE BAILOR SHALL REQUIRE IT, This is usually called a deposit. In respect to the persons by and between whom it may be made, it is only necessary to say, that it is not distinguishal)Ie from other contracts in this respect. Infants and married women cannot be bound as depositors, though other persons may be so bound to them. If an infant receives a deposit, he is bound to restore it, if it is in his possession or control, but cannot be sued if he lose it. He isj'esponsible for any wrong he does to it; but he is not responsible upon the contract, unless it be a necessary contract, and manifestly for his benefit. Personal property of all kinds, and instruments of writing, may become the subject of deposit, A person who holds property even by a wrong, and without title, may lawfully deposit it, and he is entitled to recover back the same, against every one but the rightful owner. §1.] BAILMENT GRATUITOUS DEPOSIT. 239 i The delivery of property to the servant or agent, as such, is a delivery to the master or principal. If a person by mistake, or otherwise, receive his own property on deposit, the bailment is destroyed, and he is not bound to restore the o-oods. Where a person takes property to keep, without reward for so doing, he is bound to take reasonable care of it, and is answerable only for gross neglect. What is reasonable care must depend upon the nature and quality of the thing, and the circumstances under which it is deposited. Where a person had a deposit of money, and put it with his own in a valise, on board a steamboat, and left it there, in an exposed situation, all night, and it was stolen, he was held responsible, for gross negligence. But if he had left it for a moment only, under ordinary circumstances, and no pressing dan- ger, it would have been otherwise. Where property is confided to the care of a particular person by one who may be supposed to be acquainted with his character, the care which he would take of his own property, whether negligent or otherwise, would be the kind of care required of the bailee. But if the bailor did not know the habits of the bailee, or could not be presumed to trust to such care as the bailee might use about his own property of a like nature, then the bailee Vvill be responsi- ble if he does not exercise ordinary and reasonable care. What would be reasonable care of a bag of wheat, or a load of wood, might be gross neglect if the bag contained money, or the load were looking-glasses. The nature of the deposit, its value, and the danger of loss, must be taken into consideration when determining the question of reasonable care or gross neglect. If the negligence be such as a person even of slight diligence would not be guilty of, the bailee is liable. If at the time that the goods are deposited, a contract is made which enlarges or narrows the responsibility of the bailee, he will be liable, according to the terms of the contract. When the bailee receives benefit from the deposit, he is liable for slight negligence. The same rule in relation to the case of goods, applies to a person who finds property that is lost. He is only liable for gross negli- gence. In general, the person with whom goods are deposited to be kept without reward, has no right to use them, unless the goods are of such a kind that it is necessary to use them in order to take care of them, or where it may be fairly presumed, from the nature of the goods or otherwise, that the owner consented that they might be used. When money is locked up in a chest and left in the care of a person, it could not be presumed that the owner intended that the money should be taken out of the chest and used. If a milch cow were deposited it might be fairly presumed that the owner consent- ed that the cow should be milked. If the use would be for the benefit of the owner, his consent may be presumed; if to his injury, or perilous, it ought not to be presumed. The person with whom property is thus deposited can sue for and recover in his own name against any wi'ongdoer who takes or in- 540 BAILMENT GRATUITOUS CARRlKIl, &LC. [Prt. 2, Title 9, jures it. The owner may also do the same, but it" lie recover, the person \vith \vlioin the deposit was made cannot afterwards sue for the same injury. Tlie property must be returned, as well as its in- crease or [>rofits. If an animal deposited brings forth young, the latter are to be delivered to the owner. If the person who made the deposit was not, in fact, the owner, but come to tiie possession of the goods by theft or otherwise, the goods should not be deliv'- ered to him, but to the owner. If the bailee refuse to deliver such goods to the owner, he will be liable to him for their value. If A delivers goods to B, to be delivered over to C, then C hath the {)ro- perty, and may demand the goods; for B has no interest or claim in the goods, except to deliver them, which he undertakes to do. But, in such case, there must be a clear assent on the part of B, to such undertaking, and the mere receipt of the goods will not al- ways be sufHcient to establish such assent. When two or more joint owners of property deposit it, the bailee is not, in general, bound to re-dcliver the property, except by the consent of all the parties. But this rule does not ap])ly where one of the joint own- ers, without the consent or knowledge of the other, made the de- posit. In such case, the person who deposited the property has a right to claim it from the bailee. Where the deposit is made with two or more persons each is liable for the gross negligence, and in general, for the fraud of the other. The person with whom property is deposited is entitled to be paid all necessary expenses to which he has been subjected for its preservation. He has a lien on the property and is not bound to deliver it up until such expenses are paid; but he has no right to detain it for any other debt, or on any other account or claim, than such expenses. If he improperly refuse to deliver the property when demanded, he afterwards holds it at his peril, and is answer- able to the owner for all defaults and risks whatever, even if the property be afterwards lost by force or inevitable accident. Where money paid into a bank is passed generally to the credit of the owner, and not placed or received as a special deposit^ the bank do not hold the money as bailees^ but the relation of debtor and creditor is created, and the money may be applied by the bank to the payment of any demand they may have against the depositor; and if the money be lost, though without the fault of the bank, the depositor is entitled to payment.* Sec. II. AVHERE A PERSON DELIVERS GOODS TO ANOTHER TO BE CAR- RIED Wri'HOUT REWARD, OR TO HAVE SOME ACT PERFORMED ABOUT THEM WITHOUT REWARD. Where there is an understanding to do an act without any re- ward or consideration, the person who delivers or owns the goods has no right of action if the person omit to perform the act about (a) 17 Wend. 94. §1,2,3,] BAILMENT BORROWER. 241 them as he agreed to do. The contract is without consideration and void. Although such person is not bound to do the act, yet if he proceed to do it he will render himself liable to an action for any injury arising from gross negligence in its performance. As, where the defendant undertook, gratis^ to carry several hogsheads of brandy from one cellar and deposit them in another, and he did it so negligently and carelessly that one of the hogsheads was stav- ed and the brandy lost, it was decided that the defendant, not hav- ing used ordinary care, was liable for the loss. A bailee who acts without reward, in a case in which neither his situation nor employment necessarily implies any particular know- ledge or professional skill, is held to be responsible only for bad faith or gross negligence. Thus, where a general retail merchant under- took voluntarily, and without reward, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom house, for exportation, and he made an entry under a wrong name, whereby the parcels were seized: it was held that he was not liable for the loss, inasmuch as he took the same care of the goods of his friend as of his own, and had not any reward for his undertaking, and he was not of a profession or employment that ne- cessarily implied skill in what he undertook. But if a physician should undertake, gratis^ to attend a wounded person, and should treat him improperly, he would be liable lor improper treatment; because his profession implied skill. If, however, the business to be transacted presupposes a particular kind of knowledge, and a person totally ignorant of the subject undertakes to do it, without reward, it is said that he cannot excuse himself on the ground that he performed the act as well as he was capable of doing it.(l) Sec. III. WHERE A PERSON BORROWS AN ARTICLE TO BE USED BY HIM FOR A LIMITED TIME WITHOUT PAYING FOR THE USE. In such case, the article or thing, such as a horse, carriage or book, is to be returned, and in as good plight as it was when delivered, subject to ordinary wear and tear from its reasonable use. The borrower can sue a wrongdoer for taking or injuring the property borrowed. (1) It may not be ifnproper here to remark, (hat justices of the peace are often called npoTi to ih'aw instiununts wliicli none but an able lawjtr can draft correct- ly. 'I'liey siiould be extremely cautious about entering upon tiie performance of such an undertaking-. It is generally tlie interest of all parties to liave their con- tracts drawn by an experienced lawyer, as in the eTul it saves litigation, misunder- standing and expense. Men do not, in general, believe this, and will, perhaps, suspect my motives in giving this advice. To save a small sum they will run the risk of losing a large amount and involving themselves in a law suit. Their short sighted economy creates the principal income of lawyers. 31 242 BAILMENT PAWNS OR PLEDGES. [Prt. 2, Title 9, The borrower cannot apply tlie tliino; borrowed to any other than the very purpose and object for which it was borrowed, nor peni)it any other person to use it, as such gratuitous k)an is a per- sonal favor; nor keep it beyond ^he time limited, nor detain it as a pledge for any demand he ni;'y otlierwisc have against the bailor. If he does any one of these things, and the property is, by accident or otherwise, without his fault, injured or lost, he will be responsi- ble to the owner. A borrower is, in general, bound to bestow upon the preservation of the thing borrowed, not merely ordinary, but the greatest care, and he is responsible not only for slight but for the slightest ne- glect. He is not liable for an injury to, or the loss of a thing, by external and irresistible violence; as, if he borrow a horse for a journey, and he be robbed of the horse, or the horse be accidentally injured, without any neglect or imprudence on his part. The owner cannot require gre;iter care on the part of the bor- rower, than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and whom the owner knew to be such, the circumspection of an experienced rider wiU not be required; and what would be neglect in one would not be so in the other. The ordinaiy expenses attendant on a thing borrowed must be borne by the borrower, but if the expenses were extraordinary and arose from the unexpected and inherent infirmity of the thing, or were requisite for its preservation, without any neglect on the part of the borrower, the lender must bear them; and the borrower has a right to retain the thing until such expenses are reimbursed. As the bailment is gratuitous, the lender may terminate it when ever he chooses. Sec. IV. — WHEN goods are delivered by a debtor to his credi- tor, TO BE kept as a security FOR A DEBT OR EN- GAGEMENT. Such delivery of goods, as a security for a debt or engagement, is generally known by the name of pledging or pawning, and the person who delivers over the property is called the pawnor, and he to w^hom the pledge is given is called the pawnee. Negotiable pa- per, as well as personal property, may be the subject of pledge. The pawnee is bound to take ordinary care of the goods, and is only answerable for ordinary neglect. He, as well as the pawnor, may sue a wrongdoer for taking or injuring the property; but he that brings the action has the preference, and a judgment obtained by one is a bar to the action by the other. If the property be such as may be injured by use, as clothes or linen, then the pawnee cannot use tliem. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he may, in that case, use the pawn in a reasonable manner. If he §3,4.] BAILMENT PAWNS OR PLEDGES. 243 derive any profits from the pawn, he must apply those profits to- wards his debt, after deducting necessary charges and expenses. Extraordinary expenses necessarily incurred in the preservation of the pledge, without the default of the pawnee, must be borne by the pawnor. The law does not require any thing extraordinary of the pawnee, but only that he shall take ordinary care of the goods, and if they should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt; unless he has refused to deliver the pawn, on tender of the debt; for he then becomes a wrongdoer, and wiU be answerable at all events, for any loss or damage which may af- terwards happen to the pawn, whether by accident, or in any other manner. In general, however, if the pawn be lost by unavoidable accident or by superior foz'ce, or perish from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such cause be duly made to appear, and no act was done or omitted to be done, inconsistent with the pawnee's duty of ordinaiy care and diligence. Delivery of the property to the pawnee, is essential to create a pledge; and the pledge of movables, without delivery, is void as against subsequent purchasers, and generally as against credit- ors.(l) After the debt is due for which the property was pledged, and no contract was made in relation to the disposition of the property, the pawnee may, upon giving reasonable notice to the debtor to redeeni, sell the goods, or such part of them as will pay the debt. The notice to the party to redeem, is indispensable. The pledge covers, however, not only the debt, but the interest upon it, and all necessary expenses that may have attended the possession of the pledge; and the lien may, by agreement, be created to extend to cover subsequent advances. But the pawnee cannot retain the pledge for any other debt than the one for which the goods were pledged, unless circumstances appear which show that such was the agreement of the parties. In a suit for the pawn by the pawn- or against the pawnee, after due demand and refusal, the burden of proof that the pledge has been lost by casualty, without the fault of the pawnor, rests on him. But if a suit should be brought against the pawnee for a negligent loss of the pawn, then it would be in- cumbent on the plaintiir to prove the negligent loss. (1) The difference between a mortt^ag-e conveyance of pi'oods to secure a debt, and the pledge of g'oods for llie bke piii'pose, is this: Where goods are mort- gag-ed the title passes conditionally to ihe moi'tg-agee, and if not redeemed at tlie time stipulated, by the payment of the debt, the title becomes complete and ab- solute in him at law, thoug-ii a court of equity may compel a redeniption and an account, even though the ])arties agree that the mortgagee shall have the proper- ty mortgaged, if the flebt be not jiaid. fVrig/tl'a Jic]). 370. If there is a pledge, a special property only passes to the pledgee at law, the general property still remaining in the pledger, as will be seen hereafter by the text. 244 BAILMENT HIRER OF ARTICLES. \_PrL 2, Title 9, Sec. V. — AVHERE animals, goods, or other things, are delivered TO a person to use eor a temporary period, and for WHICH USE HE IS TO PAY A COMPENSATION. The one who lets tlie pro])evty to hire is called the letter^ and the person who hires it the /lircr. The letter has no right to disturb the hirer in the use of the thing during the period Tor which it is hired. If the hirer apply the thing to any other use or detain it for any longer period than that for which it was hired, and the thing should by inevitable accident, or otherwise, be injured or destroyed while thus detained or ini])roperly used, the hirer would be responsible for the injury or loss. Thus: where a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. So, where a carriage or horse is hired for a journey to Cleveland, the hirer has no right to go with it on a journey to Cincinnati, or beyond Cleveland. If they are hired for a week, he has no right to use them for eight days. While thus misused the hirer is responsible for all damages, whether the injury or loss to the thing arises from an accident which could not have been prevenied, or in any other manner whatever. But, in general, the hirer is only bound to take the same care, and use the thing hired in the same manner as prudent men under like circumstances use and keep the same kind of property. If a man hires a horse he is bound to ride it moderately and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food. And if he do so, and the horse in such reasonable use is lamed or injured, he is not responsible for any damages. If two persons jointly hire a horse and carriage on joint account, both are answerable for any misconduct or negli- gence of either, in driving, or in any other want of proper care. But it would be otherwise when one is the sole hirer and the other merely invited to ride; the hirer, in such case, alone being respon- sible. The hirer must restore the article in as good condition as when he received it, unless it be deteriorated by internal decay or by external means, without his fault; and if the article be injured or destroyed without any fault or neglect on the part (>f the person who hired it, the loss falls on the owner, for the risk is with him. But if the thing hired be lost or damaged by the hirer or by his servants, acting under him, from the want of common and ordinary care and diligence, he is responsible. If, therefore, a hired horse is ridden by the servant of the hirer so immoderately that he is in- jured or killed thereby, the hirer is personally responsible. So, if the servant of the hirer carelessly and improperly leaves open the stable door of the hirer, and the horse is stolen by thieves, the hirer is responsible therefor. If the servants of the hirer steal the goods, he is not liable, unless there are some circumstances which show in him a want of due diligence. §5,6.] BAILMENT ARTICLES TO WORK UP, &LC. 245 In estimating the requisite care and diligence, the value and na- ture of the property hired, and the security possessed by the hirer, must be taken into consideration. In case of loss by robbery, fire, theft, or other accident of a like nature, the hirer is not chargeable, unless it lias been occasioned by his own fault or neglect. The bailee, when sued by the bailor for the article hired, must show that he delivei^ed it to the plaintiff, or account for not doing so by showing a loss of it by some violence, theft, or accident. When the loss is shown, the proof of negligence or want of proper care, is thrown upon the plaintiff, (who is the bailor.) unless the defendant, in showing the loss, has proved his own fault or neglect. In such case the defendant is not bound to prove affirmatively that the thing was not lost by his neglect, as negligence will not be pre- sumed without proof The mere fact that the thing was injured or was lost by violence, theft, or accident, does not, in general, show that the bailee was in fault. If, therefore, a horse is hired and in- jured during the bailment, the owner, in order to sustain his action against the hirer, on account thereof, must not only show that the horse was injured, but the burthen of proving that the injury arose from the negligence of the hirer, also rests on him; unless indeed the nature of the injury shows of itself that the hirer was in fault.(l) The statute of this State provides,* that where any loan of goods and chattels shall be pretended to have been made to any person, with whom (or those claiming under him) possession shall have re- mained for the space of five years, such goods and chattels shall be deemed the property of the person having had such possession, unless a reservation of the right of such goods and chattels shall have been made to the lender, in writing, and such writing shall have been recorded within six months from the time of making such loan, in the recorder's office for the county where one or both of the parties shall then have resided. Sec. VI. WHERE articles are delivered to a person THAT HE MAY FOR A COMPENSATION, BESTOW WORK AND LABOR, OR CARE AND PAINS UPON AND ABOUT THEM. Every man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes. Every me- chanic who takes any materials to work up for another, in the course of his trade, as where a tailor receives cloth to be made into a coat, or a jeweler a jem to be set, he is bound to perform it in a (a) Stat. 422, $3. [1] The rule is different in relation to proof of the neRlig'ence of a carrier of goods for hire. When the carrier is sued for tlieir loss, the law presumes aijainst him in all cases, even of accident, until he sliows the loss or injury to have arisen from the enemies of the State, or the act of God. 7 Cow. Rep. 500, note [a]. 246 BAILMENT ARTICLES TO WORK UP, &LC. [Prt. 2, Titled^ work mnn-1 ike ninnncv.(2) If he performs the work unskillfuUy, he is responsible in diunages. (2) The following- case, decided by the supreme court of Ohio, on the circuit, and reported in Jf'right's Hep. 229, will show the rule by which workmen must be jjoveriicd. SOMKUBT V. TAPPAW. Case for unskillfuUy building- the chimneys of a house so that the plaintiff had to pull tiicm down and rebuild them. Plea not pfuilty. On the part of the plaintiff, testimony was ort'ered, that the defendant built a three story brick house for him, and was to do it in a workman-like manner. When finished, and the family had moved in, it was found that the chimneys would not carry smoke, and the family had to move out, the whole chimneys to be pulled down and rebuilt, at an actual expense of about if 200; besides loss of rent, at the rate of $500 a year, and vexation. When pulled down, the chimney flues were found very irregular, and varying- the size of the opening in different places. They were as large again at the throat, as they were five feet above, were two or three feet by twent)- inches at the throat, and contracted to six or eight inches by twenty at theceiling of the first story. They could not be remedied without pulling them down to the basement. They were pulled down and rebuilt, and then carried smoke well. The common rule for such rooms as these, was four feet openings for tiie fire places, and 12 by 16 inclies for flues. They could not carry smoke as first built. The plainlilf's damage was estimated at more than ,'♦3.50. On tlie part of the defendant, one witness testified that the plaintiff told him he was his own architect, and several workers in brick that they knew no rule of the trade for constructing chimney flues, and that thej' had known several as irregu- lar as these were, carry smoke well. To rebut this evidence, the architect of the building was sworn and testified (hat the plaintiff was not the architect, and tliat the avchitect in the usual coui-se of the trade had nothing to do with constructing or directing the size of the chimney flues. 'I'he rule of the trade was to preserve a uniformity in the size of the flues, after they were formed. Wright, J. to the jury. The plaintiff complains that the defendant agreed to construct a house for him in a workman-like manner, without any thing being ex- pressly stipulated to that effect. If he contract to build a chimney, the legal effect of the contract is that he shall employ in the work sufficient skill, and construct the chimney accoiding to the received rules of the art he professes to practice, in order to effect the desired end, which is to carry off" the smoke. That end may not always be reached, even in the ordinary method. Smoke left to itself will as- cend perpendicularly; but it is liable to be diverted by obstructions, and by cur- rents and eddies of air. It is claimed iiy the defendant, that masons have no rule of constructing chimney flues, and that these flues were of a kind which carried smoke in some places, and therefore the defendant was not liable, because the ■work was done according to the usage of the trade. It is submitted to you to say upon the evidence if it be true, that in tiie structure of chimneys, there is no rule of the trade or art. Is that true as to any calling? Can any trade be carried on without some rides for its government ? If so, what does the apprentice learn, or the master teach, as the resvard for the service of the apprentice? What is the difference between the master workman, and the mere tyro? I have said the me- chanic undertakes to bring to the perfiMmance of his work the requisite skill of his profession, and if he do not, and fail, he is liable for the consequences. In this case, the obligation was to build these ch mneys skillfully, according to the ap- proved usages of the trade. You will inquire, has he done so, or has he so negli- gently perfoiiTied the work, that it was useless for the purpose for which it was intended? If there has been a failure in the instance before you, owing to the negligence or want of skill of the defendant, he is responsil)le to the plaintiff for the damage incurred in altering the chimneys, the loss of rent, the discomfort he has suffered, and the expense of obtaining redress. If, on the other hand, you find this work done skillfully, or according to the §6.] BAILMENT ARTICLES TO AVORK UP, &C. 247 If the same identical materials or articles are to be returned in a new form by the workman, after the labor has been bestowed upon them, as where wheat is delivered to be ground, and the flour therefrom to be returned, the workman will be liable for any in- jury or loss, which may arise from his fault or neglect. If, how- ever, he takes that care of them, which a man of common pru- dence, capable of governing a family, takes of like articles, and they are, notwithstanding, injured, burnt, or lost, he will not be responsible. The workman is not liable for slight neglect, nor for a loss by inevitable accident or irresistible force. In such case, the owner must pay for the work already done or bestowed, unless by express agreement, or the uniform custom of any particular trade, no payment is to be made for any part of the work until the whole is completed and delivered.* But where the same identical materials or articles are not to be returned in a new form, in such case the materials or articles immediately upon their delivery be- come the property of the person to whom they are delivered, and he must therefore bear the loss, from whatever cause it may arise. As when wheat is delivered to a miller to be exchanged for flour, ground from such wheat as the miller may choose to grind for that purpose: now if the wheat delivered to the miller is injured or lost, no matter from what cause, still the miller will be bound to deliver the flour: for the wheat became his property the moment it was de- livered.(l) So if I deliver to you sheep or other property for any purpose, and you agree to return the sajne sheep to me at a future time, the ownership of the sheep does not pass to you; but if the agreement is that you shall return to me the same number of sheep of like qual- ity, in that case you become the owner of the sheep delivered, and must at all events perform your contract, whether the sheep deliv- ered by me die or live. (2) (a) Chit, on Con. 170. 3 Burr. 1592. 1 Taunt. 137. Story on Bailm. plaintiff's direction, he is not entitled to a verdict, but must bear the loss himself. The questions before you are to be decided solely upon the evidence, without reference to the situation or character of the parties, or to out of door rumors. "With tliese you have nothine; to do. See also Wright's Rep. 570, where the case is again reported. (1) See 2 Kent's Com. 589, where tlie case of Seymour v. Brown, 19 Johns. Rep. 41, is reviewed, and seems to be overruled by the case of Hard v. West, 7 Cow. Rep. 752. (2) 7 Cow. Rep. 752. As to cases where a mechanic finds a part of the mate- rials, and his employer a part, see Title 32, Sec. 1. 248 BAILMENT CARRIERS OF GOODS. [-P^- 2, Title 9, Sec. VII. OF THE RIGHTS, DUTIES, AND LIABILITIES OF THE CARRIERS OF GOODS FOR HIRE. This subject Avill be divided as follows: (-4.) Who is not a common carrier^ and the liability of a private carrier. (B) Who is a common carrier. (C) What are his duties. (D) What ai-e the risks for which he is liable. (E) When his risks commence and terminate. IF) Of the effect of notices given by common carriers., and special contracts limiting their liahilily for the loss of goods. (H) Of the lien of a carrier., for freight. (/) How the value of lost goods is to estimated. (A) Who is not a common carrier., and the liability of a private carrier. A person who does not exercise the business or occupation of carrying goods for hire from place to place is not deemed a com- mon carrier. Such a person is only bound to use ordinary dili- gence, iind a reasonable exercise of skill, and of course he is not responsible for any losses which might have happened under the circumstances to a man of common and ordinary prudence; unless he expressly by the terms of the contract took upon himself such risk. (5) Who is a common cai'rier. To bring a person within the description of a common carrier of goods, he must exercise it as a public employment; he must under- take to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, and not as an accidental occupation upon one occasion. Teamsters, draymen, and porters who engage to carry goods for hire as a common employment from place to place, or from one part of a town or city to another; the owners and masters of steam- boats, river boats, canal boats, and others engaged in the transpor- tation of goods generally for hire, come within the description of, and are liable as, common carriers. A person who receives and forwards goods, taking upon himself the expenses of transportation for which he receives a compensation from the owners, but has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not §7,(A),(B),(C),(D).] BAILMENT CARRIERS OF GOODS. 249 deemed a common carrier, but a mere warehouseman and agent.(l) In order to charge a person as a common carrier, it is not neces- sary that a specified sum should be agreed on for the hire; for if none is agreed on, he is entitled to a reasonable compensation. Where several persons are engaged as partners in the business of common carriers, and by contract between them, one finds horses and drivers for certain distances, and another supplies them for the remaining distance, they are, notwithstanding, to be treated as partners, and jointly responsible throughout the whole course of the rout. The same principle applies to different partners in a coach office, who are owners or partners in different coaches employed at the same office on the common business, though they have not a common interest in each coach. All of them will be held respon- sible for any contract made by the keeper of, or agent at, the stage office. Common carriers are not only responsible for their own acts, but also for those of their servants and other persons in their employ- ment. (C) What are the duties of a common carrier. He must take the utmost care of the goods from the time of re- ceiving them; obey the directions of the owner in respect to them; carry them safely to the proper place of destination, and make a right delivery of them there, according to the usage of trade, or the course of business. If the carriage is by water, he is bound to pro- vide a ship or canal boat that is tight and strong, suitably equipped, with a proper crew; to proceed without deviation to the proper port; to expose the goods to no improper hazards; and to guard against all injuries incident to the property, by reasonable care in preserving the goods from the effects of storms, rain, bad air, leak- ages and thefts. When necessary expenses are incurred by a carrier about the preservation of the goods from extraordinary peril, not properly belonging to the carrier, he is entitled to re-payment. Thus, if a sudden flood or storm should do injury to the goods, and require some immediate expense for their preservation, the carrier would be bound to incur it, and would be entitled to reimbursement. When the expenses arise from an injury for which, in case of loss, the carrier would be responsible for the goods, he cannot recover back from the owner of the goods such expenses. (J)) What are the risks for which a common carrier is liable. The law books abound with strong cases of recovery against common carriers when there was no fault on their part. Courts have adopted a safe and salutary rule upon this subject, without bending to popular sympathies, or yielding to the hardships ot a particular case. Common carriers have an opportunity in conso- (1) As to the responsibility of Warehousemen, see page 262. 32 250 BAILMENT CAURIKUS OF GOODS. [P/l. 2, Title 9, quence of their remote situation from the owners of goods, to ruin those wlio confide in tliem, and that too in so secret a manner that the fraud could not l)e discovered. A general rule must necessarily be established in relation to their liabilities, and that rule niust be a stern, rigid, and simple one, to protect the public, and prevent the necessity of going into circumstances impossible to be unrav- eled. The rule, therefore, is well established, that as soon as goods are delivered to a common carrier, he becomes an insurer of their safety, and is answerable for every loss or injury which does not arise from the act of God, or public enemies.* If armed persons enter the steamboat, schooner, or canal boat, and plunder it of the goods; or they be stolen; or be burnt, or taken by robbers, without the fault of the common carrier, and where not a shadow of neglect is imputable to him, still he is liable to the owner for their value. Hard as this rule may appear, if it were not firmly enforced by courts, it would be easy for a carrier to contrive by means not to be detected, to be robbed of his goods in order to share the spoil. If lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, the owner would be unable to prove ei- ther of these causes of loss. His witnesses would be the carrier's ser- vants, and they would willingly excuse their masters and themselves. llobbers, thieves, mobs, and rioters, do not come within the de- nomination of PUBLIC ENEMIES. By enemics, is understood those public enemies with whom the nation is at open war. Common carriers are not liable for delay, injury, or loss occasioned by ad- verse winds, the founderous situation of roads, or a breach in the canal. But if occasioned by their taking a greater quantity of commodities than they had the means of transporting, or by unskill- ful navigation of their vessel, or any other circumstances not the immediate act of God, or of the enemies of the State, then they are chargeable,'' The ACT OF Gorj denotes natural accidents; such as lightnings^ earthquakes, and tempests, and not accidents arising from the neg- ligence of man — the expression means something in opposition to the act of man. If a ship on a lake is forced upon a rock or the shore, by an adverse w^ind, under prudent and careful management, and the goods lost, this would be deemed the act of God. It has already been said that the rights, risks, and liabilities of the parties may be altered or changed by the express agreement of the jiarties. It is usual to accompany the shipment of goods with a bill of lading, in which is in general inserted an acknowledgment by the carrier of having received the goods in good condition, and contains the contract between the carrier and the person who s-hip- f)ed the goods. This contract being in writing, cannot be en- arged, explained, or changed, by verbal ])roof of what the under- standing or intention of the parties was, before or at the time of making the bill of lading, though verbal evidence may be received to show the common usage of trade under the words or terms of the bill of lading.'^ So the carrier may show, notwithstanding the (a) Wright's Rep. 193. 1 Wil. Rep. 149. (rt Wright's Rep. 195. (b)4HBr. 4- J. 291. §7,(D),(E).] BAILMENT CARRIERS OF GOODS. 251 bill of lading, that the goods were not in good condition, or the damage complained of existed at the time he received them.^ Bills of lading on Lake Erie generally specify that the goods shall be delivered in good condition, "the danger of the Lake and waves only excepted." Bills of lading on the Ohio riv^er, except 'Hhe dangers of the river and unavoidable accidents," It has been said, that by "perils or dangers of the sea," (lake or river.) are only meant such accidents as happen by the act of God, and public enemies. When merchandise received by a carrier to be delivered in good order, the "dangers of the river excepted," gets w^et by accident, the carrier is not liable for the damage, if it arose from the dangers of the river and not from his neglect. But if in such case the goods w'ould be less injured by being dried, and no exertion is made to dry them, the carrier is liable for the dam- age. '' If the situation of a rock, shallow, or snag is generally known, and the boat is not forced upon it by adverse winds and tempests, the loss' must be imputed to the fauft of the master, and not to the dangers of the lake or river. But if the boat is forced upon such rock, shallow, or snag, or upon the shore, or into collision with an- other boat, by adverse winds or tempests, or if the shallow or snag is not generally known, or is of recent formation, or existence: in all these cases the loss is to be attributed to the dangers of the lake or river. If an injury or loss arise from another boat being care- lessly or designedly run upon the boat of the carriei', the carrier is liable to the owner of the goods, and must look for his remedy to the person who carelessly or wantonly injured the goods by the collision.*^ Goods thrown overboard to save the vessel in a tempest from foundering, and to preserve the lives of the crew, is a loss by the act of God, though accomplished by the immediate agency of man.(l) If a carrier deviate from the usual course of the navi- gation, and a loss ensue, he will not be excused w^hile out of the course, even for a loss resulting from the act of God or public enemies.'' So if there be two ways known to the navigation, and one more perilous than the other, he takes the most perilous at his own risk. (E) As to the comme7icement and termination of the risk of com~ mon carriers. To render a carrier responsible, there must be an actual delivery to him, or to his servants, or to some other person authorized to act (a) 4 Oliio Rep. 346, Wriglit's Rep. 240. (c) Wright's Rep. 741. (b) 1 McBride's Bep. 81. - {&) Wright's Rep. 193; 1 Wil. Rep. 149. (1) In such case, ship, cargo, and fi-eiglit, which are saved, are compelled to contribute according- to their value to repay the common loss. If, however, goorls are shipped wilii an undcrstanclin,!^ that they are to be stowed on deck, and are necessarily tlirown overboard in a storm, the carrier is exonerated, and the own- er is not entitled to contribution for the loss, filory on Bailment, 339. 371, 252 BArLMEXT CARRIKRS OF GOODS. [^Plt. 2, TUk 9, in his hehnlf. If, according to the usage of business, it be a suffi- cient deHvery to leave the goods on the dock, by or near the car- rier's boat, (which is the case on the canals in the state of New York"); yet to render the delivery in such case complete, there must be notice given to the carrier, that the goods arc there. The lia- bility of the carrier for the goods, commences from the time he ac- cepts the goods, and the us;ige of the business may determine in what such acceptance consists. There are, in general, warehouses erected at the place where goods are to be shipped, and in which the goods are placed before transportation. A warehouseman, who receives goods on deposit for hire, is only liable for such injuries and losses as arise from his fault or neglect. If the goods are taken or lost by fire, robbery, or other accident, over which he had no control, and which did not arise from his carelessness, he will not be responsible. He is only bound to take such care, and use such diligence as men of ordinary prudence exercise under like circumstances.'' But a warehouseman is sometimes the carrier of the goods which he receives. In such case, if the deposit of the goods in the ware- house is made to facilitate the carriage by the warehouseman, and is subordinate to the transportation, he then receives the goods as the carrier, and is responsible as such. On the other hand, if a per- son is at the same time a common carrier, and forwarding merchant, and he receives goods into his warehouse to be forwarded accord- ing to the future orders of the owners, he is only liable as a ware- houseman. In all such cases, the material point to ascertain is, whether the goods were received by the party in his character of warehouseman or common carrier. As soon as goods have arrived at their proper place of destina- tion, and are deposited there, and no further duty remains to be done by the carrier, his responsibility as such ceases. If a carrier between Butlalo and Dayton receives goods to be carried from Buffalo to 'Da}ton, and thence to be forwarded by a distinct con- veyance to Cincinnati, as soon as he arrives with tlie goods at Day- ton, and deposits them in his warehouse, his responsibility as carrier then ceases, for that is the end of his duty as such. He then be- comes, as to the goods, a mere warehouseman, undertaking for their further transportation. But he would be chargeable in such case as a common carrier, for any loss during a deposit in any ware- house between BufTalo and Dayton. So long as the carrier retains the possession of the goods as such, or is to perform any further duty, either by custom or contract as carrier, he is responsible for the safety of the goods, and whether he is to make a personal delivery of the goods to the owner, or de- posit them in a warehouse or other place where the owner resides, will depend upon the contract, or the local custom or usage of trade. If the carrier is induced by the fraud or deceit of a stran- ger to deliver the goods to a wrong person, this will not exonerate (a) 6 Cowcn'g Rpp. 7o". (b) 7 Cow. Rop. 497. §7, (E),(F),(H).] BAILMENT CAP-RFERS OF GOODS. 253 the carrier from liability to the owner, who may sue in an action of trover for their value.'' Whenever the carrier imdertakes to carry the goods, he cannot exempt himself from responsibility by transferring the goods to an- other carrier, or by sending them by another conveyance. His contract is deemed a contract for personal cafe and diligence by himself or his own servants. It is also, as has been already stated, the duty of the carrier to employ a vehicle suitable for the trans- portation, and if by water to prepare a boat reasonably strong, and equipped for the voyage. (F) Of the nature and effect of notices given by common carriers^ and special contracts^ limiting their liability for the loss of goods. In the case of Jones v. Yoorhees^ it is said by the court: '•'•The rule is now understood to be settled in England, that neither a no- tice brought home to the owner of the goods, nor a special agree- ment, however solemn the form in which it may be made, is per- mitted to restrict the common law liability of the carrier, either by land or water. Nothing excuses him from the pei-formance of his. contract, but the act of God^ or the acts of the public enemies of the country.'"' "It is, however, sufficient for us to say, in the present case, that common carriers cannot limit their responsibility by no- tice brought home to the oiviier., for that is the point raised on the special verdict; but any substantial distinction between a notice brought home, and an express special contract to restrict rcsponsi^ bility, is not easily perceived. (H) Of the lien of the carrier for freight. The carrier is entitled to a lien on the goods for his hire or freight, and is not bound to deliver them until he receives it, unless he has entered into some special contract, by which it is waved. The consignor or person who sends the goods is ordinarily bound to (a) \r, Rii(?. C. I,. T?op. 47. (h) 1 Wilcox's Uep. 145. 254 BAILMKNT CARRILRS OF GOODS. [^Pfl. 2^ Title 9^ pay for the hire, or freight; but \vhcne\er the person to whom the goods nre sent, who is called the consignee, engages to pay it. he may also be responsible. It is usual for the bill of lading, (which is the receipt of the carrier for the goods, and the contract for their transportation.) to s.tate that the goods are to be delivered to the consignee, or to his assigns, he or they paying freight, in which case the consignee and his assigns, by accepting the goods, become bound to ]iay the freight. And the fact that the consignor is also liable to pay the freight, will not in such case make any diilerence. Jf coods contracted to be carried to a particular place and safely delivered, were either in fact negligently lost, or safely conveyed and deliv- ered to a wrong person, though by mistake, or if any other act was done rendering a delivery of them impracticable, the carrier is en- titled to no freight.* If the carrier demands nn unreasonable amount for freight, the owner of the goods should tender what is right, and may then sue the carrier for the value of the goods, before a justice, if it does not exceed one hundred dollars. The lien of the carrier ceases after the tender. There is no action or remedy before a justice, that will enable the owner to obtain possession of goods wrongfully ta- ken or detained by a carrier or other person. The owner can, however, in such case, obtain possession of the property by suing out from the court of common pleas a writ of replevin. (1) (a) 6 Bar. and J. 400; Cliitty's Con. 152, notes (3d ed.) (1) Difficulties often arise between the owner and carrier when the goods have been injured, or their transportation unnecessarily delayed: the owner wislies the d;im:ig-es to be deducted from the freig-ht, and the carrier refuses to deliver the goods unless tiie wliole freiglit is paid. In some cases, and especially where the damage or delay has not arisen from the negligence of the carrier who last re- ceived the goods, the owner would not pei-h:ips have a right to deduct the damage from tile fi-diglit. But wlien tlie carrier who delivers the goods has himself been guilty of the negligence, justice and public policy seem to require the adoption of the principle, tliat the owner shall be entitled to tlie possession of the goods, en- tirely discliarged from the lien for freigiit, upon his tendering to the carrier the balance of tlie freiglu, if any, after a reasonable deduction for the damages sus- tained by a loss, injury, or delay. Tiiis rule gives tiie owner an opportunity to obtain immediate possession of the goods by a writ of replevin, and he would alwajs, with a view to prevent the faihu-e of his action, tender a sufficient amount to discliarge tlie lien. See 1 Camp. Rep. 68. Chitty's Con. 277. §7(H),(I),8,(A).] BAILMKNT CARRIERS OF PASSENGERS. 255 (1) How the value of lost goods is to be estimated. The goods lost by the carrier must be estimated according to their value at the place where they were to be delivered by him, and the owner would be entitled in such case, to recover the value so estimated, with interest, after deducting the amount of the freight unpaid. Sec. VIII. OF THE RIGHTS, DUTIES, AND LIABILITIES OF CARRIERS OF passengers; and HEREIN, (A) Their duties in the commencement of the journey. (B) Their duties on the progress of the journey. (C) The termination of the journey. (Z)) Liabilities of passenger carriers. (E) The rights of j^asscnger carriers. {A) Their duties in the coiamcncement oj^ the journey. The first and most general obligation on their part is to carry passengers whenever they offer themselves, and are ready to pay for their transportation. This results from their setting themselves up, like innkeepers, farriers, and other carriers, for common public employment. They are no more at liberty to refuse a passenger, if they have sufficient room and accommodation, than an innkeeper has a guest. If several persons have contracted to go in company inside, the carriers have no right to separate them into difierent parts of the coach outside and inside. In the next place they are bound to provide coaches reasonably strong and sufficient for the journey, with suitable harness, trap- pings, and equipments; and to make a proper examination thereof previous to each journey. In the next ])lace they are bound to provide careful drivci's of reasonable skill and good habits lor the jouincy; and to employ horses, which are steady, and not vicious, or likely to endanger the safety of the passengers. In the pithy language of an eminent Judge, it may be said, that " the coachman must have competent skill; he must be well acquainted with the road he imdertakes to drive; he must be provided with steady horses, acoachand harness of sufficient strength and properly made, and also with lights by niglit. If there is the least lailure in any of these things, the 256 BAILMENT CARRIERS OF PASSENGERS, [P/'^. 2, T?7/t' 9, duty of the coach-proprietors is not fulfilled, and they arc responsi- ble for any injury or damage, that happens."' In the next j^lace they are bound not to overload the coach either with passengers or luggnge; :ind to take cai'e, tiiat the weight is suitably adjusted, so tliat the coach is not top-lieavy and made liable to overset. In the next place they are bound to receive and to take care of the usual luggage, which it is customary to allow every passenger to carry for the journey. And in all these cases they are not only bound for their own acts, but for the acts of their servants and agents in their employ, and also, in cases of partnership, for the acts of their partners. {B) Their duties on the progress of the journey. Passenger carriers are bound to stop at the usual places, and allow the usual intervals for refreshment of the passengers; and they cannot at their mere caprice vary or annul these accommoda- tions; for every passenger is understood to contract for the usual reasonal)le accommodations. They are bound to make use of all the ordinary precautions for the safety of passengers on the road. This involves a considera- tion of the duties of the coachman in driving on the road. If he is guilty of any rashness, negligence, or misconduct, or is unskillful, or deviates from the acknowledged custom of the road, the pro- prietors will be responsible for any injury resulting from his acts.(l) Tlius, if the driver drives with reins so loose that he can- not govern his horses, the proprietors of the coach will be ansv.er- able. So if there is danger in a part of the road, or in a partic- ular passage, and he omits to give due w^arning to the passen- gers. So if he takes the wrong side of the road, and an accident happens from want of proper room. So if by any incaution he comes in collision with another carriage. In short, he must in all cases exercise a sound and reasonable discretion in traveling on the road, to avoid dangers and difficulties, and if he omits it, his princi- pals are liable. And the liability of the coach proprietors will be the same, although the injury to the pnssenger is caused by his own act, as by leaping from the coach, if there is real danger, and it arises from the careless conduct of the driver.(2) (1) See statutes of this State in relation to the duties and liabilities of stage pro- prietors, and stage drivers, Slut- 864. (2) There are in England, tliree customary rules or directions for driving; first, that in meeting, each parly shuU bear or keep to tlie left. The rule in America is the reverse, that each party shall bear or keep to tlie riglit. Secondly, that in pass- ing, the foremost person bearing to the left, the other siiall pass cmi to the off side. Thirdly, that in crossing, the driver shall bear to the left hand and pass beliind the other carriage. But the rule in England is not inflexible, that the driver sliall, in all cases pass another carriage on the offside. He may, if the street or road is very §8, (B),(C),(D).] BAILMENT CARRIERS OF PASSENGERS. 257 (C) The termiiuxtibn of the journeij. In all cases the coach proprietors are bound to carry the passen- gers to the end of the journey, and to put them down at the usual place of stopping; and if that is an inn yard, it is not sufficient to put them down on the outside of the gateway of the inn. If they agree to take a passenger to a particular place, this also becomes obligatory on thein. And if the custom of the coach is to carry the passengers to their own houses or lodgings in a jDarticular place, that must be conformed to. (D) As to the Uabilitics of passenger carriers. These naturally flow from their duties. As they are not, like common carriers of goods, insurei-s against all injuries except by the act of God, or public enemies, the inquiry is^ naturally present- ed. What is the nature and extent of their responsibility? It is cer- tain that their undertaking is not ;ui undertaking absolutely to con- vey safely. They are bound only to t/ae care and. diligence in the performance of their duty. The passenger carrier binds himself to carry safely those whom he takes into his coach, as far as human care and foresight ivill go; that is, for the utmost care and diligence of very cautious persons. But passenger carriers, not being insurers, are not responsible for accidents, where all reasonable skill and diligence has been em- ployed. When every thing has been done which human prudence can suggest, accidents may happen. The lights may in a dark night be obscured by fog; the horses may be frightened; the driver may be deceived by the sudden alteration of objects on the road; the coach may be upset accidentally by striking another vehicle or meeting with an unexpected obstruction: in all these and the like cases, if there is no negligence, the coach proprietors are exonerated. A common carrier of passengers and their baggage is responsible for the baggage if lost, although no distinct price be paid for its transportation ;'^ and although they give actual notice to a traveler that his baggage is at his own risk.'' Where, however, the baggage consists of an ordinary traveling trunk, in which there is a large sum of money., such money is not considered as included under the term baggage.^ so as to render the carrier responsible for it. It seems, however, he would be liable for money in the trunk, not ex- (a) 9 Wend. 85; 1 Wliea. Sehvyn, :301, «. 1. (b) 1 Wilcox's Rep. 145. broatl, go on llie iicnr side. So if tliere is no otlicr carriag-e on llie road, wliose passag'e may be intt'rnipted, tlie dvivci" is not hound to keep the left side of the road accordint^ to the rule of the road. In sucli cases, he niaj'' go on either side of the road, as lie pleases. And if the driver is on liie wrong side of tlie road, the carrier is not answerable for any accident, unless there is some negligence on the part of the driver. .3.3 258 BA1LME>'T CARRIERS OF PASSENGERS. [Pri. 2, Title ^, ceeding an amount ordinarily carried for traveling expenses •,'(!) and for a watch therein, the trunk being considered a proper place to carry a watcii.'' (E) The j-igJifs of passenger carriei's. Aa they are under obligations to carry passengers, and cannot properly refuse them, when they have acconmiodations, so on the other hand they are entitled to be secure of their reward or compen- sation. They have, therefore, a right to demand and to receive their fare at the time when the passenger engages his seat; and if he refuses, they may fill up the place with other passengers, who are ready to make the proper deposit. The passenger carrier also has a lien upon the baggage of the passenger for his fare or passage money; but not on the person of the passenger, or the clothes he has on. In the preceding remarks our attention has been principally drawn to the conduct of passenger carriers on land. But there ai'e some rules of an analogous nature, which have been adopted for the regulation and government of passenger anh carrier vessels in inland navigation, as well as upon the ocean, which deserve notice, as they may furnish grounds of responsibility or excuse for lossey, which have arisen in tlie course of their voyages, from the accidents, or collisions, or rivalries of navigation. Thus, in Ohio, various positive regulations have been adopted by the legislature, in regard to tbe conduct of canal boats; and if the master of any boat deviates from them, and any injury occurs, he and the owners will not only be liable to the statute penalties, but they will also be bound to make good all losses and injuries sus- tained thereby. It seems to be a general regulation, that freight boats shall' afford every facility to the passage of packet or pas- senger boats, as well through the locks as every where else on the canal. Therefore, if a packet boat arrives at a lock while a freight boat is waiting for it to be emptied, the freight boat is bound to yield the first passage into the lock to the packet boat. And if, by any undue resistance on the part of the freight boat, an in- jury occurs, it must be borne by the master and owners of the latter. As to the collision of boats: In the first place it may happen without blame being imputed to either party; as where the loss is occasioned by a storm. In that case the loss must be borne by the party on whom it happens to light; the other not being res- ponsible to him in any degree. Secondly, a misibrtune of this kind may arise, M'here both parties are to blame; where there has been a want of due diligence or of skill on both sides. In such a (a) 9 Wend. 85; 1 Wliea. Sclwyn 301, n. I. (b) 1 Wilcox's Rep. 145. (1) As to tlie loss of bagg-age wlien notice has been given, see page 253. §8, (E), 9.] BAILMENT INNKEEPERS. 259 case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only; and then the rule is, that the sufferer must bear his own bur- then. Lastly, it may have been the fault of the ship which ran. down the other; and in this case the injured party would be enti- tled to an entire compensation from the other. Where there has been some fault or neglect; but on which side the blame lies is inscrutable, or left by the evidence in a state of uncer- tainty, the rule is to apportion the loss betv.^een the two vessels. In all cases of collision the essential question is, whether proper measures of precaution are taken by the vessel, wiiich has unfortu- nately run down the other. This is partly a question of nautical usage, and partly a question of nautical skill. If all the usual and customary precautions are taken, then it is treated as an accident, and the vessel is exonerated. If otherwise, then the offending ves- sel and its ov/ners are deemed responsible. Some rules, however, which probably had their origin in the customs of navigation, are now adopted as positive rules of law. Thus, the law imposes upon the vessel, having the wind free, the obligation of taking proper measures to get out of the way of a vessel, that is close hauled, and of showing that it has done so; otherwise the owners will be res- ponsible for any loss which ensues. Therefore, a vessel sailing icith the wind must give way to one sailing by the wind; and the vessel sailing by the wind is not obliged to alter her course. Another rule is, that the master of a vessel entering a port or river, where other vessels are lying at anchor, is bound to make use of all proper checks to stop the head way of his vessel in order to prevent acci- dents; and if from want of such precautions a loss ensues, he and his owners will be responsible. Another rule is, that when vessels are crossing eacli other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack is to per- severe in her course, while that on the larboard is to bear up, or keep more awa.y before the wind. And in respect to steamboats, as th^y do not receive their impetus from sails, but from steam, they are capable of being kept under better command; and therefore it seems, from their greater power, they ought always to give way in favor of a vessel using sails only. Sec. IX., — OF THE rights, duties, and liabilities oj' innkeepers. Innkeepers are bound to take, not ordinary care, but uncommon care of the goods and baggage of their guests; and they are respon- sible for the acts of their servants and domestics, as well as for the acts of other guests. If, therefore, the goods or baggage of his guest are damaged in his inn, or are stolen from it by his servants or domestics, or by another stranger guest, he is bound to make res- titution. And the innkeeper cannot exonerate himself from this res)>onsibility by a refusal to take any cnre of the goods, because 260 BAILMENT INNKIOEPKltS. [Pi't. 2^ Title % there are suspected persons in his liou.se, for whose conduct he can- not be answerable, for the law will not permit him thus to escape from his proper iluty. It iuiLi;ht iiuleed bo otherwise, if he refused achnit- tance to a traveler, because he really had no room fjr him, and the traveler nevertheless should insist upon enterinsr and placing his baggage in a chamber without the imikeeper's consent. But an innkeeper is not, if he has suitable room, at liberty to refuse to re- ceive a guest, who is ready and able to pay him a suitable compen- sation. On the contrary he is bound to receive him, and if upon false pretences he refuses, he is liable to an action. It is not necessary to prove, that the goods have been lost by the negligence of the innkeeper; for it is his duty to provide honest servants and honest inmates, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. Nor is it necessary, that the goods should be in his special keeping; but it is generally sufficient, that they are in the inn. Rigorous as this rule may seem, and hard as it actually may be in one or two par- ticular instances, it is founded on the great principle of public utili- ty, to which all private considerations ought to yield. For travel- ers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly, on the good faith of innholders, who have frequent opportunities of associating with rullians and pilferers, while the injured guost would seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them. But innkeepers are not responsible to the same extent as common carriers. The loss of the goods, while at an inn, will be presump- tive evidence of negligence on the part of the innkeeper or of his do- mestics. But he may, if he can, repel this presumption, and show, that there has been no negligenjce whatsoever; or, that the loss is attributable to the proper negligence of the guest, or that it has been occasioned by inevitable casualty, or by superior force. Thus, al- though a common carrier is liable for all loses occasioned by an arm- ed mob (not being jjublic enemies.) an innkeeper would not be liable for such a loss; nor would he be liable (it should seem) for a loss by robbery and burglary by persons from without the inn. And the innkeeper will be exonerated, also, by showing, that the guest has been robbed by his own servant, or by one, who came to the inn as a companion of the guest. But it will be no excuse for the innkeeper in case of a loss by theft, that he was sick or insane, or absent from home at the time: for he is bound, in such cases, to provide faithful domestics and agents. Having thus seen, what is the general responsibility imposed upon innkeepers by law, it may be proper to consider; 1st, who are deemed innker-pors in the sense of that law^; 2d, what are their general rights and duties; 3d, w^ho are to be deemed properly guests; 4th, in respect to what goods, and under what circumstances, the liability of innkeepers attaches; 5th*, and lastly, under what circum- stances they are exonerated b.y operation of law, or by the acts of the parties. §9.] BAILMENT INNKEEPERS. 261 1st, Who are deemed innkeepers. An innkeeper may be defined to be the keeper of a common inn for the lodging and entertain- ment of travelers nnd passengers, their horses and attendants, for a reasonable compensation. It must be a common hin, that is, an inn kept for travelers generally, and not merely for a short season of the year, and for select persons, who are lodgers. But it is not necessary that the party should put up a sign as keeper of an inn. It is sufficient, if in fact he keeps one. In a recent case it was said, that " The true definition of an inn is a house where the traveler is furnished with every thing which he has occasion for whilst on his way."' But the keeper of a mere coffee-house is not deemed an innkeeper. And a person who keeps a mere private boarding house, or lodging house, is in no just sense an inkeeper. 2d, As to the rights and duties of innkeepers. An innkeeper is bound to take in all travelers and wayfaring persons, and to enter- tain them, if he can accommodate them, for a reasonable compen- sation; and he must guard their goods with proper diligence. But he is not bound by law to furnish his guests with rooms to show their goods, but only witii convenient lodging rooms and lodging. And the law invests him wifh some peculiar privileges: for he has a lien upon the goods, and also, as it should seem, upon the person of his guest, for his compensation. But the horse of a guest can be detained only for his ov^n meal, and not for the meal and expenses of the guest. 3d, Who are to be deemed guests. As inns are instituted for passengers and wayfaring men, a neighbor or friend, who is no traveler, but comes to the inn at the request of the innkeeper, and lodges there, is not deemed a guest. But where a traveler comes to the inn, and is accepted, he i>ecomes instantly a guest. And it was held by three Judges against Lord Holt, that if a trav'eler leaves his horse at an inn, and lodges elsewhere, he is to be deemed a guest. But not if he leaves goods, for which the innkeeper re- ceives no compensation. And where a person came to an inn with a hamper of hats, and went away, and left them there for two days, and in his absence they were stolen, it was held, that he was not to be deemed a guest. The lengtli of time tliat a man is at an inn, makes no difference; whether he stays a week, or a month, or longer; so always, that he retains his character as a traveler.' But if a person comes upon a special contract to board, and sojourn at an inn, he is not in the sense of the law a guest; but a boarder. 4th, As to their liability. Innkeepers are liable only for tho goods which are brought within the inn. If, therefore, an inn- keeper at the request of his guest sends his horse to pasture, and the horse is stolen, the innkeeper is not, as such, liable for the loss. But if theguest does not request it, but the innkeeper does it of his own accord, he is liable ibr the loss. However, it has l)een said th;it lliis rule requires some qualifications; lor if it is the common custom of the coimtry, (as it is, in the summer season, in some parts of America.) to put the horse in such a case to pastui*e, the implied consent of thf ow-ner may be fairly presumed, if he 262 BAILMENT INNKEEPERS. [Prt. 2, 7V^ 9, knows of the custom. And the common usage of the country must have great weight in all such cases. in ihe country towns in America, it is very common to leave carriages under open sheds all night at inns; and also to leave the stable doors o})en or unlocked. Under such circumstances, if a horse or carriage should he stolen, it woulil deserve consideration, how far the innkeeper would be lia- ble, as the traveler might be presumed to consent to the ordinary custom. A delivery of the goods into the custotty of the innkeeper is not necessary to charge him with them: for although the guest doth not deliver them, nr acquaint the innkeeper with tliem, still the latter is bound to pay for them, if they are stolen, or carried away; even though the person who stole them or carried them away is un- known. Nor is it any excuse for the innkeeper, that he delivered to the guest the key of the chamber in which he is lodged, and that the guest left the chamber door open. But if the in keeper re- quires of the guest, that he should put his goods into a particular chamber under lock and key, and that then lie will warrant their safety, and otherw^ise not; and the guest, notwithstanding, leaves tliem in an outer court, where they are taken away, the innkeeper will be discharged. And although an innkeeper rehises to take charge of goods for a party until another day; yet, if he admits him as a guest into his inn for temporary refreshment, and the goods are stolen, while he is there, the innkeeper will he responsible for the loss. If, indeed, the innkeeper had received the goods, and the party had gone away, and afterwards the loss had occurred, the innkeeper would have been liable only as a bailee or depositary; and if he had refused to receive the party as a guest he would not have been liable at all. Where the goods are delivered at the usual place for such goods at the inn, the innkeeper is chargeable with them, although not strictly within the inn; as if wheat in a sleigh is put into the outer house appurtenant to the inn, and used for such purposes, and after- wards is stolen, the innkeeper is liable for the loss. Ahhough the general language of -the Writ in the Register is, that the innkeeper is liable ibr ihe goods and chatteh of the guest, which would seem not to extend to deeds, obligations and choses in action; yet the latter are held moveables within the custom to bind the innkeeper. 13ut the hmkecper is liable only for the safe custodv of personal property of his guest. He is not responsible for any tort or injury done by his servants or others to the person of his guest, without his own co-operation or consent. 5th. What circumstances will exonerate the innkeeper. By the common law, as laid down in Calye's case, (8 Rep. 32,) an innkeep- er is not chargeable, unless there is some default in him, or in his servants, in the well and safe keeping and custody of his guest's goods and chattels within his common inn; but he is bound to keep them safe without any stealing or purloining. This doctrine, how^- ever, is to be understood with this qualification, that the loss will be deemed prima facie evidence of negligence; and that the inn- §§.] BAILMENT INNKEEPERS. 26^ keeper cannot exonerate hiinsclt'but by positive proof, that the loss was not by means of any person, for whom he is responsible. The innkeeper, however, may be exonerated in divers other ways; as, lor example, by showing that the guest has taken upon himself exclusively the custody of his own goods, or has, by his ov^'n neglect, exposed them to the peril. Thus, where a traveler had some boxes of jewelry, and desired a room to himself for the purpose of opening and showing it to customers; and he had the room assigned to him, and the key delivered to him, with directions about locking the door; and he used the room accordingly, and unpacked his jewelry, and he afterwards went away, and left the room for some hours, leaving the key in the lock on the outside of the door, and some of his boxes of jewelry were stolen, it was held that the innkeeper was not liable, and that the guest, by accepting the key of the room under the circumstances, had superseded the liability of the innkeeper to take care of the goods. So, where a guest at an inn deposits his goods in a room, and makes use of it as a warehouse for them, having the exclusive possession of it, he is understood to take upon himself the exclusive charge of his own goods. The same principle will apply, where a guest at an inn, instead of confiding his goods to the innkeeper, of choice commits them exclusively to the custody of another person, living at the inn. But if the habit of the servants at an inn is to place the guests' goods in their bed-rooms; and a guest should request his to be car- ried into the comnTOn commercial room, to which travelers in gen- eral resort, and they are there stolen, the innkeeper will neverthe- less be held responsible for the loss, unless the innkeeper has given notice to the guest that he will not be responsible, unless the goods are put into the bed-room. The mere exercise of a choice by the guest, not objected to, though for his own convenience, if he does not acquire an exclusive possession thereby, will not discharge the innkeeper from his general responsibility. Innkeepers are responsible for the loss of goods, only when they have been received by them in that character. If they hav© be- come bailees generally, they are then liable only according to the nature of the particular bailment or contract. TITLE X. BANKS. A SUIT for or ajjalnst, a hank should he hroiii;;ht in its corpoi-ate name, thus: '••The O'lio Life Insurance and Trust Company.'''' When suit is hrought to recover money due from a hank, upon notes or hills issued, and for a sum made cognizahle before a jus- tice, judgment must he rendered for the amount of the hills, with interest u])on them from the time they were presented for payment, or irom the time the bank ceased ;ind refused to redeem its hills with s])ecie.* The olRcer serving the execution, must go to the banking house and demand payment of the amount of the judgment, interest and costs; and if payment he not immediately made, the olFicer must levy upon the bank notes, money or other chattels which he may find in tlie banking house, or elsewhere, the property of the judg- ment debtor, and proceed thereon, as in other cases.'' If the mo- ney is not made by the first execution, the justice, on request, must deliver to the plaintiff' or his agent a certified transcript of his doc- ket, so that the creditor may proceed against thebank in the court of common pleas.*^ A hank may institute a joint suit agninst the drawers and indor- sers of notes, bills and bonds, and the defendants may each make a separate defence; if a bank, in such case, institutes separate suits, it can recover no costs, hut each party pays his own costs.** The bills of the bank must be received in payment of the judgment, if tendered on the execution, and the suit was brought by the bank, or for its use.'* Banks must have sums counted, or sufficient servants to count them, so that a demnnd of ordinary magnitude may he paid within the banking hours of the day; and a bank cannot, at its option, pay out in small pieces when it has large on hand. If the bank thus creates an unreasonable delay, it amounts to a refusal of payment.^ When a bank charter declares that it shall not take more than six per cent interest upon its loans, a contract for a greater rate of interest is void, and the bank shall lose both interest and principal.*" (a) Stat. 147, $43; and (c) Itl. 153, $62. (e) 8 Cow. Rrp. 88. see Stat. 129, $13. (d; Id. 149, $51. (Ii) 8 Ohio Rep. 280. (b) Id. 147, $45. TITLE XL BASTARDY. The statute, entitled an act for the maintenance and support of illegitimate children,* provides, that on complaint made to any jus- tice of the peace in this State, by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child, which, if boi'n alive, may be a bastard, accusing on oath, or affirmation, any person of Ijeing the father of the child, the justice shall take such accusation in writing,(l) and thereupon issue his warrant, directed to the sheriff, coroner, or con- stable, of any county of the State, commanding him forthwith to bring such accused person before said justice, to answer to such complaint;(2) and on the return of such warrant, the justice, in the (a) Stat. 155. (1) The form of the affidavit may be as followsj The State of Ohio, county, ss: Personally appeared before me, G H , a justice of the peace in and for said county, A B , an unmarried woman, resident within said county, and made complaint under oath, that [on the day of , she was delivered of a bastard child; or say, if the fact be so, that she is now pregnant with a child, which, if bora alive, will be a bastard,] and that C— — D' is the father of said child. [Signed,] A B , The above complaint was reduced to writing by ipp, and sworn to and subscri- bed before me, this day of- , A. D. — G H , J. P. (2) The warrant may be in the form following: The State of Ohio, County, ss. To I J , Sheriff [or Coroner] of the county of , [or Constable of the township of , in the county of , as the case may be,"] greeting: Whereas, A B , an unmarried woman, resident of said county of , hath tills day made complaint on oath before me, G H , a justice of the peace in and for the township of , in said county, [that on the day of , in the year , she was delivered of a bastard child; or say, if the fact be so, that she is now pregnant of a child, which, if born alive, will be a bastard,] and that C U is the father of said child; and which accusation was then reduced to writing by me: Yoii are therefore commanded to take the body of said C D , if he be found in your county, and bring him forthwith before me, at my office in said township, to answer to said complaint: and for so doing this shall be your warrant. Given under my hand and seal, this ■ day of , A. D. G H , J. p. [Seal.-] This writ is served and returned in the same manner as a capias, for which, see pages 34 to 37. 34 266 BASTARDY. [Prt. 2, presence of the accused pei-son, shall examine the complainant under oath,(l) rospcctinf!; the cause of complaint; and such accused person shall be nlloweil to ask the coini>lainant, when under oath, any question he may think necessary for his justification; all of wliich (luestiims and answers, together with every other part of the examination, must be reduced to writint:; by tlie justice.(2) If, on such examination, the j^arty accused should pay, or secure to be paid to the complainant, such sum or sums of money, or property, as she may agree to receive, in full satisfaction, and shall further give bond to the overseers of the poor of the township in which such complainant shall reside, and their successors in oliice,(3) con- (1) Form of the oath to be administered to the female: You do solcnml)' swear, in the presence of Almig-hty God, the searclier of all hearts, that you will testify the truth, the whole truth, and nothing- but the truth, in the cause now in hearing- ag-ainst C D , upon your complaint, and this you do as you will answer to God. If the woman has been convicted of any crime which would by law disqualify her from being a witness in any other case, her testimony cannot be received. Slat. 157, §5. As to what crimes disqualify, see page 58. (2) The questions and answers may be entered on the docket, or on a loose sheet, with the following- caption: The examination, under oatli, of A R , an unmarried woman, resident of county, t:iken by and before me, G II , J. p-, of townsliip, county, on the day of , in tlie year , upon her complaint of bastardy, against C D , he being then present in custody before me, upon the warrant issued by me in the premises. Question by the Justice. — Are you now, and if so, how long have you been res- ident of county? Jinawer.- — . Quest. — Are you married or unmarried? Ans. . Quest. — Have you been delivered of a bastard child? If so, when? When was it begotten, and who is the father of the child? Jlns. . Quest.— ? Quest, by defendant ^ Ans.- No further questions were asked. (3) Form of Bond to the overseers of the poor: H- Know all men by these presents, that we, C D , T S and J — M , are held and bound unto the overseers of the poor of township, . county, Ohio, [here insert the names of the overseers for the time being,] and their successors in office, in the sum of dollars, for the payment of which we jointly and severally bind ourselves. Sealed with our seals, and dated this day of , in the year : The condition of the above obligation is such, that, whereas, the above bound C D has been arrested upon a warrant issued by G H , a justice of the peace in and for said county, on the complaint of A B , an immar- ried w'oman, resident of said townsliip, for being the father of a bastard child, [with which the said A B is now pregnant; or say, if the fact so be, of which the said A B has been delivered:] and the said C D hath com- promised with and satisfied the said A B , in the premises, in pursuance of the law: Now, if the said C D shall save the said township free from all charges 2Well.] ■: BASTARDY. 267 ditioned to save such township from all charges towards the main- tenance of the child; then, and in that case, the justice must dis- charge the party accused out of custody.* The agreement between the complainant and accused must be made or acknowledged by both parties in the presence of the jus- tice, who must enter a memorandum thereof upon his docket.'' If such agreement between the complainant and accused is not made, or being made, the accused does not give bond indemnifying the township, the justice must bind the accused in a recognizance with sutlicient security, in a sum not less than two hundred, nor more than five hundred dollars, to appear at the next court of com- mon pleas, to answer to the accusation and to abide the order of tlxe court thereon. The recognizance is taken for the benefit of the township.(l) If the accused neglect or refuse to find security, the justice must cause him to be committed to the jail of the county ."^(2) (a) Stat. 155, $1. (b) Id. 156, §2. (c) Id. ib. $3. for the maintenance of said child, then this obligation to be void, otherwise to be and remain in full force in law. [Signed,] C D , [Seal.] T S , [Seal.] J M , [Seal.] The statute seems to require security to- the bond; Stat. 156, §3. (1) Form of the Recognizance for the appearance of the defendant: The State of Ohio, county, ss. Be it remembered, that on this — day of , in the year of , C — - D— — <, T S and J M personally appeared before me, G H , a justice of the peace of township, in said county, and jointly and severally ac- knowledged themselves to owe and be indebted unto the State of Ohio, for the use and benefit of township in said county, the sum of [here insert not less than two hundred, nor more than Jive hundred dollars,] to be levied of their goods and chat- tels, lands and tenements, upon this condition, — that if the said C D shall personally appear before the court of common pleas next to be holden in and for said county of , on the first day of the term thereof, continue from day to day, and then and there answer unto a complaint of bastardy made by A B , against him, and abide the order of the court thereon, then this recognizance to be void, otherwise to be and remain in full force in law. [Signed,] C D , T S , J M . Taken and acknowledged before me, the day and year aforesaid. G H , J. p. (2) Form of Mittimus for the commitment of the accused to the jail of the county: The State of Ohio, County, ss. To the keeper of the jail of the county aforesaid, greeting. Whereas, C D has been arrested and brought before me, G II , a justice of the peace in and for said county, by warrant issued by me, on a com- plaint of bastai-dy, made against him by A B , an unmarried woman, and resident of said county; the said A B examined in presence of said C D , and such proceedings iiad, that said C D was ordered i)y me to enter into recognizance with security, in the sum of dollars, for his appearance at the next term of tlie court of common pleas otsaid county, to answer said accu- sation, &c.,'wliicli he hath neglected to do. Therefore, I command you, in the name of tlie State of Ohio, to receive said C 1) into your custody in tlie jail of the county aforesaid, there to remain until discharged by due course of law. Given under my iiand and seal, this day of , A. D. 18 — . G H , J. p. (Seal.) See the form of a return to a MlUlinu.s, page 52. ■, 268 BASTAiiDT. [^Prt. 2, If a woman has a bastard child and neglects to bring a suit for its maintenance, or commences a suit and fails to prosecute the same to final judgment, the overseers of the poor, in any township inter- ested in the support of the child, (when sufficient security is not oflered to save the township from expense,) may bring a suit in be- half of the township, against the person who is accused of begetting such child; or may take up and prosecute a suit begun by the mo- ther of the child.* The father of the bastard child has no legal right to the custody or control of it, in opposition to the claim of the mother.'* FORM OF DOCKET ENTRY. B- C- vs. > Bastardy. D . S May 19, 1847. A B , an unmarried woman, and resident of the county of , Ohio, this day made complaint under oath to me, [that she has been delivered of a bastard chihl; o?- .sv/?/, if the fact be 5o, that she is pregnant with a child, which, if born alive, will be a bastard;] and that C D is the father of said child. Her said accu- sation was then reduced to writing by me, and sworn to by her, and I then issued a warrant for said C D , directed and deliv- ered to I J , constable of township, in said county. May 20, 1 847. With the body of C D , the said constable returned the warrant, '■'■3Iai/ 20, 1847, 1 have the body of the within named C D . Fees, — — , I J , Constable." The said A. B also present, who was duly sworn and examined by me, in the presence of said C D , and the ex- amination reduced to writing by me and filed. Finding the said complaint true, * the said C D thereupon refusing to pay the said A — B to her satisfaction, it is ordered and adjudged, that he enter into recognizance in the sum of dollars, for his appearance at the next term of the court of common pleas of county, to answer said complaint, and abide the order of the court thereon. The said C D , with T S and J M , entered into recognizance accordingly. [Here enter the recognizance. See form., page 2G7.] (a) Stat. 156. $2. (b) 2 Kent's Com. 215. (1) The practice has been to carry on the suit in the name of " The State of Ohio;" but this seems unnecessary, the female being- the real plaintiff, and there- fore the proper plaintiff to name on the docket. See Wright's Hep. 565. The prosecuting attorney is not bound to attend to such suits. Title 11.] BASTARDr. 269 If the facts he so make the following entry: The said C — D- neglected [refused] to enter into said recognizance, witii surety, whereupon mittimus issued and dehvered lO I J , consta- ble, for his commitment to the jail of the county. June 1, 1847. Mittimus returned, {liere enter the ixturn^ If the woman and accused compromise^ the entry may he as follows^ heginning at the * in the preceding form : Thereupon the said C — D and said A — B , before me, acknowledged that they had compromised the above accusation, as follows: C D has executed his sealed notes to A B , with J D his surety, for the payment of the following sums of money : dollars in one year, dollars in two years, dollars in three years from the present time; and the said A B then and there in my presence acknowledged that she received said notes as a full satisfaction, and said C D entered into bond to the overseers of the poor of township, in said county, and their successors in office, in the sum of , with T S and J M his sureties, conditioned to save said township free of all charges towards the maintenance of said child,(l) and paid the costs of this prosecution, taxed at dollars. Whereupon said C D was discharged from custody. (1) See the form of the bond, pages 266, 267. TITLE XII. CONSTABLES. SECTION I. HOW INDUCTED INTO OFFICE, WITH THE FORM OF THEIR OFFI- CIAL BOND. II. IN WHAT CASES A JUSTICE MAY APPOINT A CONSTABLE, WITH THE FORM OF THE APPOINTMENT. III. THE GENERAL POWERS AND DUTIES OF CONSTABLES. IV. PROCEEDINGS AGAINST A CONSTABLE AND HIS SURETIES FOR THE MISCONDUCT OF THE FORMER, WITH FORMS OF PRO- CESS AND DOCKET ENTRIES. Sec I. HOW INDUCTED INTO OFFICE, WITH THE FORM OF HIS OFFICIAL BOND. Constables are elected annually on the first Monday of April, at the township elections.* Every constable, within ten days after his election, must take an oath or affirmation before some person authorized to administer oaths, to support the constitution of the United States, and the con- stitution of the state of Ohio,^ and to faithfully and impartially dis- charge the duties of his office,*^ and also within ten days after the election or appointment, and before he enters on the duties of his office, he must give bond to the State of Ohio, in any sum not ex- ceeding two thousand dollars, nor less than five hundred dollars, with one or more sureties, resident in the proper townships, such as the trustees thereof shall approve, conditioned for the faithful and diligent discharge of the duties of his office. The township clerk makes an entry of the bond in the township record, and files it in his office.'^(l) (a) Stat. 950, $7. (c) Stat. 950, $8. (b) Const. Ohio, Art. 7, $1. (d) Id. ib. $9. (1) Form of a constable's official bond: Follow the form of the bond given at page A, note (3), to the words "Whereas the said G. H.," and from that point proceed as follows: "Whereas the said I J hath been duly elected and qualified as a consta- ble in and for the township of and county of , in said State, for the term of one year from the — day of April, eighteen hundred and . Now tlie condition of the above obligation is such, tiiat if said I J shall diligently and faithfully discharge the duties of his said office of constable, then this obligation to be void, otherwise to be and remain in full force and virtue. ISigncd,] I J , [Seal.-] E F , [Seal] [Prt. 2, Title \% §1, 2, 3.] constables. 271 Sec. II. IN WHAT CASES A JUSTICE MAY APPOINT A CONSTABLE.* Where there is no constable in a township, or if the constable is absent, or a party to the suit, or is under any other disability, the justice may, if it is necessary that process should be immedi- ately served either in a criminal or civil case, appoint a person who is willing to serve for the time being. The appointment must be in writing under the hand and seal of the justice, and must specify the cause of such appointment.(l) No security in such case is required, but the person appointed is liable for neglect of duty, or illegal proceedings, and is entitled to the same fees as other constables, and may act until the vacancy is again supplied.* There is nothing in the statute which forbids the constable thus appointed, from serving process issued by any justice of the town- ship. Sec. III. THE GENERAL POWERS AND DUTIES OF CONSTABLES. Constables are the ministerial officers of the courts held by jus- tices. It is their duty to apprehend and bring to justice, felons, and disturbers of the peace, within their respective counties.^ The mode in which process is served and returned by them, is pointed out in another part of this work. It is their duty to notify township officers of their election.'^ Constables upon receiving a w^arrant from the trustees, or the clerk of the township, must notify the electors of a township, of the time and place appointed for the annual township meeting, by set- ting up copies of the warrant in three public places in the town- ship, at least ten days before the meeting of the electors.*^ It is their duty to preserve the peace at the township elections and meetings, and if the trustees order it, they must remove or con- fine, until the close of the election or meeting, disorderly persons, and otherwise obey the directions of the trustees in relation to pre- (a) Stat. 524, $100, (c) Stat. 951, $10. (bj Id. 541, $25; 506, $2. (d) Id. 952, $16 and 17. (1) Form of the appointment of a constable by a justice: Tlie State of Ohio, Township, County, ss. To A B . There bcinf^ no constable in said township, [or say, if the fact be so, I — J , the only constable of said township, being- sick, and unable to attend to the duties of his office, or being- a party to the suit of A B , now about to be com- menced before me, or bein^ absent from said township, us the case viuy tte,'\ and it being- necessary that process should be immediately served, in the case of A B vs. C D , you are therefore hereby appointed constable of said township, and authorized to perform the duties of said office for the time being-. Given under my hand and seal, this day of , A. D. 18 — . G II , [Seal.] Justice of the peace, in and for said county. 272 CONSTABLES. [Prt. 2^ Title 12^ serving order and regularity.* The trustees allow the constable reasonable compensation for advertising the time of holding town- ship elections, and for notifying township officers of their election.^ It is a general rule, in relation to the allowance of fees to an officer, that when the law requires him to do an act without direct- ing a compensation therefor, the officer is bound to do the act with- out charge or fee. The constable therefore, is not entitled to fees for preserving order at the township elections. Sec. IV. PROCEEDINGS AGAINST A CONSTABLE AND HIS SURETIES FOR THE MISCONDUCT OF THE FORMER, WITH FORMS OF PROCESS AND DOCKET ENTRIES. The jurisdiction of justices of the peace does not extend to ac- tions against constables, for misconduct in office,' except when they fail to make return, or make a false return to process, or refuse to pay over mone}^ collected or received in an official capacity.** For other official misconduct, the remedy of the party injured, is by suit in the court of common pleas. It is the duty of an officer, when he receives process which is valid, to indorse upon it the facts in relation to the mode and man- ner in which he has executed its command; or if he has not execu- ted the writ, he must endorse upon it a legal excuse for not per- forming his duty. He must also deposit with the justice the writ thus indorsed, within the time prescribed by law. If a constable fails in any one of these three duties, he fails to make return of pro- cess, and renders himself and his sureties liable to be sued by scire facias, in the manner hereafter mentioned. If the plaintiff has not in fact sustained any damages, by reason of the omission of the officer to indorse upon the writ his doings under it, or on account of his neglect to deposit the writ duly in- dorsed, with the justice, within the time prescribed by law, the con- stable will only be liable for nominal damages(l) and costs.® If the officer makes retui'n that he has done the act required of him by the command of the writ, or states a fact in the return, which if true, would by law excuse his compliance with the com- mand of the Avrit, in every such case, if the return is false, the officer and his sureties will be liable to the plaintiff, in a suit by scire facias, as hereafter mentioned. In an action for a false return, (a) Stat. 954, $24; (d) Stat. 531, $1 16. (b) Id. 953, $22. (c) 1 Wend. Kep. 48. (c) Id. 525, $106. (1) Nominal damag-es are given where the plaintiff has a good right of action, and is therefore entitled to judgment for some amount, but has in fact sustained no damages. In such cases the plaintiff is entitled to a judgment for one cent, which is called nominal damages. §4.] CONSTABLES. 273 though the return be untrue on its face, yet the officer making it, is not hable except for nominal damages and costs, if the facts of the case, truly stated, would have produced the same result to the party- complaining, as the return made.* In general, the plaintiff will recover in an action against a con- stable for failing to make return, or making a folse return, or refus- ing to pay over money collected or received ofRcially, the amount of damages sustained by him, with ten per cent penalty, and costs.^ If a constable receives or collects money merely as an agent, and not in his official capacity, he can neither be sued by scire facias, nor are his sureties liable. The constable in such case may be sued like other agents. The statute provides'' that when a constable shall fail to make re- turn, or shall make a false return, or refuse to pay over money by him collected or received in his official capacity, any justice of the peace within the township where such delinquent constable may reside, or be, being satisfied thereof, on application of any person or persons aggrieved thereby, his or their agent or attorney, shall forthwith issue a scire facias against such constable, directed to any responsible individual who may be named by the justice, and who will consent to serve the same, commanding the delinquent consta- ble to appear before the justice to show cause why an execution .should not be issued against him. FORM OF SCIRE FACIAS AGAINST A CONSTABLE. The State of Ohio, Township, County, ss. To R S , greeting: Whereas, I J , constable of township, in said county, [here state the particular cause of complaint. If the suit is brought for failing to make return of an execution., the cause of com- plaint may he slated as follows •] ^'•did fail to make return and within the time prescribed by law, of a certain execution issued on the day of , in the year by M J , then and ever since being a justice of the peace in and for said township and county, in favor of A B against C D , for the sum of dollars, cents, which then duly came to the hands of said I J as said constable, to execute." If the suit is brought for making a false return of '•'■no goods., ^-c." to an execution., state the cause of complaint as follows: "to a certain Fi, FA. execution, in due form of law issued, on the day of , in the year , by M J , then a justice of the peace of said township and county, in favor of A B , against C D , for the sum of dollars cents, and which then duly came to the hands of said I J to (a) 1 Wcn.l. Rep. 4R. (h) Stat. 531, ^1 16. 35 274 CONSTABLES. [Prt. % Title 1 2, execute, as and being said constable, he the said I J , as said constable, did falsely make return upon said writ, that the said C D had not any goods or chattels whereof he could make any part of the amount of said execution; whereas, in truth and in iact. the said C J) , at the time said execution was in the hands of said I J to be executed, iiad goods and chattels liable to, and which by law ought and might have been taken, by reasonable diligence, to satisfy said execution, or a part thereof," If the cause of complaint is for not payhig over to the plaiyitijf be- fore the return day of an execution money collected the?'eon^ it may he stated as folloics :{\)* ''on the day of , in the year , col- lected as* and then being constable of said township and county, the sum of dollars, cents, upon and by virtue of an exe- cution, then in his hands, duly issued by M J , a justice of the peace of the same township and county, for the sum of dollars, besides costs, in favor of A B against C D ;* and, whereas, the said A B being entitled to said money, on the day of , in the year , before the return day of said writ, demanded said sum of money of said I J , who refused to pay over the same." //" the complaint is for not paying over to the justice on the return day of the execution., the monexj collected thereon., the cause of complaint may be stated as follows: Copy themalter between the two asterisks in the last preceding paragraph., and then add the following: — "And, whereas, the said I J neglected, at the return day of said execution, and still doth neglect and refuse, to pay over said sum of money to said A B , or M J , or to either of them." After stating the cause of coinplaint accmxling to the facts in eacti case., tlien proceed to Jill up the writ with the following : ''You are therefore hei'eby commanded to summon the said J J to ap- pear before me, G II , a justice of the peace, in and for said township of — , at iny office, within five days from the service here- of, to show cause, if any he has, why an execution should not issue against him, in favor of said A — B — , by reason of the premises; and of this writ make legal service and due return. Given under my hand and seal, this — day of — , A. D. 1 8 — . G H , J. p. (Seal.) If the constable neglects to appear within five days from the time of the service of the writ, or does not show proper cause why exe- cution should not issue against him, the justice must render judg- ment for the amount of the damages sustained, together with the costs, and ten per cent penalty, and forthwith (without permitting a stay of execution to be taken) issue execution therefor.* .(a) Stat. 531, $116. (1) As to wlien money sliould be paid by a constable to the plaintiff, or to the justice who issued the writ, see paj^e 164. §4.] CONST ABLBS. 275 I.H3KM OF A IXDCKF.T KNTRY, IN PROCEEDINGS AGAINST A CONSTABLE. A B- vs. I — J — . Suit brought against the defendant as constable of town- ship, county, for [//ere state the cause of complaint^ in the same manner as is directed in the 2^1'cceding scire facias.'] Amount claimed, ^ — , with ten per cent penalty. Mai/ 20, 1847. Bill of particula,rs filed, and being satisfied that the said defend- ant, as is above complained against him, made a false return, [or say., failed to make return, ifg say., refused to pay over said money received by him in his official capacity, as the case may 6e,] contrary to law; upon application of said A B , I issued a scire facias against the defendant, directed and delivered the same to R S , a responsible person, who consented to serve the same. May 21, 1847. Scire facfhs returned, "Personally served on the 20/// day of TV/ay 1847, by deliveriii^ a copy to the defendant, which was demanded. Fees — cents. *^ R S ." May 26, 1847. The plaintiff appeared, the defendant failing to appear within five days from the time of the service of said writ, [or say if the fact be so., "the defendant appeared," and then proceed as folloios:'] trial had, and no proper cause being shown why execution should not issue against said constable; it is therefore considered by me that the plaintiff" recover of said defendant the sum of — dollars, and — cents, being the damages sustained by the plaintiff" in the premises, and also the sum of — dollars, — cents, being ten per cent penalty on said damages, (which in the whole amount to — dollars, — cts.) together with costs herein taxed, at — dollars, — cents, and that execution issue accordingly. The execution may be directed to any person the justice may think proper, who serves and returns it, and charges fees the same as if he were a constable.* If the execution is returned unsatisfied, either for want of goods and chattels whereon to levy, or other cause, the justice, upon the request of the plaintiff', may issue scire facias against the sureties of the constable, and make them parties to the judgment, if they reside in any township of his county .*• (a) Slat. 531, $110. (h) Id. 532, $117, 1 19, 120. 276 CONSTABLES. [Prf. ± Title \2, FORM OF SCIRE FACIAS AGAINST THE SURETIES OF A CONSTABLE. The State of Ohio, county, township, ss. To any constable of said township, greeting: Whereas, A B recovered judgment against I J for official misconduct as constable of said township, for the sum of — dollars, — cents, and — dollars costs, on the — day of , A. D. 18 — , before me, G II , a justice of the peace in and for said township and county, as appears 'of record, and which re- mains due upon execution issued thereon, and returned unsatisfied, and whereas, [//ere insert the names of the suretiesl^ are the sureties of said I J on his official bond, and liable in the premises as alletlged, for the amount of said judgment: this is therefore to com- mand you to summon the said \Jiere insert the names of the sureties^ to be and a]:>pear before me, at my offic^ in the township of , in said county, at — o'clock, , on uie \jiere insert a day for the trials not more than tivelve days from the time of issuing the ivrit^ and such time that the xcrit may he served Jive days previous to tJie day of trial. Stat. 534, §126.] day of , in the year — , to show cause, if any there be why judgment should not be rendered against them, for the damages, interest, and costs aforesaid, remaining due and un- paid, and why execution should not issue therefor; ancl of this writ make legal service and due return. Given under my haifS and seal, this — day of , A.D, 1 8—. G II—*, J. P. {Seal) If the sureties reside in the county, but do not reside in the town- ship of the justice, he may direct the scire facias to any constable of his own tow-nship, or to any constable of the township where the sureties reside.* In either event, the constable who receives the writ may be proceeded against by the justice who issues it, for not making .return, or for making a false return, as in other cases.** The sureties may at the return day of the scire facias, set up any matter which may have arisen subsequent to the entering of judg- ment against the constable.*^ If they do not show sufficient matter of defence, or that they have paid on judgments the full amount of the official bond,** judgment must be entered against them for the amount rendered against the constable, or so much thereof as re- mains due.® Execution is aw^arded against them as in other cases.^ The goods and chattels however of the surety are not liable to be taken in execution w^hen sufficient goods and chattels of the consta- ble can be found to satisfy the same.(l) (a) Stat. 532, $119; 522, $92. (d) Id. ib. $127. (1.) Id. ih. (e) Id. ih. $125. (c) Id. 534, $125. (g) Id. ib. (1) Stat. 534, §12.5. It would seem from the terms of the statute, that upon the judg'ment against the security, it is proper to issue an execution in the form \vhich will be found on page 142, .sec. 6. §4.] CONSTABLES. 277 FORM OF DOCKET ENTRY IN PROCEEDING AGAINST THE SURETIES OP A CONSTABLE. These proceedings should he inserted on the docket^ immediately after the proceedings against the constable. After the statement of the issuing of the executio?i against the con- stable., and the return of no goods and chattels., proceed as follows: June 5, 1847. At the request of the phiintiff, issued scire facias against [here in- sert the names of the sureties.'] the sureties of said constable, on his official bond, for their appearance, June 15, 1847, at 2 o'clock, P. M. and delivered to R M , constable, June 7, 1 847. Scire facias returned, "personally served," June 6, 1847, by read- ing this writ to each of the defendants within named. Fees, . R M , constable. June 15, 1847, 2 o'clock, P. M. Parties appeared, trial had, and no sufficient matter of defence being made, it is considered by me that said plaintiff recover of said [liere insert the names of the su?-eties'] the sum of [Ae?'e insert the amount of the judgment against the constable., with the interest and costs., or so ?nuch as remains due,] (being the amount remaining due of the above judgment, against the said constable.) together with the costs of the plaintiff herein, taxed at dollars cents. TITLE XIII. CONTEMPTS. A CONTEMPT, in its legal acceptation, consists in, either ti'cating a court of justice, or a person invested with, and while acting under judicial authority, in a contumelious and disrespectful manner, or the violating of rules or orders, made by competent tribunals. If a justice while holding court were not vested with the power of punishing persons for misbehaviour in his presence, he could not even preserve order or silence. Without this power no tribunal could exist. Single magistrates in other States and countries pun- ish by fine or imprisonment, or both, any person who is guilty of such disorderly, contemptuous or insolent behaviour towards them, while engaged in the trial of a cause, or in the rendering of a judg- ment, orin any judicial proceeding, as may tend to interrupt such proceedings, or to impair the respect due to their authority.* I have no doubt but that this salutary and necessary power, may be exercised by a justice of the peace in Ohio.(l) When, therefore, any person, be he party, attorney, witness, constable, or bystander, is guilty of disorderly and insolent beha- viour while the magistrate is engaged in his judicial duties, as above mentioned, the justice may order the person into. custody, and im- mediately punish for the contempt, by fine or imprisonment, or both, at his discretion. When a justice is insulted, or a person disturbs his court, he should remember that the law does not give him the power of pun- ishing for the sake of soothing his own feelings, or to compensate him lor an insult. It is his official character alone that the law in- tends to protect, and consequently a magistrate is not protected from insult except while he is holding his court. The power of punishing for a contempt should be exercised with great caution, and in no case when the justice himself has been guilty of rude or passionate behaviour or language towards the person guilty of the contempt. (a) 1 Bay, 1; and see 1 Dall. 329; 1 Pet. C. C. Rep. 73; 1 iPet. Cond. Rep. 407, note; 20 Vol. Niles Reg. 73; Cowan's Jus. 549; Slat. 211. (1) The statute of thi.s State in relation to contempts, (Sfaf. 211,) is not per- haps applicable to justices' courts. The slaUitc punishinf,'- persons for abusing a judge or justice, while in the execution of his office, (Siaf. 242, ^56,) cannot by construction, reach disturbances in court. [Prt.^^Title\3.] contempts. 279 When a contempt has been committed, the first step should be, after ordering the person into custody, to draw up a statement of the charge in the docket, setting forth the time, place, and circum- stances under which the ofience was committed. This should inva- riably be done for the protection of the magistrate; for it will be conclusive evidence in his favor, of the facts stated, should an action be brought ao;ainst him.'^ form of the entry on the pocket, when a person has been guilty of a contempt. The State of Ohio, ) vs. > S R . ) The State of Ohio, Township, County, ss. Be it remembered, that during the trial of a cause between A B , plaintiff, and C — D , defendant, before me, G — H , a justice of the peace of said township and county, on the — day of — in the year , at my office in the said township, S — R did wilfully and contemptuously misbehave and interrupt me while en- gaged in the trial of the said cause, by making a great noise and dis- turbance; and being ordered by me to cease making such noise and disturbance, refused so to do, and said to me that he did not regard me nor my authority; [or of her description of the offence according to the fact.'] and thereupon I immediately ordered him into custody, and reduced the matters and charge of misbehavior and contempt aforesaid to writing, in the words and figures aforesaid, (which are the said w^ords and figures,) and read the same to the said S — R — , W'ho being then called upon to answer for the said contempt, and not having purged himself therefrom, I do find and convict said S — R — , of a contempt in the premises, and do adjudge that he therefor pay a fine of — dollars; and also that he be imprisoned in the jail of the said county, — hours, and until he pay the fine aforesaid, or be duly discharged, according to law. FORM OF COMMITMENT FOR A CONTEMPT. The State of Ohio, county, ss. To the keeper of the jail of said county, greeting: Whereas, S — R — has this day been convicted before me, G — H — , a justice of the peace of the township of — , in said county, of a contempt; for that, on this day, during the trial of a cause be- tween A — B — , plaintifl[', and C — D — , defendant, before me, at my office in said township, he, the said S — R — , did wilfully and con- temptuously misbehave and interrupt me, while engaged in the trial (n) 16 East, 13. 280 coNTEikiPTs. \_Prt.'2^ Tith\3.] of said "cause, by making a great noise and disturbance; and being ordered by me to cease making such noise and disturbance, refused so to do, and said to me, that he did not regard me, nor my authori- ty; [or other dcscripiion of the olfence. accurding to the facts.] And whereas, upon such conviction, 1 did adjudge and determine, that the said S — R — pay a fine of — dollars; and also tliat lie be im- prisoned in the jail of said county — hours, and until he pay the said fine, or be duly discharged according to law: You are therefore hereby commanded, to-receive the said S — R — , and him confiuv', in the jail of said county, — hours, and until he pay said fine, or be duly (liscliarged according to law. Given under my hand and seal, this — day of — , in the year — . G II , J. V. {Seal) TITLE XIV. CONTRACTS GENERALLY. SECTION I. DEFINITION CONTRACTS BY PAROL SPECIALTIES EXECU- TED EXECUTORY EXPRESS IMPLIED, II. OF WANT OF UNDERSTANDING TO MAKE A CONTRACT. III. OF RESTRAINT BY IMPRISONMENT. IV. OF RESTRAINT BY THREATS. V. OF THE CONSIDERATION OF A CONTRACT; VI. OF AN ILLEGAL CONSIDERATION. VII. HOW CONTRACTS SHOULD BE CONSTRUED AND PERFORMED, VIII. OF THE ALTERATION OF CONTRACTS. IX. OF CONTRACTS NOT TO BE PERFORMED WITHIN ONE YEAR. Sec I. DEFINITION CONTRACTS BY PAROL SPECIALTIES EXECU- TED EXECUTORY EXPRESS IMPLIED. The word ''contract,'' in its legal sense, includes every descrip- tion of agreement or obligation, whether verbal or written, or with or without seal, whereby one party becomes bound to another to pay a sum of money, or to perform, or omit to do, a certain act. If a contract is under seal, it is called a specialty, or a deed: if not under seal, an agreement by parol. All agreements, whether written or verbal, if not under seal, are called 'parol' agreements.(l) If a person sells and delivers goods for a price paid, the agree- ment is executed; as nothing more is to be done by either party. If you purchase a horse, which is to be delivered and paid for next week, the agreement is executory; because there is something to be done in order to perform the contract. If you purchase a yoke of oxen of A, for seventy dollars, and pay him part of the money in hand, the contract is partly executed^ and partly executory. When the terms of a contract are openly uttered, or put in wri- (1) The word "parol," when used in relation to evidence, has a more limited meaning than when applied to contracts; for "parol evidence," is only such evi- dence as arises from the verbal testimony of witnesses; wiureas, the term "parol contract" includes as well verbal, as also all written agreements, not under seal. 36 282 CONTRACTS GENERALLY. [Prt. 2, Title 14, ting and signed by the parties, the agreement is called an express contract: as to deliver a load of wood for one dollar, or to pay a stated price for certain goods, or the like. An implied contract is where justice and honesty re(|uire payment for some value or service rendered, altli(-)ugh nothing but the value and service be proved: ns if a mnn works for you, the law implies a promise to pay iiiin what he deserves ibr his labor. If you receive goods of a merchant, without any ngreement as to the price, the law concludes that you contracted to pay their real value. So if you receive property for me, and dispose of it, the law will imply a promise on your part to pay mc tiic proceeds of the sale."^ In general, the only difference between an express and implied contract, is as to the mode of proof An express contract is proved by evidence of the express words used by the parties; an implied contract is established by proof of circumstances, showing either that in justice and honesty a contract out to be implied, or that the parties intended to contract. Whether the contract be estab- lished by evidence direct, or circumstantial, the legal consequences resulting from the breach of it, must be the same. Thus: where money or property is paid, under a mistake as to facts, there being no negligence on the part of the person who pays, (in not availing himself of the means within his power, of knowing those facts,) it may be recovered back.'' The law raises an implied promise to refund the money, or the value of the pro- perty. But this implied promise will only arise when the money or property ought, in equity and good conscience to be returned, and when the contract and payment is founded on the belief that a fact did not then exist, which really did exist; or when the con- tract is founded upon the belief that a fact then existed, which really did not exist. If, therefore, a party pay money which the law would not have compelled him to pay, but which in justice he ought to' pay, he has no remedy for the recovery thereof^ So, where parties are uncertain about a fact, and make the contract, or pay money, with a view to that uncertainty, (as where parties have a final settlement by making a definite, but rough estimate of the balance between them,) tlie contract is binding, and a pay- ment under it cannot be recovered back, even though it be shown that there was no uncertainty in the fact wdiich was supposed to be uncertain.*^ In such case there is no unfairness: both parties acting under the belief that it is better so to contract, than to ascertain with certainty, by time or otherwise, Mhether the fact certainly exists, or not. So, if a party, with a full knowledge of the facts^ vohinlarily pays a demand unjustly made on him, and at- tempted or threatened to be enforced by a suit, he cannot consider the money as paid by compulsion^ and recover the same back again, although he protested at the time against his responsibility.® In (a) Wright's Rep. 485. (d) 1 Wend. Rep. 355. (b) 9 Ens. C. L. Rep. 294. (e) Chitty's Con, 190, (3d Jim. Ed.) (c) 1 T. R. 286. §1.] CONTRACTS GENERALLY. 283 such case, the party paying, exercises his free will, and cannot be considered as operated upon by compulsory circumstances. But if an officer should demand of you illegal fees for a tavern license, or the keeper of a toll gate should demand of you more toll than ought to be taken, »you would be compelled either to submit to the extor- tion, or deprive yourself of the present privileges to which you are by law entitled; and hence, in these and the like cases, the person paying may recover back the amount improperly exacted.* In general, money paid by a party under a mistake of facts may be recovered back; particularly if he has not the means of know- ledge in his power; but money voluntarily paid under a misappre- hension of the legal rights of the party cannot in general be recov- ered.'' - When a person pays, on a note, account, or other claim, more money than is actually due, he may recover-i^ back, unless it appear that the overplus was paid with a full knowledge that it ought not ^ to be paid; and in such case, the circumstance that the party pay- ing had the means of knowing how much w^as due by a careful at- tention to the state of the transaction, is no defence to the action for the surplus, provided there be, in fact, a mistake in the payment.*^ Where a person, at the time he pays money, is either truly ac- quainted wdth the existence or non-existence of the facts, or, know- ing the facts, is so ignorant of their legal consequences, that he sup- poses he is bound by law to pay the money, when in fact, he is not bound, he cannot, in general, recover it back.** These rules in relation to the recovery of money paid by mistake, must not be applied where money is paid on a judgment; for where a person pays a judgment, however unjust — even if it be for a debt which had been before paid — the defendant cannot compel the plain- tiff by set off, or action, or otherwise, to refund it.*^(l) (a) 9 Eng. C. L. Rep. 232; 2 B. and A. 206; 10 (c) 8 Cow. Rep. 195; 4 Pick. 223. Eng. C. L. Rep. 310; 7 Greenl. 134. (d) 1 Wend. 355; 1 Pet. Rep. 1. (b) 3 Wend. 412. (e) 2 Cow. Rep. 428; 2Dall.231; 7T.R.269. (1) In the case of Mowatt, et. al. vs. Wright, (1 Wend. 355,) the cases upon the subject of mistake of fact and of law, are collected and reviewed by Cliief Jus- tice Savage. He says, in substance, — "When there is no fraud or mistake in mat- ter of fact, if the law was mistaken by the person who pays tlie money, he cannot recover it back. An error of fact takes place, either where some fact which really exists is unknown, or some fact is supposed to exist, which really does not exist; but when a person is truly acquainted with the existence or non-existence of facts, but is ipnorant of the leg'al consequences, he is under an error of law. It is now generally conceded, that the mistake, to entitle a party to maintain liis action, must be a mistake of fact, and not a mistake of law. The cases founded on mistake seem to rest on tiiis principle, that if parties, believing- thata certain state of thing's exists, come to an agreement, witii such belief for its basis, on discovering- their mutual error, they are sent back and lestored to their original riglits; but wiicn money is paid on a claim of rig-lit, made in g-ood faith, and the party paying- acts with as full knowledg-e of the facts as the party receiving, then, although the de- mand was unfounded, tlie payment cannot be recovered back, notwithstanding- the facts should prove to be different from what they were believed to be by the i)arty receiving, but not different from what the party paying supposed tiiey wei-e. In such case, lie who pays the monc}' will be considered as g-ivin,g- it to the person to whom he pays it; as making- it his and closing the transaction." 284 CONTRACTS GENERALLY. [Prt. 2, Titk, 14, What has been said in relation to the payment of money, or more money than was due, by mistake, is eijually appHcable to cases where property is thus paid by mistake. In the orchnary atlliirs of life, contracts are as various as is the business of men. There are, iiovvever, certain rules applicable to all kinds of contracts, whether in the shape of notes, or bonds, or agreements, relating to work or to property. These rules will be here mentioned. Every contract, in order to be binding, must be made between parties having sutiicient age(l) and understanding, and the exercise of their free will at the time of making it. Sec, II. OF THE WANT OF UNDERSTANDING TO MAKE A CONTRACT. A person who is not capable of understanding and transacting the common affairs of life, is not capable of binding himself by a contract. A person is not presumed to be incompetent or insane until it is proved. When, however, the general insanity of a person is proved by onfe party, it is then for the opposite party to show that the person w^as not insane at the particular time when he entered into the contract.* A defendant may hiinself set up this defence.'* It is laid down in Kent's Commentaries, that a contract made by a person when so drunk that he did not know the consequences of his contract, may be avoided by him on that account. (2) When such drunkenness is occasioned by the contrivance of the other par- ty, for the purpose of inducing the person to enter into the agree- ment, it is clear that the agreement may be avoided.*^ Sec. III. OF RESTRAINT BY IMPRISONMENT. If a person be unlawfully imprisoned, and then induced to enter into the contract to obtain his freedom, this will render the contract void/ So, also, if a person be falsely, maliciously, and without probable cause, imprisoned, under legal process, and in order to procure his liberty, make a deed or contract, such deed or contract will be void.® But if a person be maliciously arrested and impri- (a) 5 Jolins. Rep. 144; 3 Bro. 441. (c) Chit, on Con. 30; Wright's Rep. 507. (b) 3 Day. 90; 5 Pick. 431; 15 Johns. Rep. (d) Cro. Jac. 187. 503; Str. Rep. 1104. (e) 6Mass. Rep. 512. (1) As to contracts by tliose under ag-e, see title. Infants. (2) 2 Kent's Com. 451. Tills principle slioiikl he cautiously applied, and the justice slioiild not pcrmt the conlruct to he avoided, iiidcss it be clearly shown that the understanding of tlie p;irty was so clouded as to render liim incapable of knowing', at the lime, the terms and effect of his contract. §2, 3, 4, 5.] CONTRACTS GENERALLY. 285 soned, and freely and voluntarily give a bond for the amount, or freely and voluntarily enter into any other contract, he will, in general, be bound. A power of attorne}^, however, to confess a judgment, executed by one in custody on a capias, to the plaintiff" at whose suit he is in custody, will be void, unless some attorney at law, in behalf of the person in custody, and expressly named by him, be present and sign the power of attorney as a witness.'' Sec. IV. — OF restraint by threats. If a person be threatened w^ith some personal injury, as death, illegal imprisonment, assault and battery, or the like, and under the influence of fears thus excited, make a contract, it will be void though upon good consideration.(l) A threat to burn the house of the party, or to take his goods, will not render the contract void.'^ Sec. V. — OF the consideration of a contract. A contract, in order to be binding, must be made upon a suffi- cient consideration. The consideration is the price, motive, or in- ducement to make the promise upon which the suit is brought. An agreement to pay, or do a thing, on one side, without any com- pensation on the other, is totally void in law. This is called a nu- dum pactum; that is, a naked, or bare promise. Thus: you agree to give me fifty dollars, next week, and fail to pay the money; I cannot sue you upon this promise, for which there is no considera- tion. But, if I have done any thing for you, or at the time that you enter into the contract to pay me the money, I agree to do something for you, as a consideration for your promise, such pro- mise will be binding. But any trifling consideration is sufficient to prevent the agreement from being void for w^ant of considera- tion. In connection w'ith this subject, it will be proper here to make some remarks upon the statute in relation to the right of showing a want or fliilure of the consideration of a contract. The statute provides,"^ "-'that in any action founded upon any instrument under seal, or other written contract, for the payment of money, or the delivery of property, the defendant may show the (b) Stat. 665, $76. (c) 1 ni. Com. 131. (d) Stilt. 685. (1) It has been held, that if a man should compel another to enter into a con- tract by threateninfj to beat him, the contract would be g'ood, because a man is protected by the law, and one of ordinary firmness would not be aflected by suc!i threats. Kut tlie law is intended to protect the weak a.tj-ainst the violent; and llie question oufjlu not to be, whether a man is a coward, but whether he was induced to make the contract by the fear of personal violence. 286 CONTRACTS GENERALLY. [Pr/. 2, 7'i7fe 1 4, want or failure of the consideration, in the whole, or in any part thereof, of such sealed or written instrument. And if any contract under seal, or written, for the payment of money, or delivery of property, is alledged by either party, in any stage of the proceed- ings, the other party may prove, on the trial, the want or lailure in the whole, or in part, of the consideration of such sealed or written instrument: and whenever such sealed or written instrument, for the payment of money, or delivery of property, shall be given in evidence, in any court, by either party, without being pleaded, the other party may prove the want, or failure, of the consideration, in the whole, or in part, of such sealed or other written instrument: Provided., that nothing above mentioned shall be so construed as to affect or impair the right of any bona fuh assignee, or assignees, of any sealed or other instrument in writing, made negotiable by the law of this State, when such assignment was made before such in- strument became due."(l) The words "specialty" and "contract," in the above mentioned statute, are used in their broadest sense. If I agree to pay five hundred dollars for a horse, which every body knows is worth only seventy-five dollars, or agree to pay fifty dollars for clearing an acre of common wood-land, and am sued for the money, I have no right to show that I agreed to pay more than the horse or labor was worth; for here is no failure of consideration. I have, it is true, made a bad bargain; but the statute will not step in and make a better one for me. It leaves me, as it leaves all others, to determine for myself the actual benefit to be derived from the contract. But suppose, in the case above stated, that one who was not the owner, had sold me the horse, and the true owner claimed and took the horse from me, and I should then be sued for the five hundred dollars — there would, in that case, be a total fail- ure of consideration for my promise; and this would furnish a com- plete defence to an action. When t!here is a consideration, and it is not illegal, its actual va- lue or amount will not, in general, be disturbed; for every man having a legal capacity to contract, is supposed to be a suitable judgeof the value he may choose to set upon either his property, labor, or purchase. If he values them incorrectly, it is his own folly, and the statute will not aid him. Thus, a man may, if he pleases, , sell a farm, M'orth ten hundred, for ten dollars, provided he does not injure his creditors by so doing; for he may even give it away, if he pleases. The law will protect him from fraud and imposition, but not from a mistake of his judgment in making a bargain. If he borrows fifty dollars, and contracts to pay it, and ten dollars of the money is counterfeit, there is a want, or failure of consideration for the ten dollars, and only forty can be recovered against him. If he (1) As to the cases in which a ckfcndant may set up a want, or failure, of con- sideration, as a defence to an action on a negotiable bond, promisssory note, and bill of excbang-e, see Title 31, Sec. 14. §5.] CONTRACTS GENERALLT. 287 agrees to pay a man fifty dollars for mending a plough, and the man does it, although it may be worth only twenty-five cents, he is bound to pay the fifty dollars. The consideration, therefore, for a promise, is sufficient, if it arise from any act of the plaintiff", from which the defendant or a stranger derives a benefit or advantage, however small, if such act be performed with the consent, express or implied, of the defendant.* If A promise to pay B fifty dollars, provided he will endeavor to do a certain act, if B should show that he did his endeavor, it will be a sufficient consideration to support the promise, and entitle B to recover the money, whether he succeeded or not.'' The consider- ation, therefore, for a promise, is sufficient, if it subject the plaintiff to any inconvenience, detriment, or obligation, without, in fact, be- nefiting the defendant, or any other person.*^ When there are promises on both sides, the promise on one side is a good consideration for the promise on the other. A promise, in consideration of something already done and past, will not be binding, unless such past consideration has been per- formed at the request of the party promising. But, in general, the law will infer a request, from the beneficial nature of the consider- ation;*^ as, where a man pays a sum of money for me, without my knowledge, and afterwards I agree to the payment.® If your house is on fire, and I, with others, aid in putting it out, and you afterwards promise to pay me for my services, it could hardly be inferred that you requested my services; and if this in- ference could not be made, you are not liable on this promise. But if I performed ordinary work for you, on your farm, and you after- wards promised to pay me, it might be very fairly inferred that I did the work at your request, and not gratuitously,^ and your sub- sequent promise would therefore be good. A promise by D, to S, that S may pass and repass over the land of D, is only a gratuitous license, and revocable at pleasure; and if D afterwards fence and shut up the land, so that S cannot pass and repass, no action will lie.'' A gratuitous license, however, cannot, in general, be countermanded, after the person licensed has so changed his condition, in consequence of the license, that the coun- termand would leave him in a worse situation than he would have been in, had the license never been granted.' The application of this rule to mill races cut through, and buildings erected on, the lands of others, will be obvious. When a man ought to do a thing, which he is not, in law, bound to do, and promises to do it, this mere moral obligation, it is said, is not in itself a sufficient consideration to support the promise, except in those cases in which there was a prior legal obligation. If a person is prevented, by the statute of limitations, from reco- vering a debt, there is a moral, and there was a prior legal obliga- (a) 2 Saund. 137, (e). 7 Eng. C. L. Rep. 45. (e) 14 Johns. Rep. 382. (b) Yelv. 11. (K) 7 Id. 87; 10 Id. 243. (c) 3 Burr. 1672; 1 Saund. PI. S; Ev. 147; (1') 10 '''• 246. 2 I'pt. Rep. 182; 2 Jobns. Cas. 52, (i; 20 Eng. C. L. Rep. 287; 8 East's Rep. 303; (d) 1 Saund. 264, note 1. 7 Taunt. 38 1. 288 CONTRACTS GENERALLY. [Pr^ 2, T«7Ze 14, tion, on the part of the debtor, to pay it; and hence, his promise to pay it is bindini>;.(l) This rule should be noticed in relation to a promise without con- sideration: that, although no suit can be brought upon it, yet, if it is performed, both parties are bound by it. For instance: if you promise to give me a horse, or work, for me without compensation, I cannot sue you for not doing it; but if you deliver the gijt, it is mine, or if you do the work, you cannot recover from me any compensation. Sec. VI. OF AN ILLEGAL CONSIDERATION. As the object of the law is to repress vice and immorality, and promote the wellfare of society, all promises which originate in a breach or violation of its principles and enactments, are void. The law will not, therefore, lend its aid to enforce any contract which will lead to the commission of crime or immorality. An agreement, in consideration of future illicit cohabitation between the parties; or to pay rent out of the profits of prostitution, where the house is rented for that purpose;* or to pay the price or value of immoral pictures;'' or to pay for building a nine-pin alley ;'^ or to pay a wa- ger or bet; or to pay for the use of a billiard, or other gambling ta- ble;*^ or to pay money lost at gaming;® or to pay for suppressing or stifling a criminal prosecution;^ or to pay an officer for neglecting to perform his duty:'' these and the like contracts are illegal and void. But past seduction and cohabitation may form the consideration of a promise; as the object then is to redress an injury inflicted on the woman.' So, an action for clothes sold to a prostitute,'' or for washing her apparel,^ cannot be defeated merely by showing that the plaintiff was aware of the defendant's unfortunate situation, and from the nature of the articles, the use to which she would apply them. When the contract grows immediately out of, and is con- nected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. But, if the promise is unconnected with the illegal act, and is founded on a new consideration, it is binding, although the plaintiiV knew, and was the contriver and conductor of the illegal act."" Thus: if you are indebted to .T. S. on aeon- tract forbidden and unlawful, and you pay the money to C. for the use of J. S., and C. refuses, contrary to his implied contract, to pay the money to J. S., the law will make him do it. In this case, J. S. could not have recovered against you; but when the money came (a) 1 R. iSl- P.340,341. (b) Cliit. on Con. G9. (b) 1 Camp. 34!i. (i) 2 Wills. 3.i9. (c) eoiiio Rep. 444. (k) 1 Cainpl). J48. (d) 13 Johns. Hep. 85. (I) 1 B. If P. 340. (el Stat. 4-2H, 427. (m) 11 Wliea. 258; Conds. 300. (g) 4 Har. 400. (1) The cases cited by W'niGiiT, J., in 5 Ohio Hep. 58, are reviewed in 3 Pick. 207; and see 3 Bos. & Ful. 249, note [a], 7 Cun. 57; 22 Ei^g. C. L. Hep. 187. §6.] CONTRACTS GENERALLY, 289 to C, a new promise was raised, on a new consideration, not infect- ed with the vice of the original contract. Besides, the law will not permit a third person, ^^'ho is only incidentally connected with the transaction, to set up illegality in the contract between the princi- pal parties, and thus commit a fraud. Money, however, advanced by one person to another, with a knowledge that it is to be applied in the furtherance of an illegal p.urpose, cannot, after it has been so applied, be recovered; for if it be unlawful in one man to pay mo- ney, how can it be lawful in another to furnish him with the means of payment? If a party, who can resist a claim on account of its illegality, waves that privilege and fulfills the contract, he will not be permitted to recover the money bnck,'^ So, in general, where a suit is brought to recover money or damages for not performing a promise, the consideration for which is illegal, or against public po- licy, the court will not interfere for the benefit of either party, but leave the parties precisely where they were when the suit was com- menced.'' Thus: if A gives B one hundred dollars, to bribe him to do an unlawful or immoral act, (as, for instance, to vote for a certain candidate at an election,) which B promises to do; whether B does the act or not, A cannot recover back the money,*^ So, if A pro- mises to give B one hundred dollars, to vote for a certain candidate, and B does it, he cannot recover of A the one hundred dollars. If A delivers to B a horse, upon condition that he will do an unlawful or immoral act, in this case B will hold the horse, free from the con- dition. If A gives B a bond, or covenants to convey a farm to B, as soon as B shall perform a certain unlawful act, here the bond or covenant is void, and whether B performs the unlawful contract or not, he will not be entitled, in law, to claim the farm."^ A security given by an insolvent to a creditor, to induce him not to oppose his discharge under the insolvent debtor's act, is void. All agreements which have for their object a general restraint of trade, whether they be by covenant, bond, or simple contract, and whether with or without consideration, are void; but contracts in partial restraint of trade, such as not to carry on business within a certain town, or within a limited distance, or to deal with particular persons, are legal, if made on an adequate consideration, and the restraint be not unreasonable. It is not unusual, particularly in leases of houses in towns, to in- sert a covenant restraining the lessee from carrying on, or assigninof the premises to persons carrying on, obnoxious trades; and some- times there is a restriction in a lease, that the premises shall only be used for the purpose of one specified trade; as is the case in leases of public houses. It appears that such restrictions are not only legal, but usual and common in some trades. When the illegal act is of such a nature that the good part of the consideration can be separated from that which is bad, and is en- tirely independent of it, the good part shall stand, and the rest be held void. But if the part which is good depends upon that which is bad, tlie whole instrument or promise is void; and this seems to (a) 6 Cow. Rep. 431. (c) Cowp. 341. (b) 1 Hall's Rep. 300. (d) 2 Wils. 133; 5 T. R. 599. 37 290 CONTR.ACTS GENKRALLY. [Prt. 2^ TUk ] 4, he the rule, whether the matter be void by statute, or at common law.* Sec. VII. — iioAv contracts should re construed and performed. In the construction of covenants the Ibllowing rules collected from the authorities, may be found useful. First. When the covenant is expi'ess^ there must be an absolute performance, nor will it be discharged by any collateral matter whatsoever. As if a lessee covenant to p;iy rent, and the premises be rendered uninhabitable by being totally burnt down, or through any other cause, he will continue liable to pay the rent during the term, though he have no enjoyment of the jnemises, for he is bound by his express covenant. And even if the landlord be bound to rebuild the premises, and neglect to do so, it will be no answer to an action for the rent, because the damnges arising to the lessee from such negligence are unliquidated, and the tenant may have his action therefor. The . Second rule is, that covenants are to be so expounded as to carry into effect the intention of the parties; and this intention is to be collected from the whole context of the instrument, so as to make one entire and consistent construction of the wbole. Therefore, if a person performs a covenant according to the letter, and docs any act to defeat its intent, it is not a legal performance. If I covenant that I wiH leave all the timber which is growing on the land I hire, upon the land at the end of the term, and then cut it down, though I leave it on the land; or if I covenant to deliver so many yards of cloth, and I cut it in pieces and then deliver it, my covenant is bro- ken; for the law regards the real and faithful performance of con- tracts. The Third 'rule is, that when ambiguous expressions are used, or when the sense of the words is in eqidlibrio., they are to be taken most strongly against the covenantor. The Fourth rule is, that the contract shall be construed so as to sup- port rather than defeat the transaction. The Fifth rule is, that when no time is limited for the doing of a thing, it shall be done in a reasonable time. It is an established rule, that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he can, notwithstanding any accident by inevitable necessity, be- cause he might have provided against it by his contract. Therefore if a man covenants to deliver a certain quantity of wheat at Cincin- nati, the overturning of the boat by a tempest will not excuse him; the wheat may still be procured and should be delivered. (1) (a) 2 Kent's Coin. 468. See 1 Leigli. 40. (1) See Part 2, Title 32, Sec. 1. §7,8.] CONTRACTS GENERALLY. 291 Bat it is said that if the performance of the covenant be render- ed impossible by the act of God, the covenantor shall be discharged. As if a lessee covenants to leave a wood in as good a plight as the wood was at the time of the lease, and afterwards the trees are blown down by the tempest; or if one covenants to serve another for seven years and he dies before the expiratio^i of the seven years, the covenant is discharged, because the act of God defeats the pos- sibility of performance. So, if a man covenant to deliver a horse to another on request, and the horse die without his default before request, the death of the horse being the act of God, he will be discharged from the performance of his covenant. It is laid down in Rol. Ab., ^'If a man covenant to build a house before such a day, and afterwards the plague is there before the day, and con- tinues there till after the day, this will excuse him for the breach of covenant for the not doing thereof before the day, for the law will not compel him to venture his life for it, but h« may do it after,"' The covenantor will be discharged from his contract, if by any act or omission of the covenantee he be incapacitated to perform it. As if a lease for years covenants to drain the water out of the land, or to build a house before a certain day, and the lessor enters before the day and holds the lessee out. Sec. VIII. OF THE ALTERATION OF CONTRACTS. A contract, (whether under seal or not,) is void, which has, after its delivery, been altered by a party interested, without the consent of the other party to it.* When a person is detected in such a fraud, the law, as a punishment to the guilty party, will not permit him to derive any benefit from the instrument, and therefore holds the party who did not consent to the alteration, discharged from performance. Three things are requisite to render an instrument void by alter- ation: 1. The alteration must be made by the plaintiff, or a party inter- ested in the instrument. If made by accident, or by a stranger, the instrument, as it was prior to its alteration, can be enforced, and will be valid.'' 2. The alteration must be in a material part. The erasure or addition of a word, not aflecting the sense, is of no consequence, though made by the plaintiff, or a stranger, w^ithout the consent of the odier party. The substantial alteration, however, of a mate- rial part by a party interested, discharges the defendant, even if the alteration is a benefit to the latter. 3. The alteration must be made without tlie express or implied assent of those who seek to take advantage of it. All that is meant by a contract being void by alteration, is this: that the party who made the alteration loses all right and remedy (a) Some of tlic niitlioritins go so far na to say the deed as to liim. Slicp. Toucli. G9; 11 that ltiou!,'li tlie ultcralion he iiniiiatcrial, Co. 27; 8 Cow. Kep. 71. yet if done by a party interested, it avoids (1)) 6 Cow. Rep. 746; 15 Jolins. Rep. 297. 292 CONTRACTS GENERAL!, V, [^]*rt. 2, Title 14, upon it; but all other pnrties thereto, have the same right and rem- edy as it" the contract had not been altered. (l) It is said that an erasure or interlineation shall be presumed to have been made alter the execution of the instrument, unless the contrary is shown. "^ But this does not seem right unless there be something suspicious in regard to the interlineations, which may reciuire explanation. 8kc. IX. OF CONTRACTS NOT TO nE rKUFOpMEU WrfHIN ONE YEAR, When an agreement is made for any work, or service, or act, and it is either expressly agreed, or by necessary implication under- stood, that the party shall have more than a year to perform it, such agreement uiust be reduced into writing; lor by statute** it is enacted, "that no action shall be brought upon any agreement that is not to ba performed within one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person there- unto by him or her lawfully authorized." If no time be stipulated for the performance of the agreement, and it is capable of being performed within a year from the making thereof, it is not within the statute; though it be not actually per- formed till after that period. Thus: a parol promise was made, to pay so much money upon the return of such a ship, which ship hap- pened not to return within two years' time after the promise was made; it was held that this promise was not void by the statute, for by possibility, the ship might have returned within tlie year; and that the statute extended only to such promises as are, at all events, or by the exj)ress appointment of the parties, not to be performed within a year.*^ A contract for a year's service, to commence at a subsequent day, is voi,d, unless it be in writing; and therefore no action can be maintained for the breach of a verbal contract made on the 27th of May, for a year's service, to commence on the 30th of June follow- ing.^ In such case a complete performance within a year from the time the contract was entered into, could not by possibility happen. An agreement, however, for goods, to be delivered by one party, in six months, and to be paid for in eighteen months, being after more than a year is elapsed, is binding, though not in waiting; for (c) 1 Dall. 67; 1 Pet. Rep. 369; 5 Bing. 133; (d) Stat. 423, §5 but sec 1 Kil). 22. (e) 1 Salk. 280; 10 John's Rep. 244. 11 East, 142. (g) 11 East. 142; 1 Barn, and Aid. 723. (1) It has been deckled, in New York, that the alteration of a deed for lands, in a material or immaterial part, by one claiming a benefit under it, will not divest him of tlie estate, but avoids siicli covenants as the deed contains; and that such material or immaterial alteration in a bond or other contract, avoids the instru- ment, both as to tlie riglit and remedy of the person making- the alteration. Lewis V. Payn. 8 Cow. 71; but see Corny. Dig., Title Fait. F. (I) As to the alteration of a note or bill of exchange, see Part 2, Title 31, Sec. 16. Tit. 15.] CONTRACTS GENERALLY. 293 all on one side to be performed, viz., the delivery of the goods, is to be done within the year; whereas, in the above instance, the ser- vice or labor could not by possibibty be completed within that period.'^ (a) Id. lb. per Abbott, J. and 11 East, 142. TITLE XV. CORONER'S INQUEST. Whenever the office of coroner becomes vacant in any county, by death, resignation, expiration of the term of office or otherwise, any justice of the peace of the township in which the dead body of any person supposed to have come to his death by violence or casu- alty may be found; or if there should be no justice of the peace for such township, then, any justice of the peace of the county, is vest- ed with all the powers, and may perform the duties, appertaining to the office of coroner, so far as respects the duty of the latter to hold inquisition of a dead body.*^ It therefore becomes necessary, to point out the duties of a coroner, in such cases. Whenever information is given to a coroner, that the dead body of any person supposed to have come to his or her death by violence, has been found within his county, it is the duty of such coroner, to issue his warrant,(l) directed to any constable, of any county, in which such body may be found; or if in his opinion, the emergency shall require it, to any discreet person of the county, commanding such constable or other person, to forthwith summon a jury, of (b) Stat. 526, $109. (1) Form of Wurnint or Venire of a coroner, for a jury: Tlie State of Ohio, township, county, ss. To any constable of said county, [or, to J M , of said county,] greeting: Wlicreas, information has been given to me, G M , a justice of the peace, in and for said townsiiip, (there being no coroner of said county,) that tlie dead body of a man [ar woman]'lias been found at \Jiere desa-ibc Ihe place,] in said township, su|)p()sed to liave come to liis [or her] dcatii by vioknce: You are there- fore commanded to summon twelve jurors, resident of said county, and having tlie qualifications of electors, to appear forthwitli, [or, on the day of , A. D. , at — o'clock, — ,] at said place, where said body was found, and is now lying, to inquire, and true presentment make, as to tlie manner, and by whom the deceased came to his, [or her,] death; and of this writ make legal ser- vice and due return. Given under my hand and seal this — day of , A. D. : G II , J. p., [Seal.] and coroner for the time being. 294 coroner's inquest. [Prt. 2, twelve men of the county, havin CLERKS OF ELECTIONS.® You do solemnly swear, in the presence of Almighty God, the searcher of all hearts, that you will faithfully perform the duties of ■a. judge [or clerk, as the case may /;e,] of this election, according to law, and the best of your abilities; and that you will studiously en- deavor to prevent fraud, deceit, or abuse, in conducting the same; as you shall answ'er to God. (n) Stat. 314, 315, 5,54. 59. (d) Stnt. 310, $37^ fb) Id. 310, 5i36, 37. («) Id. .306,«20. (f.) Id. 314, $53. TITLE XVII. FORCIBLE ENTRY AND DETAINER. I. WHKN, IN WHAT CASES, AND WHERE, AN ACTION FOR FORCI- BLE ENTRY AND DETAINER, MAY RE BROUOHT, II. WHEN NOTICE TO Q,UIT IS NECESSARY, AND HOW GIVEN. III. OF THE WRITTEN COMPLAINT OF THE PLAINTIFF. IV. OF THE ISSUING, SERVICE, AND RETURN, OF THE PROCESS. V. WHAT PROCEEDINGS ARE HAD, AFTER THE PROCESS IS ISSUED, AND REFORE THE TRIAL. VI. OF THE EVIDENCE AND PROCEEDINGS, ON THE TRIAL; AND HEREIN, (A) When the suit is affrrinst a tenant^ for /lohlrng over his term. (B) When the plain I iff cldims (is purch aser under an execution. (C) When t)ie defendant is a settler.^ or occupier.^ without any color of title. VII. OF THE VERDICT OF THE JURY. Vm. OF THE JUDGMENT AND EXECUTION THEREON. IX. OF APPEAL AND CERTIORARI. X. forms; and herein, (A) Notice to leave the premises. (B) Complaint., for forcible entry and detainer. (C) Co7nplaint., by a purchaser on execution. {D) Co?nplaint.,by a landlord against his tenant. (E) Bond for costs.^ when the plaintiff is a non-resident of the county. (F) Warrantor venii-e.^ for a jury. (G) Sut)ifno7is to the defendant. (H) Oath and affirmation of the jury. ( /) Verdicts. — No. 1 . When the action is for forcible entry and detainer, and the jury find the coj/iplaint true. — No. 2. When the action is for forcible entry and detainer., and the jury find the defendant guilty of detainer., only. — No. 3. When the action is for forcible detainer only., and no notice to quit has been gii^en. — No. 4. When the jury confine the verdict to a part of the premises. — No. 5. When the verdict is for the defendant. (K) Jud(;ments.- — No. 1. When the jui-y have found the ivhole complaint true. — No. 2. When the jury have found the de- fendant guilty of detainer only., and that notice to leave., was not given. (L) Writ of restitution, [M) Docket entries. [Prt. 2, Title 17.] forcible entry and detainer. 301 Sec. I. WHEN, IN WHAT CASES, AND WHERE, AN ACTION FOR FOR- CIBLE ENTRY AND DETAINER MAY BE BROUGHT. This is a summary proceeding, to obtain possession of lands, or tenements. It is regulated by statute,(l) and can be had in the fol- lowing cases:* 1 . Against tenants holding over their term. 2. By the purchaser of real estate on execution, after the sale has been examined and adjudged legal by the proper court; the judgment debtor being in possession, at the time of the rendition of the judgment. 3. Against a person who, without any color of title, occupies lands or tenements to which the claimant has the right of posses- sion. 4. Where the entry or the detainer is unlawful, forcible, and by sti'ong hand.*" If two years have expired from the time the claimant had a right to bring his action, he must proceed by ejectment in the court of common pleas. After that time, he can neitiier bring an action for forcible entry and detainer, nor for detainer only.* If, however, a tenant continue upon the land, after the expiration of his lease, by the assent or agreement of his landlord, he is still considered as a tenant, so long as the verbal lease continues. In such case, the ac- tion for forcible entry and detainer should be brought within two years from the time the tenant commenced holding over without the agreement or assent of the landlord. When the complainant is a purchaser on execution, the suit against the former owner should be commenced within two years after the execution of the deed by the sheritf. The statute does not require the proceedings to be had in any particular township; but any two justices of the county where the premises are situate, may try the cause, in any township within the county.^ Sec II. WHEN NOTICE TO QUIT IS NECESSARY, AND HOW GIVEN. When both the entry upon the premises and the detainer of them are forcible and unlawful, no previous notice to the defendant is necessary, before an action is brought. But if the entry of the de- fendant upon the premises is lawful, and he afterwards unlawfully detain thcin, the plaintiff should notify the defendant, at least ten days before the issuing of the writ, to leave the premises. *(2) A written copy of the notice must be left with the defendant, or at his usual place of abode, if he cannot be found.^ As it will be (a) Stat. 421, 519. (b) 8 Ohio Rep. 398. (c.) Staf. 417, $1. (d) 2 Ohio Rep. 255. (e) Stat. 418, 53. (p) Id. 218, $3. (1) The Statute will be found in Stat. 417. (2) Fortlie form of the notice, see §10, (A), of this Title. 302 FORCIBLE ENTRY AND DtTAINKR, [Pri. 2, 2V//e 17, afterwards necessary to prove the service of the notice, some disin- terested person should serve a copy, and retain tlie original. Sec. III. OF THE WRITTEN COMPLAINT OF THE PLALNTIFF, The next step for the plaintilf to take, after giving the notice, (whether the proceeding is founded upon forcible entry and detain- er, or detainer only,) is, to make out his couiplaint in writing, and leave it with two justices of the peace of the county. *(1) The complaint must contain a pnrticular description of the pre- mises claimed, and should state that they are situated within the county.'' Sec IV.— OF THE ISSUING, SERVICE, AND RETURN OF THE PROCESS. No process can be issued, until the written complaint of the plain- tiff has been left with two justices. If the plaintiff do not reside in the county, the justices, or one of them, must, l)efore they issue process on the complaint, take a bond from him, with sutTicient security, in the sum of one hundred dollars, conditioned for the payment of the costs. (2) The bond must be filed with one of the justices, for the benefit of those interested.*^ The complaint being received, and the bond (if any is required) being filed, the two justices must issue their warrant or venire, un- der their hands and seals. (3) directed to the sheriff, or in case of his absence or legal disqualification, to the coroner of the same county, commanding him to cause to come before them, six judicious disin- terested men of the county, who are freeholders therein. *^ At the time the warrant is issued, the justices must also issue a summons to the party complained against, stating therein, the cause lof complaint, and the time and place of trial. ''(4) The summons must be served upon the party, or a copy left at his usual place of abode, at least seven days before the day appoint- ed by the justices for the trial.s Sec. Y. — WH.vT proceedings are had, after the process is is- sued, AND BEFORE THE TRIAL. Previous to the trial, and on or before the day appointed therefor, the warrant and summons should be returned. If the return to (a) Stat. 417, $2. (h") 2 Ohio Rep. 256. (c) Stat. 420, $16. (e) Id. 418, $5. (g)Id. ib. (1) For the form of the complaint, see §10, (B), (C), (D), of this Title. (2) For the form of the bond, see UO, (E ', of tliis Title. (3) For t]ie form ofthe warrant or venire, see §10, (F), of this Title. _; (4) For the form of tlie summons, see §10, (G), of this Title. §3,4,5,e,(A).] FORCIBLE ENTR? AND DETAINER, 303 the summons shows, that it was not served upon the defendant seven days before the day of trial, and the defendant fails to appear, or appearing, makes this objection before the jury are sworn; in either event, judgment of non-suit must be entered against the plaintiff.(l) But if, in such case, the defendant appears, and the jury are sworn, he cannot afterwards take advantnge of this error. By appearing, and permitting the trial to commence, without objection, he waves the objection. When the writ is not served seven days before the trial, owing to the negligence of the officer, he renders himself lia- ble to the plaintiff, who can recover by suit the damages he has sus- tained. If the defendant has been duly served with the summons, and does not appear on the day of trial, the justices must proceed in the cause, in the same manner as if he were present.^ If the plaintirt'or his agent does not attend, judgment of non-suit should be entered against him. (2) If one or both of the justices fail to attend, it will operate as a discontinuance of the suit; and all subsequent proceedings will be irregular and erroneous. (3) If by accident, or challenge for cause, (4) there should not be a full jury; the sheriff, or if he be absent or disqualified, the coroner, must fill the panel vvith talesmen.'' No challenge, except for cause, should be allowed. An oath or affirmation must be administered to the jury, by one of the justices." The justices may continue the suit, from time to time, upon good cause shown; but not more than thirty days, without the consent of both parties.*^ Sec. VI, — OF the evidence and proceedings, on the trial. (A) When the suit is against a tenant for holding over his term. The plaintiff, in order to recover costs, must prove that he gave the defendant the requisite notice to leave the premises. (5) (a) Slat. 418, $5, (b) Id. 419, $8. (c) Id. 418,55. (d) Id. 422, §22. (1) For tlie form and effect of such judg-ments, see p. 102, 103. (2) For the form of such a judgmjnt, see p. 103. (3) See p. 4G. (4) As to what are sufficient challeng-es for cause, see Stat. 492, §14. (5) The statute requires tiie plaintiff', on complaint of detainer onl\', to .q'ive the defendant notice, ten days prior to the conmiencement of the suit, to leave tlie prem ses. Stat. 418, §3. It furllier provides, that where the complaint is for forcihie entry and detainer, and tlie jury find tlie defendant guilty i)f the detainer only, and that the plaintiff did not give tlie requisite notice above mentioned, he sliall not recover costs, but sliall be entitled to judgment of restitution merely. Id. 418, §4. Suppose Ihe plaintiff complains of, and proves an nnhiuful detainer only, but has neglected to give the notice; what shall the jury and justices do' It is be- lieved tliat in sucli case, the plaintilF'is entith-d to a verdict, and judgment of res- titution; but that he cannot recover costs. If tiiis be not a correct construction of the statute, then it follows, that one who falsely charges a defendant with forcible 304 FORCIBLB ENTRY AND DETAINER. [Prt.% Title 11^ If the plaintilT produces the lease, and proves its execution,(l) and it ap[)ear therefrom tiiat the lease expired hefore suit brought, the plaintitfis entitled to a verdict; unless it aj)pear, from the proofs of the defendant, or otherwise, that the term of the lease was ex- tended by agreement, and had not expired at the time when the ac- tion was brought. If there was a written lease, neither party can be permitted, if the other object, to give evidence by witnesses, of its contents; un- less a foundation is laid for such verbal evidence, in the manner heretofore stated.(2) If the plaintiff proves that the defendant went into possession of the premises as his tenant, it will be no defence, nor ought the de- fendant to be permitted to prove, that the plaintilf had no title. If the defendant has procured a good title from a stranger, he cannot set it up against his landlord. A tenant is not permitted to dispute the title under wiiicii he himself is in possession; though he may show, that he did not enter under, or that he is not in fact the tenant of the plaiutitV; or tiiat his landlord's title expired, after the making of the lease.* If the lease was not in writing, but a mere verbal contract, it is binding on both parties, provided the tenant took possession under it precisely as if it was executed according to the prescribed rules of the statute. *" {B) Of the proceedings on trials wlien the plaintiff claims as pur- cJiascr under an c?ceciition. The plaintiff must produce the deed of the sheriff to him, or a copy of it, duly certified from the recorder's office, of the county. If a certified copy is produced, the execution of the original need not be proved."^ The deed, or the copy, must appear to have been attested by two witnesses, and duly acknowledged like other deeds, or it will be void.^ If an original deed is produced on the trial, its execution must be proved in the manner heretofore stated. (3) The deed of the sheriff' is prima facie evidence of the legality of the sale, and the proceedings therein.® If the sale was made with- out levy, or without an execution or a judgment, or if the execution upon which the levy or the sale was made was without a seal, the deed of the sheritfis void.^ In genei'al, the deed of the sheriff" vests in the purchaser as good (a) 3 Ohio Rep. 59. 295. (d) 1 Oliio Rep. 279. 315. (b) 1 id. 252; 3 id. 295. (e^ Stat. 475, §16. (c) Stat. 267, $10. (g) 12 Johns. Rep. 213; 6 Ohio Rep. 12. entry, shall thereby place himself in a better situation, than if he honestly and truly charged the defendant, with detainer only. This could not have been the inten- tion of the legislature. (1) As to the mode ill which the lease .should be proved, see p. 883 84. (2) See pag-e 78. (3) See pages 83, 84. §6, (B).] FORCrBLE ENTRY AND DETAINER. 305 and perfect an estate, as the defendant to the judgment had, on the first day of the term at which the judgment was rendered.* No deed, therefore, or other conveyance, made by the del'endant after that time, can affect the title of the plaintiff! Nor can the defend- ant set up, as a defence to the action of forcible detainer, that he had no title to the premises at the time the judgment was rendered, nor be permitted to show that some other person is the ti'ue owner.*' The purchaser under the execution has a right to hold the possesso- ry title of the defendant, however defective or limited it may be.''(l) The plaintiff', in order to recover, must show, that the defendant was in possession of the premises at the time the judgment was ren- dered."^ (a) Stat. 468, 52, and 475, ^16. (c) 2 Ohio Rep. 224; Wright's Rep. 117. (b) 3 Caine's Rep. 188. (d; Stat. 421, §19. fl) The rule laid down in the text, denies to the defendant, the rigiit to show- that lie had no title at the time the judgment was rendered against him. This ride seems to be well settled. But it is a d.tf'crent question, whetlier he may show, that after the rendition of the judgment, or levy, and after tlie action of forcible de- tainer, lie held, and still continues to hold, possession, by a title foreign to, and un- connected with the title which he held at tlietime of the levy or rendition of the judgment. Upon this question, I find no authorities. II the judgment debtor, when tlie judgment was rendered, or at the time of the levy, held possession by such defective title tiiat he coidd claim from the true ownei- pay for his improve- ments, upon being turned out; he could not, by afterwards procuring a conveyance from the ti-ue owner, thereby prevent the plaintiff from recovei-ing in this action. In such case, the purchaser at slier. fl's sale, obtained a vested right to the improve- ments, and should iiave possession from, the defendant, so as te be able to claim remuneration for iheiTi, from the true owner. A person who has a defective, but adverse title, may claim [)ay for his improvements of the true owner, il in posses- sion witiiout fraud, {first,) under a connected title derived from the records of some public office; or {second,) if he hold possession by deed, devise, descent, contract, bond, or agreement, from and under any person claiming title as afore- said, derived from the records of a public office; or {ihird,) if he hold possession by sale, under an execution, i~suecl against a person who either claimed title as aforesaid, derived from tlie records of some public office, or by deee,] of certain premises in said complaint described, and prays a warrant, summons, qnd restitution. Now if the said A — B — and T — S — shall pay all the costs that may ac- crue in said cause, in case judgment be rendered against the said A — B — , then the above obligation shall be void; otherwise to re- main in full force in law. A B . (.S-er//.) T S . {Seal) Taken by, and executed before me. G H- above named. {F) Form of loarrant.iX) or venire for a jury. The State of Ohio, County, ss. G — H — and R — S^ — , two of the justices of the peace in and for said county of — , to the sheriff, \or in case of his absence or le- gal dlsijualificatioiu say., to the coroner] of said county, greeting: Whereas, complaint is made to us by A — B — , of — county, for forcible [entry and detainer, o?-, forcible detainer, as the case ynayhel^ of the lands and tenements of the said A — B — .(2) You are therefore commanded, on the behalf of the State of Ohio, to cause to come before us, upon the — [Jiere name the day of trial., which should he fixed at such ti?ne as will allow the summons to be serv- ed on the defendant seven days previous to trial^ day of — , in the year — , at — o'clock, A. M., [or P. M., as the case may ie,] at the office of G — H — , in the township of — , in said county of — , six judi- cious disinterested men of the county, who shall be freeholders in the same, to be impanneled and sworn to inquire into the forcible [entry and detainer, or say^ detainer, as the case may ie,] aforesaid. Given under our hands and seals, this — day of — , A. D. 1 8 — . \Signedl\ G H , {Seal) R S , {Seal) r Justices of the Peace. (1) This form is prescribed by the statute, p. 417. (2) The name of the plaintiff is omitted in the form contained in the statute. §10,(F),(G),(H),(I).] FORCIBLE ENTRY AND DETAINER. 311 ' (G) Form of summons to the defendant. The State of Ohio, county, ss. To the sherift" [o?- in case of his absence or legal disqualification^ say^ to the coroner] of county, greeting: You are hereby commanded to summon C — D — to be and ap- pear before us, G — H — and R — S — , two justices of the peace in and for said county, at the office of G — H — , in the township of — , in said county, on the [//ere insert the same hoiu\ day^ and year^ men- tioned in the icarrantJ] to answer unto A — B — , in an action of for- cible [entry and detainer, or say detainer only^ as the case may ie,] of the following premises: [liere describe the jiremises., as in thecom- jjlaint of the plaintijf'.l And of this writ make service, at least seven days prior to the said day above mentioned, for the appearance of the said C — D — , before us, and also of this writ make due return. Given under our hands and seals, this — day of — , A. D, 1 8 — . [Sigyied,] G H , (Seal.) R S , (Seal) Justices of the Peace. (H) Form of the oath to be administered to the j my. You, and each of you, do solemnly swear, in the presence of Al- mighty God, the searcher of all hearts, that you will well and truly try, whether the complaint of A — B — , now laid before you, is true, according to the evidence: So help you God. Form of affirmation to the jury. You do solemnly and sincerely declare and affirm, that you will well and truly try, whether the complaint of A — B — , now laid be- fore you, is true, according to the evidence: And this you do, under the pains and penalties of perjury. (/) Forms of verdicts.{\) No, 1. — Form of verdict where the action is for forcible entry and detainer.^ or detainer only., and the jury find the complaint true. We, the jury, do find that * the defendant is guilty, in manner and form as the plaintiff hath, in his complaint, set forth; and that the same, and the matters therein stated, arc true. (1") The jury, in order to prevent all mistakes, sliould make out their verdict in writing', and sifjn it, before they render it; oi', when they have made up their opiti- ion, the justices may, while the jury are together, and before the verdict in finally received, reduce it to writing-, and let them sign it. 312 FORCIBLE ENTRV AND DETAINER, [PrLI^ TUhM ^ The same form ns the preceding, is the proper one, where the action is tor forcible detainer only, and due notice has been given the defendant to leave the premises, ten days prior to the commence- ment of the suit. No. 2. — Forin of the Verdict^ wJic7'e the action is for forcihlc miry and detainer^ and the jury Jind the defendant guilty of detainer only. We, the jury, do find that the defendant is not guilty of an unlaw- ful and forcible entry, as complained against him. We further find, that * the defendant is guilty of an unlawful and forcible detainer only, in manner and form as the ])laintiiT has, in his complaint set forth. We do further find, that the plainlilfdid, [or say, did not, as the case may 1h\'] notify the defendant, ten days prior to the issuing of the writ in this cause, to leave said premises, as required by law. No, 3. — Form of the Verdict., when the action is for forcible detain- er only., and no notice to leave has been given. We, the jury, do find that * the defendant is guilty, in manner and form as the plaintiff hath, in and by his said complaint, set forth. We do further find, that the plaintilf did not notii'y the defendant ten days prior to the issuing of the w-rit in this cause, to leave said premises, as required by law. No. 4. — If the jury desire to conjine their verdict to a. particular portion of the premises described, in the complaint, {which icill seldom Iiappen.) add, at the star^ in any of thepre- ceding J'urms, th e follou:ing : "The defendant is not guilty, as complained against him, of for- cibly [entering and] detaining any other part or portion of the premises described in said complaint, except the following: [here must be described the particular part of the premises which the jury find that the defendant has forcibly entered, or detained, or both ; and this description must be as full and complete as the description is requir- ed to be, in the original complaint of the plaintiff . After the description., say.'] and as to the premises last mentioned and described, part of the premises described in said complaint, we, the jury, do find, that r&c, he7'e proceed from the above mentioned point., *, in the forms of the verdicts., to the end, according to the truth.'] No. 5. — Form of Verdict for the Defendant. We, the jury, do find the defendant not guilty. §^OiO)i(K),(L).] FORCIBLE ENTRr AND DETAINER. 313 (K) Forms of Judgments. No. 1. — Wlien the jury Jind the whole complaint true; whether the action is brought for both forcible cntrxj and detainer., or detainer only. It is therefore considered by us, the said justices, that the said plaintiff have restitution of the premises mentioned and described [in his said complaint; or, if the verdict of the jnrij is for only part of the pre?}iises, say, in the said verdict of the jury;] and recover of said defendant, the cosfs herein, taxed at — dollars, — cents. No. 2. — For7n of judgment for the jilaintiff, when the verdict of the jiiry finds the defendant guilty of detainer, and that no- tice to leave the premises, was not served on the defendant. It is therefore considered by us, the said justices, that the said plaintiff have restitution of the said premises mentioned and de- scribed [in his said complaint; or, if the verdict of the jury is for part only of the premises, say, in the said verdict of the jury.](f) {L) Form of the Writ of I{estitution.(2) The State of Ohio, county, ss. G H- and R S , tw^o of the justices of the peace in and for said county, to the sheriff of said county, greeting; Whereas, at the court of inquiry of forcible entry and detainer, [or, an unlawful and forcible detainer, as the case may be,'] held be- lore us, at the office of G H , in the township of — , in said county of — , on the — day of — , in the year — , the jurors, impan- neled and sworn according to law, did return their verdict of guilty. Whereupon, it was considered by us, that [the said?] A — B — should have restitution of the premises following: [here describe the preinises to be restored, as particularly as they can be, or are described in the proceedings^ Therefore, we require you, that taking with you the force of the county, if necessary, you cause [the said?] C — D — to be forthwith removed from the premises; and the said A — B — to have the peaceable restitution of the same: * [That part of the (1) The judgrnent for costs must be omitted; each party being bound to pay the costs by him made. The costs will tliercfore be apportioned as follows: Each party must pay the costs of all the writs which issued at his instance, and the costs of serving- tht-m; and the fees of his own witnesses. The plaintiff must pay for the issuing and service of the warrant, and the fees of the jury; and the costs at- tending tlie issuing and service of the writ of restitution. Eacli party will be liable to the separate suit of those to whom they owe the fees or costs. (2) The form of this writ is prescribed by statute, p. 419. 40 314 FORCIKLK ENTIiy AND DKTAINKR. [^F I't. ^2^ Title \1 ^ writ which is belwcan the two atars^ slioahl br omitted^ in case the plain- tiff is not entitled to recover costs-] tind also, that you levy of the goods and fhattols of the said C — I) , the sum of — , being the costs taxed against him, in the trial aforesaid, together with — , for this writ; and satisfy yourself your leijjal fees; and for want of such goods and chattels of the said C — D , by you found, you are commanded to take the l)ody of the said C — D , and him com- mit to the common jail of said county, there to remain until he shall pay the sum aforesaid, together with all the fees arising on the ser- vice of this writ, and until he be discharged by due course of law; * and make return of this writ, with your proceedings thereon, with- in twenty days from the date hereof. Witness our hands and seals, at the township of — , in the county of — , aforesaid, the — day of — , in the year — . C; II , (Seal) Justices oi the Peace. (M) Docket entry. {\) The State of Ohio, County, ss. A B , ) vs. > C D- Proccedings. under the act to regulate the action of forcible eiv ti'y and detainer, had before me, G — II , a justice of the peace in and for the township of — , in said county, and R — S — , a justice of the peace in and for — township, in the same county. [Signed^ G H , R S . May 4, 1847. Tlie said A — B — made complaint in writing, to us, the aforesaid justices, and which complaint is in substance as fol- lows: [liere copy out the complaint in full.] The said plaintilf being a non-resident of the county, a bond, with T — X — , as his surety, was duly taken by the said G — H — , and filed with him; and there- upon, on the same day, 3Iai/ 4, 1847, we, the said justices, issued a summons to the defendant, on said complaint, duly filed with us, for appearance and trial, at the office of the said G — tl — , in the town- ship of — , in said county, on the 15th day of J/a?/, 1847, at 2 o'clock, P. M. At the same time, (Mai/ 4, 1847,) we issued a warrant for a jury, to appear at said time and place of trial. Both writs deliver- ed to the slieriiT of this county. (1) Tlie proceeding's in the action should be entered in the docket of one of the justices before whom the cause is tried. §10, (M).] FORCIBLE ENTRT AND DKTAINER. Si 5 May 15, 1847, 2 o'clock^ P. M. At the time nnd place above designated for trial, we the said justices, met, and the parties ap- peared. Summons returned by sheriff'. '•'•May 5, 1847, Personally- served, by reading to the defend; nt. Fees, — . M — A — , Sheriff." Warrant, also, returned by the sheriff". [Ilcre copy tlerehirv, u:ith the names of the jury.'] AH the said jurors, except A — L , ap- peared. The said jurors who appeared, and L — W — , a talesman, in the place of said A — L-^, were duly impanneled and sworn, and the parties proceeded to trial. The complaint was laid before the jury, and after b.earing the evidence, &c., the jury returned their verdict to us, the said justices, as follows: [^lici-c copy out the verdict; and then enter the Judg7iient.^ as directed in the preceding forms. TITLE XVIir. FRAUDS.(l) SECTION I. WHEN A SUIT MAT BE MAINTAINED EOR THE ASSERTION OE A FALSEHOOD. H. OF SALES, &C., MADE BY DEBTORS TO DEFRAUD CREDITORS. Sec. I. WHEN A SUIT MAY BE MAINTAINED FOR THE ASSERTION OF A FALSEHOOD. Many things may be reproved in sound morals, whicli are left, by the law without remedy, except by an appeal to the conscience of the party himself. As a matter of honesty, any deviation from the most exact and scrupulous sincerity, is repugnant to the good faith that ought to prevail. But in civil tribunals, a person cannot be allowed to complain of trifling deviations from good faith in the party with whom he has contra'cted. It should, therefore, be always borne in mind, that he who adopts the law of the land, as the only- guide in his, dealings, or the only rule for his moral conduct, is nei- ther a good neighbor, nor an honest man. A falsehood, which, in law, will render the person guilty of it, lia ble to suit, must be accompanied by the following circumstances: FirsL—^Thc party asserting the falsehood, must know at the time he makes the assertion, that it is a falsehood. Tlierefore, when a person asserts a thing which he believes to be true, but which, in fact, is false, whereby nnother is deceived, and injured, he is not, in general, liable therefor. Thus: A represented to B, in good faith, that C was in good credit, and responsible, and B was thereby in- duced to trust C, for a largo amount, and lost the debt, in conse- quence of C being at the time, insolvent; it was holden, that A was ^ot liable for tlie misrepresentation.* (a) 2 East, 92; 27 Eng. C. L. Rep. 194. (1) As to the fraudulent misrepresentation of the quality of articles sold, see Title 32, Sec. 6. [Prt. 2, Title 18, §1.] frauds. 317 Second. — The party asserting the falsehood, must at the time in- tend to deceive,* Fraud consists in intention.'' Third. — The falsehood must be, not only in something material, but it must be in something, in regard to which, the one party pla- ces a known trust and confidence in the other. For, if the false- hood be of such a nature, that the party deceived by it had no right to place reliance upon it, and it was his own folly, in consequence of his not exercising common sense, and ordinary discretion and sagacity, that he was deceived, he cannot maintain an action for the injury. Thus: where a party, upon making a purchase for himself and his partners, fdsely stated to the seller, to induce him to make the sale, that his partners would not give more for the property than a certain price; whereas, in truth, they expected and intended to give more; it w^as holden, that it was the seller's own indiscretion to rely upon such false assertions.*^ The common language of puffing and commendation of articles, in relation to such things as are equally open to the observation, examination, and skill of both parties, and upon which, it is understood, that every buyer exercises his own judgment, comes within the rule above laid down; inasmuch as no one is supposed to be deceived by such false assertions. Fourth. — The party complaining of the deceit, must be misled by the falsehood; for, if he knows the assertion to be false when made, it cannot be said to influence his conduct. Fifth. — The falsehood must constitute an inducement, or motive, to the act, or omission, of the party deceived. Thus: if you are ignorant of the credit and responsibility of A, and C knowing him to be insolvent, represents his pecuniary circumstances to be good, in order to deceive you, and to induce you to trust him, and you are thereby deceived, and are induced to trust him, and suffer q, loss, you have your remedy against C/ Sixth. — And lastly; the party deceived must be misled to his injury; a damnge must result, from the party deceived acting on the faith of the falsehood.(l) (a) 2 Wend. Rop. 380; per Suthkrland, J.; 3 (c) 12 East, 637. Kent's Com. 4!56, 487. T. U. 51 . (d) 8 Johns. Rep. 19; 3 T. R. 51. (b) 5 Crancli, 351, per Marshall, C. J. (1) 2 Kent^s Com. 483; 7 Wend. 9; 2 Td. 3S5. In connection with the subject of (rand, it m:iy be lieie remai kcd, as a g-encral rule, applicable to a variety of cases, that, where one man re[)oses in another a special confidence, and a loss arises from the abuse of that confidence, if the ([uestion, who shall bear the loss? arises, between an innocent third person, and him who reposed the confidence; the law will throw the loss upon the latter, — Chilly's Con. 224, {3d Jim. Ed.) 318 FiiAims. [Prt. 2, Tille 18, Sec. II. OF SALES &:C. MADE BY DEUTOIIS TO DEFRAUD CREDITORS. The statute of Olilo provides,* '-that all deeds of gift, and con- veyance of goods and chattels, made in trust, to the use of the per- son or persons making the same, shall he void and of no effect; and that every gift, grant, or conveyance, of hinds, tenements, heredit- aments, rents, goods, or chattels, and every hond, judgment, or exe- cution, made or ohtained with intent to defraud creditors of their just and lawful dchts or damages, or to defraud or to deceive the person or persons who sh:dl purchase such property, shall be deemed utterly void, and of no effect." The statute further provides,'' "that where any loan of goods, or chattels, shall be pretended to have been made, to any person wuth whom (or those claiming under him) possession shall have remained for the space of five years, such goods and chattels shall be deemed the property of the person having had such possession; unless a reservation of the right of such goods and chattels shall have been made, to the lender, in writing, and such writing shall have been recorded within six months from the time of making such loan, in the recorder's office of the county where one or both of the par- ties shall then have resided. Any assignment or transfer of property, made by an applicant for relief under the act for the benefit of insolvent debtors, after his arrest, and previous to his examination before the commissioner of insolvents, is void.*^ The details, or circumstances which shall constitute a fraudulent or void sale, as against creditors, seem to mock th(^ efforts of a gen- eral rule. The fraudulent arts and devices by which a sale, or a iieu, may be compassed and disguised, are so various, that the evi- dence to establish or to repel them, must, almost always, vary with the cases, as they arise. A few of the leading rules upon this subject, will be here collected. An absolute bill of sale, is one, Avhich, on its face, appears to con- vey a complete and absolute title and ownership of property to a buyer, without reserving any right, use, or possession, to the sellei-. When such a bill of sale, or a verbal sale, of such a kind, is made, and the seller retains possession of the property, it is void, as against the creditors of the seller; unless the buyer can show that the transaction w'as fair and honest, and that the possession was re- tained for a fair, honest, and reasonable purpose."^ So, a voluntary sale of chattels, or a mortgage of chattels, with an agreement in, or out of the bill of sale or mortgage, that the seller may keep pos- session, is also void, as against creditors; unless the buyer, or mort- (a) Slat. 422, 51.2. (d) Wrisl.t'8 Rep. 136. 359. 190. 213. 439; (b) Id. ib. $3. 3 Cow. Rep. 189; 2 Wend. Rep. 446. (c) Id. 442, $12. §2.] li'RAUDS. 319 gager can show that the transaction was fair and honest, and that the possession was retained, for a fair, honest, and reasonable pur- pose/ So, if a creditor seize and sell by an execution, the goods of his debtor, and he, or any other purchaser of them, suifer them to remain in possession of the debtor, they will continue liable to subsequent executions against him; unless the circumstances under which he lias the possession, are known in the neighborhood, and unless such possession was -retained for some fair, honest, and rea- sonable purpose, to be shown by the purchaser.'' In all the above cases, it will be perceived, that proof of the seller remaining in possession of the goods, is, in and of itself, conclusive evidence, that the sale is void, as against a subsequent creditor who levies on the goods. No other, or iurther evidence, on the part of such subsecjuent creditor, is necessary, to establish the fraud; and the justice must declare the sale void, as to such creditor, unless the buyer shows the sale to have been honest, and that the possession was retained by the seller, for a fair and reasonable purpose, &c., as above mentioned. When individuals combine together to commit a fraud, they often show an over anxiety, to accompany that part of the transaction which appears honest, with more solemnity, form, or notoriety, than ordinarily attends it when the object in view is honest. For instance: if an attempt is to be made to protect property from cred- itors, by a sham sale, the parties will, perhaps, execute a bill of sale, in due form; deliver and re-deliver the property in the presence of a witness, to whom they will explain the right of the seller to the possession. These things, men are not apt to do, if they are deal- ing with honest intentions; nor is it the common mode adopted by lionest men, in the sale or purchase of property. Such, or the like circumstances, are, therefore, in general, satisfactory indications of fraud; and are conclusive, if no good reason appears why the sale was not made in the quiet and common mode in which men deal together. If a parent give his child property, and at the time of the gift, owes debts, the pi'operty will, in general, be liable to their pay- ment, and the gift void. When, however, there is no fraudulent intent, and a gift is made to a child, if the parent is, at the time, in prosperous circumstances, unembarrassed, and the gift a reasonable provision, according to the age and condition in life of the child, and leaving enough for the payment of the then existing debts of the parent, the gift is good and valid, as against those debts, even if the parent afterwards become insolvent.' A voluntary conveyance, in consideration of love and affection, by a parent to a child, is void, only, as to antecedent, and not sub- sequent creditors, unless made with a fraudulent intent, to protect the property from the paynient of debts,^ (a) 2 Kent'rt Com. 623; 3 Cow Ktp. 189, ii. (Ii) 15 Johns. Rep. 42(5; 3 Cow. Hep. 272; 1 Ld, (1); 9 Johns. Kep. 338. Uayni. 724; 2 Bos. and I'ul. 5d; 10 Kng. (c) Story's Equity, .360. 354; 11 Wheat. 211; C. L. IJfp. 432; 5 Id. 1«7; 1 M. and 8. 5 Ohio Kcp. 121. 251; 4 Taunt. 823; 8 Id. 838. 'd) 8 Wheat. 242. 320 FRAUDS. [PW.2, rz7/el8, §2.] When a transfer of property, by sale or mortgage, has been made, with a view for the purpose of preventing the creditors of the sel- ler from collecting their chiims, the justice nnist declare it void, even though the buyer ])aid a full and valuable consideration for the property, and took and retained i)ossession of it.*^ But cases of this sort are carefully to be distinguished from others, v^'here a sale or assignment, or other conveyance, merely amount to giving a preference in payment, to another creditor ;S or where the assignment or conveyance is made for the benefit of all creditors. Such preference, and such general assignment or con- veyance is not void;S but if made to trustees in contemplation of insolvency, with the dosign to give such preference, a court of chancery will distribute tlie property equally among all tlie cred- itors.'^ It must be observed, that although conveyances and transfers of property, made to defeat or defraud creditors, are void, as to exist- ing creditors, they are perfect, etiectual, and binding, as between the parties to the conveyance or transfer, and cannot be set aside by the seller or mortgager, if he should become dissatisfied with the transaction. A conveyance of this sort is void only, as against creditors, and then only to the extent in which it may be necessary to deal with the property for their satisfaction. To this extent, and to this only, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditors, and the conveyance stands. If the person who fraudulently holds property, in the manner above mentioned, sell it to a third person, who buys it in good faith, without having notice of the fraudulent transfer, he will hold it free from the claiui of the creditors.' (e) 3 Co. 81; Cowp. 434: Burr. 474, 475; 14 (li) Stat. 717, §68. Mass. Rep. 245; 12 Id. 456. (i) 1 Ohio Kep. 479. (g) See Slat. 718, note. TITLE XIX. GUARANTY, AND PRINCIPAL AND SURETY. The contract of surety takes place, when one person, to obtain some trust, confidence, or credit tor another, engages to be answer- able for him. The person for whom the surety is answerable, is called the principal debtor, A Surely^ is one, who, in order to ob- tain for another some trust, confidence, or credit, engages to be an- swerable for him. The Priacipal^ is the person for whom the surety engages. SECTION r. n. HI. IV. V. vr. OF THE Manner in which sureties May contract. WHAT PROMISES COME WITHIN THE STATUTE, AND MUST BE IN writing; and what do not. OF THE CONSIDERATION FOR THE PROMISE OF THE SURETY. WHAT IS A SUFFICIENT AGREEMENT IN WRITING, UNDER THE STATUTE. OF THE EXTENT OF THE CONTRACT OF SURETY. HOW THE SURETY MAY BE DISCHARGED BY THE ACTS OF THE CREDITOR. OF THE RIGHTS AND REMEDY OF THE SURETY AGAINST HIS PRINCIPAL. OF CONTRIBUTION. Sec I. OF THE MANNER IN WHICH SURETIES MAY CONTRACT. The statute of this State "^ requires, "that upon any special pro- mise to answer for the debt, default, or miscarriage of another, the agreement, or some -Hicmorandum or note thereof, siiall be in writ- ing, and signed by the party to be charged therewith, or by some other persmi, thereunto by him lawfully authorized." A verbal agreement, therefore, to answer for the debt, default, or miscarriage of another, comes within the operation of the statute, and is void. (a) Stat. 423, $5. 41 322 GUAiiANTr. [Frt. '2, Title \% Sec. II. — WHAT puomisks comk within the statute, and must be in WIUTINO; AND WHAT DO NOT, First. If the princii):il debtor be not entirely discharged under the ])romise and undertaking of the surety, the Mgreenient of the surety, if not reduced to writing, will, in general, be void." Thus: A owes you; and H agrees with you, that if you will forbear to sue A, ten days, he will pay the debt of A, and you wait accordingly; this jMoniise is void, unless in writing. A would have still remain- ed liable for the debt, even if tlie agreement of 1> had been in writ- ing. ""So, if B should ask you to sell goods to A, and promise that A would pay for them; or promise, that he (B) would pay for them if A did not; and you should sell the goods to A; this promise of B' Avould be void, for the reason, that it is a promise to pay another's debt, and of course should be in writing. Second. But when the contract of the surety extinguishes the first contract, so that the first debt no longer exists, the second con- tract is binding, although not reduced to writing.'' Thus: A owes' you, and B agrees that if you will release the debt, or will let A out of custody, on an execution issued upon the debt, (the elfect of which is to discharge the judgment,) he will i^ay the debt, and you do it accordingly; B will be bound by the ])romise, although there be no written agreement between you and him. The debt of A, by such an agreement, is extinguished. Third. If a person promise to answer for the debt of another, in consideration that a lien which that other has for the debt, shall be given uj); this promise, thus founded upon a new consideration, independent of the original debt, is binding, though not in writing, and though the original debt remain."" Thus: when a plaintiff has attachedor taken goods on execution; or a mechanic, tavern keep- er, pawnee, or other person, has a lien on the goods of another, for a debt, or work, and you promise to pay such person the debt if he will deliver up tlie goods, which he does accordingly; you are bound by your promise, though not in writing. Fourth. And so, when a promise to pay the debt of a third per- son arises out of some new^ consideration of benefit to the promiser, or harm to the promisee, moving to the promisor, either from the promisee, or the original debtor; such j)romise will be binding, though not in writing, and though the original debt still subsist. Thus: where A owed S, and B, in consideration that A delivered him hay to the value of the debt, verbally promised to pay S: it was holden, that B was bound by his promise, the hay having been delivered."^ (a) 2 T. R. 80, 81; I.il. Ray. 1035; 2 Eng. C. 660; 1 Wils. 305; 25 Eii. 121. 324 GUARANTY. [Prt. 2, Title 19, whom the debt is due, is not made to .srcinr its p:i}'mcnt. Thus: if there is a suit b}^ A auainst you, and J3 promises A to jiay him lifty dollars, if he will withdraw the suit, and he does it; Ji is liable on his promise, thour debts due from the wife before the marriage, the suit after the marriage, must be against the husband and wife." A married woman cannot be sued without her husband, even where she is sole executrix or administratrix of an estate.** Where the wife .alone commits an injury to the property, person, or reputation of another, either before or after the marriage, they must be joined; but if the act be jointly done by the husband and wife, it is safest to sue the husband alone. ^ (B) JVhen the iLusband must lye sued alone. In any, suit upon the contract of the husband, or for any injury done by him, it is clear that he must be sued alone. (C) When the icife may he sued alone. The wife cannot, at law, be sued alone, except when she is vest- ed with all the rights and powers of an unmarried woman. (3) (a) 4 Petersfl. Ab. 36. . (e) Com. nii., Buron and Feme, Y; Ye!v. 165, (b, J=i;it. 6f>S. $'55. KJfJ; 5 Eiig. C. L. Kep. J2.'; Wright's (C; S Jo lis Hep. 1 1.5: 7 T. R. 344. 3 16, n. (a). Rep. 9. (di Arch. PI. and Ev. 61. (1) TI.M'<: "./'/,e 5, 1847 — I'liP cU-alli of t!ie pluliitiff; \ B , stlg- ge.scfl liy (■ n , Ills widow )" (2) For llic lorin of tne eiilrv on the docket, in such case, see page 24, note Tlie estate of llie Imsbaiid will be liable for the costs made by him, aud the de- fendant will be li.ihle lor lus own costs. (2) See page 342. §6,(A),(B),(C),(D),7,8.] HUSBAND and wife. 345 (D) Who to be sued^ upon the death of the hushand and wife^ and the ejfect of such death upon suits pending. Upon the death of the wife, the husband, as we have seen, is im- mediately discharged from his liabihty upon all contracts made, or injuries committed by hei% before the marriage, unless judgment has been obtained against him and his wife, before her decease.(l) If she die before judgment, the suit cannot proceed, but abates.(2) The plaintiff and the husband will be liable for the costs by them respectively made; but, if in such case, the wife survive him, his death may be mentioned upon the docket(3), and the cause proceed to trial and judgment against the wife.* Where the husband dies before judgment is obtained against him for the debts of the wife, she may afterwards be sued, or if he sur- vive her, the debt may be collected of her administrator, as in other cases. Sec. YII. — -of the effect of improperly joining or omitting husband or wife as plaintiffs or defendants. As suits brought before justices of the peace may be appealed to the court of common pleas, and advantage there taken, by plea in abatement or on the trial before the jury, to the improper joinder or omission of husband or wife as parties; it is in all cases advisa- ble, and least expensive for a party, whenever he discovers that he has committed an error in relation to the parties to the suit, to suf- fer a nonsuit, and commence a new action. Sec. VIII. — of the effect of the marriage of a female upon a SUIT brought by, or against her. If an unmarried woman commence a suit, or be one of the plain- tiffs, and afterwards and before judgment, marry, a nonsuit should be rendered in favor of the defendant.'' But no advantage could be taken of the marriage, after judgment, except on appeal to the court of common pleas. No execution, however, could issue on such judgment; but an action of debt might be brought on the judg- ment, making the husband and wife plaintitFs to the action.'^ In an action brought against a womnn who marries pending the suit, the plaintiff may proceed to trial, judgiriont, and execution, in the same manner as if she had not intermarried.'^ (a) 3 p. Wins. 409; 3 Mod. 186; Stat. 668, $85. (c^ 2 Arch. Prac. B. R. 82. (b) 7 Ohio Kep. 179, 180. (dj Cro. Jac.3'23; 4 East. 521; 3 Bl. Com.414. (1) See pages 34.3, 344. (2) For tlie foim of the entry on the docket, in such case, sec pag^e 24, note (IG). (3) 'I'lius: ''June 1, 1847.— The death of the defendant, A B , (Jlic husband,) suggested by the plaintiff." 44 TITLE XXII. INFANTS; AND HEREIN, SECTION I, AVHO ARE INFANTS. II. OF THE LIABILITY OF AN INFANT, FOR NECESSARIES. III. AS TO OTHER CONTRACTS BY AN INFANT. IV. OF THE CONFIRMATION OF A CONTRACT BY AN INFANT, AF- TER HE ARRIVES AT FULL AGE. V. OF THE LIABILITY OF A PERSON WHO CONTRACTS WITH AN INFANT, VI. HOW INFANTS SHOULD SUE AND BE SUED. Sec. I. WHO ARE INFANTS. The age of twenty-one years for males, and eighteen for females, has been fixed by law as the period when an absolute and unlimi- ted legal ability to contract and make deeds shall commence.^ Sec. II. OF THE LIABILITY OF AN INFANT FOR NECESSARIES. The general principle of law is, that the contract of an infant, however fair and conducive to his interests it may be, is not bind- ing on him unless the supply of necessaries to him be the object of the agreement, or unless after he has attained the age of majority, he confirm the contract. If the infant live with his father or guar- dian, and their care and protection arc duly exercised, he cannot bind himself even for necessaries.** The question, what are necessaries, depends upon the real cir- cumstances, and wants of the infant, and not upon his apparent situation; and therefore, in general, the tradesman who trusts him is bound to make due inquiry, and if the infant has in fact been properly supplied by his friends or others, the tradesman cannot recover.*^ An infant is liable for food, lodgings, medicine, and education, at fair and reasonable prices, and for such quantities of apparel, and of such a quality, as may be conformable to his estate. The term "necessaries" is not, therefore, to be strictly confined to such things as are absolutely necessary for mere support, education and cloth- ing, but is a relative term, depending upon, and to be construed in reference to the wealth and a^e of the infant.^ (a) Stat. 438. (b) 2 11. Bla. 132.';. (c) 14 Ens. C. L. Rep. 232; 1 Esp. 211; 25 (dj 1 Esp. Rep. 211; 8 T. R. 578; 5 Esp. 28 Eng. C. L. Rep. 600. 152. [Prt. 2, Title 22, § 1 , 2, 3.] infants. 347 Necessaries for the wife and chiildren of an infant are deemed necessaries for iiim.^ The infant is not bound to pay for the articles furnished, more than they were reasonably worth; nor can he be prevented by the form or terms of the contract, from inquiring into their real value. Sec. III. AS TO OTHER CONTRACTS OF AN INFANT. All contracts of an infant, except for necessaries, are in general, either void or voidable. A void contract is one which is not, and never can be binding. Such a contract cannot, therefore, be confirmed or rendered valid at any other time. A voidable contract, so far as relates to an infant, is one that is binding on others, until it is disaffirmed or denied by the infant, who can avoid it by plea of infancy, or may, after he arrives at full age, confirm it, and thereby render it binding upon him.'' What contracts of an infant are void, and what are merely void- able, no one knows. The most reasonable and definite rule that has been laid down, is this: When the court can pronounce the contract to be to the infant's prejudice, it is void; but if the eflect of the contract upon the infant's interest be uncertain, or for the ben- efit of the infant, it is voidable only, at the election of the infant.*^ A late writer upon this subject, (Bingham.) insists that "all deeds, acts, and contracts of an infant, except an account stated, (1) a warrant of attorney, a devise of lands, a release as executor, and a conveyance to his guardian, are voidable only, and not absolutely void." It has, liowever, been decided, that a negotiable note given by an infant for necessaries is void:''(2) and his acceptance of an order or bill of exchange;^ and his bond with a penalty ;§ and his contract as a surety for another,'' are void. The law does not consider an infant as having sufficient discre- tion to carry on a trade or business; consequently, he is not liable for goods sold to him, or work done for him, or on a contract enter- ed into by him, in his trade or business.' Neither does the law deem him possessed of sufficient discretion to apply money placed in his hands to purchase necessaries; consequently, he is not liable (a) 1 Str. I6R. (g) 8 East. 331; Co. Lit. 172, (n); 3 M. and S. (b) BinEliaiii.g; 2 Esp. 480. 482. (c) 2 Kents Com. 2.J6: 2H. ni.Sll. (h) II Ser. and R.305. (d) 11 Johns. Rep. 33; 1 Campb. 552. (i) Dine, on lnf 9; 2 Kent's Com. 233; 14 Eng. (e) 1 Campb. 552. C. L. Kep.307; 9 Id. 256. (1) The nature of an account stated is this: Parties meet, discuss tlicir several claims, ami strike and agree upon a balance. (2) Hut in such case, the infant could be sued on the account for the necessaries furnished. 348 INFANTS. [Pn.% Title 1'2^ for money delivered to him for such purpose, allhough with it he purchase necessaries.''(l) An infint may protect himself from the performance of a con- tract, although he fraudulently represented himself to be of age, or otherwise deceived the other party to it.(2) Where an infant does work in payment of his contract, or pays money upon his contract, he cannot by avoiding it, get back the money, or recover a compen- sation for his work. He can only avoid his contracts so far as the same remain unexecuted.'' He is liable for an assault and battery, trespass to real or personal property, for embez/.ling money," for wilfully and hUenlionaUy in- juring an animal hired to him,'' (but not for killing it by mere severe usage)® and for all wrongful acts of a like nature. In such cases, his infancy is no protection if he has arrived to years of discretion. Sec. IV. — OF the confirmation of a contract by an infant, af- ter HE ARRIVES AT FULL AGE. A void contract can only be revived by a new contract; but a voidable contract mny become binding upon an infant, by his affirm- ing it or assenting to its validity, after he arrives at majority. As to what circumstances are sufficient to show that the infant, after arriving at full age, has dissented from, or assented to the contract, no definite rule is established. The situation of the in- fant when the contract was made, and his acts after his majority, may raise a sufficient presumption that he has assented to the con- tract, though he may have said nothing. As where an infant was a partner, and continued to deal with a creditor of the firm, after full age, it was holden to be a confirmation of the contract, to pay debts of the firm, contracted with such creditor during the infancy. The promise confirming the contract, must in general, be either in express wdrds, or positive actions in favor of the contract, or by such silent assent as clearly shows an acquiescence. Sec. V, — OF the liability of a person who contracts with an INFANT. If a person enter into an agreement with an infant, he cannot avoid the contract, unless indeed the infant himself hath disafhrmed (a) Salk. 279. (d) 2 Wend. Rep. 137. (b) 8 Cow. 84; 8 Taunt. 508. (e) 3 Ravvle R. 351. (c) 1 Esp. 172. (1) In such a case, a court of equity will relieve. 1 Pr. Wms. 558. (2) 1 Johns. Ca. 127. But where an infant obtained goods upon such fi-audu- lent declaration, though he avoided payment of the price of the goods, it was holden that the seller might retake the goods or bring an action of trover for them, in the same manner as if not sold, for by reason of the fraud, he did not part with his right to them. 15 Mass. Hep. 350. §4, 5, 6.], INFANTS, 349 it, or it be otherwise void. Hence, it is laid down as a general rule, that infancy is a personal privilege, of which no one can take ad- vantage but the infant himself, or his executors or administrators.* Sec. VI. — HOW infants should sue and be sued.^ An infant cannot sue except by his guardian, or by "his next friend, who must be named in the process, and on the docket.(l) The person who is named as next friend is liable for costs, if judg- ment is rendered against the plaintiff. An execution, however, can- not be issued against him on the judgment; but after the costs are demanded of him, he will be liable to the separate suits of those to whom the fees and costs are due.'' The next friend or guardian may, it is said, recover of the infant the amount of costs paid by him."^ If the suit is against an infant, process issues against him, and he is named party defendant on the docket in the same manner as if he were of full age. At the appearance day of the summons, or on the return of the capias with his body, the justice should require him to name a guardian to defend the suit. If he will not name one, or fail to appear at the return of a summons, the justice should appoint one.^ The guardian may be any person of full age, who will consent to be named as such. These circumstances should be entered on the docket after noting the return of the writ.(2) The cause then proceeds to trial and judgment, against or for the infant, as in other cases. The guardian appointed by the justice for the infant defendant is neither liable for the judgment or the costs, but execution issues against the infant defendant as in other cases. (a) 11 Mass. 147; 9 id. 62. 100; 10 id. 137. (d) Willes' Rep. 190. (b) Stat. 665, $75. (e) 2 Covven's Rep. 430. (c) Willes' Rep; 190; Tidd 71, 72; 13 East, 6, 7. (1) Tlius: "A B , an infant, who sues by his next friend, I G ." (2) Thus: "C D , the defendant, being- an infant, appeared, and was requested to name a guardian to defend this suit; [he named I G , who appeared, and was by Iiis consent, appointed by me for that purpose; or saif, if the fact be so, he refused to name one; wliereupon, I G — was appointed by me for tiiat purpose, and appeared and consented thereto."] If the (lefenduni do not appear on the day required hi^ the summons, say — "The defendant failed to appear; and he being an infant, 1 appointed I G his guardian, who appeared and consented tiiereto." TITLE XIV. INTEREST. SECTION I. OF THE RATE OF INTEREST, AND THE CONSTRUCTION OF THE STATUTE IN RELATION THERP.TO. II. OF THE MOPE OF COMPUTING INTEREST. (A) Where payment is made before the debt is due. (B) Where payynents exceeding the interest are made after the debt is due. (C) Where the payment is less than the interest due. in. WHERE INTEREST UPON INTEREST MAY BE ALLOWED. Sec. I. OF THE RATE OF INTEREST, AND THE CONSTRUCTION OF THE STATUTE IN RELATION THERETO. The statute provides,^ that all creditors shall be entitled to re- ceive interest at the rate of six per cent, and no more, on all money after it is due, either on bond, bill of exchange, promissory note, or Other instrument of writing, or contract for money or property; on all balances due on settlement between parties thereto, or money withheld by unreasonable and vexatious delay of payment; on all judgments, from the date thereof; and on all decrees obtained in any court of chancery for the payment of money, from the day specified in the decree for paj'ment, or if no day be specified, then from the day of the entry of the decree, until such debt, money, or property, is paid. It will be perceived that the statute is silent in relation to con- tracts for interest., and relates only to the interest which may be recovered, after money or property is due. As nothing is said in the statute as to the interest which parties may contract to pay be- fore a debt is due, the supreme court of Ohio decided, that a person might agree to pay any rate of interest he thought proper, and that such a contract could be enforced. But now by law, recently de- cided by the same court,^ a promise to pay more than six percent interest, is constructively forbidden by the above statute.(l) (a) Stat. 465. (b) 7 Oliio Rep. 80. (1) As to interest taken by banks, see Part 2, Title 10. [Prt. 2, Title 24, §1.] interest. 351 In the prior editions of this work it was stated that only six per cent interest could be recovered, even where a new note had been taken which included the usurious interest as principal. It is, how- ever, said that the supreme court on the circuit have refused to per- mit a person who gives a note or bond for a certain sum of money, to show that a portion of the sum mentioned in the note or bond as principal was in fact usurious interest. It is said that they have also refused to permit a party who has paid usurious interest on a note or bond, to apply such payment to a reduction of the princi- pal; it having been paid as interest, the court will not permit it to be disturbed. But it is said, in these and the like cases, the defendant has his remedy in chancery, provided the usury included in the note, &c. is so large as to amount to oppression, and shock the moral sense, but not otherwise. But if a note or bond is given for a certain sum, at a rate of in- terest beyond six per cent, the holder of the note can only recover six per cent interest upon it. The rate of interest, however, upon contracts to be paid in an- other State or country, is regulated by the rate of interest where payable. Thus, if a person make his note in the State of New York, where the rate of interest is seven per cent, the holder of the note may here recover seven per cent interest.* Only six per cent, however, can be allowed on the judgment, after it is rendered. Where a note or bond is payable at a future period, and nothing is mentioned in the instrument in relation to interest, interest is only allowed from the time it became due. It seems, that where a promissory note is payable on demand, interest only can be charged from the time the money was demanded ; or if no demand was made before suit, then interest is chargeable from the time the summons issued. "^ Where an instrument is in the shape of a due bill — thus: "Due A B , fifty dollars, for value received;" interest may be charged from its date. A general and established custom prevails among merchants in some villages and towns, to charge interest on an account, after six or nine months. If the custom has been genei'ally adopted and known, it will form a part of the contract of credit, and interest may be allowed accordingly. So, if a merchant uniformly charges his customers interest after a certain period, and you, knowing this, purchase goods of him on credit, it will be presumed, unless the con- trary appear, that you agreed, like other customers, to pay interest.'^ But interest is not, in general, recoverable, for unli(|uidated or un- certain damages, or upon demands uncertain in amount''; nor on an open running account, where there are no circumstances from which (a) 20 Johns. Kep. 102; 2 Id. 235. Bfriiriion ponerally given to notes paynblo (b) Wri^Mit'a Rep. 582. .526. 542. This deci- oti dcniand. Bion is not in accordance with tlie con- (c) 2 Wend. Rep. 501; 4 Id. 483. (d) 1 Johns. Rep. 315. 352 INTEREST. [Pri. 2, Title 24, an agreement to allow interest can be inferred,* and there has been no vexatious delay of payment. As a general rule, however, inter- est is allowable on cash advances, although they are contained in an unliquidated account.'' Sec. II. — OF THE mope of combuting interest. (A) Where payment is jnade before the debt is due. If the debt is not on interest, the payment is applied to the re- duction of the debt, without allowing any interest on the money paid, unless the parties otherwise agree. But if part payment of a debt which is on interest, be made before it is due, the amount paid should be applied to the extinguishment of principal, and such pro- portion of interest as has accrued on the principal, thus extinguish- ed, at the time of the payment. For instance, a note is given for one hundred dollars, payable in one year with interest. At the end of six months, a payment of fifty-one dollars and fifty cents is made. The whole payment is not applied so as to reduce the one hundred dollars, (the principal,) down to forty-eight dollars and fifty cents, but one dollar and fifty cents of it is apj)iied to the interest of fifty dollars for six months, and the residue of the payment to sink fifty dollars of the principal; there would be due on the note at the end of the year, fifty-three dollars, being the balance of the principal with interest thereon, for one year.'(l) (B) Where payyncMts exceeding the interest are made after the debt is due. In such case, interest should be calculated on the debt up to the time of the payment, and the principal and interest then added to- gether, and the payment subtracted from the sum total. Subsequent interest should be computed on the balance of principal thus found to be due.^ (C) Whci-e the payment is less than the interest due. If a payment be less than the interest due, the surplus of inter- est must not be added to the principal, but interest continues on the former principal the same as if no payment had been made, until the period when the payments, added together, exceed the interest (a) 6 Johns. Rep. 45. See 3 Cowan's Rep. (c) 5 Ohio Rep. 261, 263; 3 Cow. Rep. 86 and 38:3; and Id.RH, and n. (a, for a review 87, n. (a), where the authorilies are coUect- of rases upon tlie suhjcct of interest gene- ed; and see 3 Cow. 393. rally. (d) 1 Johns Chy. Rep. 17; 2 Id. 213. Wright's (b) 3 Cowen's Rep. 393. Rep. 169. (1) The arithmetical rules of discount will solve questions of this kind. §2, (A),(B),(C).] U-STEREiT. 853 due, nnd then the surplus of payments is to be applied towards dis- charging the interest. For instance, upon a note for one hundred dollars, piyable in one year witii interest; if a payment of ten dollars is mide at the end of two years, arid ten dollars at the ex- piration of four years, and nineteen dollars at the expiration of six years, here interest on the whole amount of the note should be cal- culated up to the time of the payment of the nineteen dollars, and then the several payments sliouid be added together, and deducted from the amount of the principal nnd interest; the balance would be the amount due, and upon which, interest should be afterwards cora- puted.''(l) (a) 1 Johns. Cl)y. Rep. 17; 2 Id. 213; Wri^lil's Rep. 169. (1) The following- c;ilculations will illustrate the rule in the text. A, by his note dated Jiinuary 1, 1840, promises to pay B, §1000 dollars, in six months from the date, with interest from tlie date. On this note are the following' indorsemtrnts: Received April 1, 1840, 21 dollars — August 1, 1840, 4 dollars. — December 1, 1840, G dollars. — February 1, 1841, 60 dollars.— July I, 1841, 40 dollars. — June 1, 1844, 300. — September 1, 1844, 12(loll.irs. — January 1, 1845, 15 dollars.— October 1, 1845, 50 dollars. — And the judg-ment is to be entered December 1, 1850. CALCCLATION. The principal sum carryinp^ interest from January 1, 1840, §1000 00 Interest to April 1, 1840, 3 months, '. 15 00 Amount, 1015 00 Paid April 1, 1840, a sum exceeding- the interest, 24 00 Remainder for a new principal, 9U1 00 Interest on 991 dollars from April 1, 1840, to February 1, 1841, 10 months, 49 55 Amount, 1040 56 Paid August 1, 1840, a sum less than the interest then dut- $4 00 Paid December 1, 1840, do. do 6 00 Paid February 1, 1841, do. greater do. 60 00 70 06 Remainder for a new principal, 970 55 Interest oil 970 dollars 55 cents, from Fibiiiary 1, 1841, to July 1, 1841, 5 monlhs, 24 20 Amount, 994 81 Paid July 1, 1811, a sum exceeding the interest, 40 00 Remainder for a new pr'ncipal, 954 81 lulcri-s' on 9.54(lollarH 81 ci iits, from JuU !, 1841, to June 1, 1844, 2ycar.~, II months, 1C7 00 Amount, 11-21 90 Paid June 1, 1844, a siuTi exceeding the in'crcst, 300 00 Ri-maindi-r for a n"W pi-'ncl()al, 8"^' 90 Interest on 821 d. hilars 90 cen's Irom June 1, 1S44, lo October I. 1845, 1 year and 4 months, 63 76 [carried over) 46 364 INTEREST. [Pr/. 2, Tif?e 24, §3.] Sec. III. TTHEN INTEREST UPON INTEREST MAT RE ALLOWED. Whoro tliorc is a scttlomont of accounts l)Ctwcon pnrlics, after in- terest has become clue, ami the interest is charged in the settleuient, interest mny be allowed upon the balance found due by the settle- ment.* So, an agreement after interest is due, to turn it into prin- cipal, is valid.'' Where there i^ a contract between parties for the payment of interest annually, if it be not paid, interest may be al- lowed annually upon the interest from the time it became due.*^ (a) 1 Johns. Cliy. nep. 13. 550. (!>) 6 Id. 313; 4 Oliio Rrp. 373. (c) 4 Id. 373. Amoimt bronq-lu forwartl g887 65 Paid Sf j)timl)t r 1, 1844, a sum less lliun the interest tlien due, $12 00 Paid .Trmuiirv 1, 181.5, do. do., 15 00 Paid Octdbei' 1, 184o, do. greater, uilli tlie two last payments, than interest then due, 50 00 77 00 Remainder for a now principal, 810 65 Interest od 810 dolhirs 65 cents, from October 1, 1845, to Decem- ber 1, 1850, tile time when judgment is to be entered, 5 years, 2 months, 251 30 Judgment rendered for the amount, 1061 95 TITLE XXV. LIENS.(l) If a person have possession of the goods or effects of another, and have a rig[it to retain them until certain charges are paid, he is Slid to have a lien on them. When his right to retain the pi'operty is merely as a security for certain charges incurred with regard to that particular property, and no other, it is called a pcwticular lien. When a person, from the nature of his occupation,, receives and is at trouble or expense about the personal property of another, he has a lien upon it, and may retain it until his reasonable charges are paid.* Common carriers of goods, innkeepers, blacksmiths, tailors, dyers, millers, printers, storage merchants; in fine, whoever in the way of his trade or occupation, takes property to bestow labor or expense upon it, has this right to retain it; and it extends to the whole of one entire work upon one single subject, in like manner as a common carrier has a lien on the entire cargo for his whole freight.** The lien exists, whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reason- able price, unless there was a future time agreed upon for the pay- ment, which would be inconsistent with the right to retain the pos- session."^ There is no lien by the finder upon goods found, except under the statute in relation to strays; but the finder may recover by suit a reasonable amount for his trouble and expenses. No lien can be acquired from the wrongi'ul act of a servant who delivers his master's goods to a tradesman, to have work done on them, without his mastei-'s orders: and the master may, in general, recover the articles without paying for such labor.'' There are two exceptions, however, to this rule: 1, Where the servant acts within the scope of liis usual employ- ment, the master will be bound, though the act of the servant may be wrongful as respects the master. 2. Where the law compels the person to perform the act, and does not allow him to have an option whether he will receive or reject the employment, he has a lien co-extensive with a reasona- (a) G East's Rep. 523. (C) 5 M. and d. mO. (b) 3 Kent's Com. 635. (d) 4 Esp. Hep- 174. (1) A3 to liens by mechanics, laborers and furnishers, tipon houses and vcsseig in the counties of Hamilton, Washinffton, Montgomery, Scioto, Mubkingum und Knox, see 3d vol. Chute's Stalutet, 2160, CI, 62; 38 v. L. L. H5. 356 LiKNs. Prt. 2, ble cliarge for the labor, &c,, which he is compelled to bestow and expend; and therelore, an innkeeper, wlio is obliged to receive all travelers, and keep tlieir iiurses, il he have conveniences, has a lien upon a horse put in his st;ible lor the expense of his keeping, and a right to retain him against the owner, though lelt at the inn by a thiel.'' Where property is in the hands of nnotlier, sul)jcct to a lion, it is not in the power oi the owner, by assigning it over to a third person for a valuable consideration and without notice, to deprive the per- son in possession of the goods of his lien upon thoin.'' Possession of the property is not only necessary to the creation, but also to the existence ot a lien; and when tlie party voluntarily parts with the possession, he is divested of his lien. It is a singular principal of law, that the person who holds pro- perty to secure his chaiges, cannot sell it. The person who has a lien, cunnot retain the property for the security of any other debt or claim than the charges incurred in relation to the identical goods. A factor, or general agent, however, who receives goods from time to time from his principal, to sell, has a lien upon the goods sent to him for the amount of the general balance due him from his principal, as well on account of disbursements, advances, per cent- age, &:c., as other claims not incident to the agency. This is an exception to the general rule; and no such general lien exists, un- less there is an established custom of the kind, or unless it grows out of the contract between the parties. Where a person has possession of the property of another, he may, in general, sue any wrong-doer who injures the property while in his possession. If the owner of the property, or a person acting under the direction of the owner, take it while the lien subsists, and without the consent of the creditor who holds it on account of his charges or lien, he may sue the owner, or such third person, in tro- ver, and will recover in damages the amount of the charges upon the property; or if they exceed its value, then the value of the pro- perty.*^ But if any other wrong-doer take the property, the creditor will recover the lull value of the property, though it exceed his lien; being, in such case, answerable over to the owner, (after deducting his charges,) for the balance.^ The creditor, however, may, where property is wrongfully taken by the owner or his agent, sue for the debt, (which is, in general, the best course,) instead of bringing an action of trover for the ■wrongful conversion of the property. OF THE LIEX OF THE SF.T.LKR UPON' GOODS SOI.r". The seller of goods upon credit, if the buyer becomes insolvent, has a right to take possession of them, while they are in the hands of the carrier or middle man, in their transmission to the buyer, and (a) 2 I-d. R«y. 8(57. (t) 7 Cow. Rpp. G70. (h) 1 Burr. 489 («I) 5 Binn. ^ 7; 7 Cow. G70. GRl, n. (a). Title 25.] LIENS. 357 before they come into his actual possession.* The same right ex- ists for the balance due, when there has been a part payment.^ It is the seller alone, and not his surety for the price, who can exercise this right ;'^ and the seller can do it only for the purpose of protecting himself against the insolvency of the buyer.** A demand of the goods by the seller of the carrier, or claim and endeavor to get possession, will be deemed a taking possession sufficient to sus- tain the lien.*^ If the goods have actually arrived at the place of destination, so as to give the buyer the actual exercise of dominion and ownership over them, the right of stopping them is gone.^ (a) 5 Ol in rpp. fiR. (e) 2 E?p. Rep. 613; 2 Eng. C. L. Rep. 64; 2 Eos. (bj 7 'I'. R. J'JO ; 3 Ensf, 93. and Piil. 47 1. (c. 6 r.nst, .S71. (g) 4 Esp. Rep. 82. [A) 2 Kem's Com. 543. TITLE XXVI. LIMITATION OF CIVIL ACTIONS. The statute for the limitation of actions,* so far as the same ope- rates upon suits before justices of the peace, will be here examined. SECTION I. WITHIN AVHAT TIME ACTIONS MUST BF- COMMENCED. 11. AT WHAT PERIOD THE STATUTE BEGINS TO RUN. HI. OK THE EXCEPTIONS IN THE STATUTE, AND WHAT ACTS PRE- VENT rr FROM OPERATING OR RUNNING. Sec I. WITHIN WHAT TIME ACTIONS MUST BE COMMENCED. Actions must be commenced within the several times following, after the cause of action sh;ili have acci'ued: First. Actions for forcible entiy and detainer, or forcible de- tainer only, within two years. Second. Actions upon the case, covenant, and debt, founded upon a specialty, or instrument under seal, or upon any contract, agreement, or promise, in writing, within fifteen years. Third. Actions upon the case, and debt, founded upon any con- tract not in writing, and actions on the case for consecjuential dam- ages, within six years. Fourth. Actions of trespass upon real or personal property, de- tinue, and trover, within four years. Fifth. Actions against officers for malfeasnnce or nonfeasance in office, and actions of debt (ph tarn., within one year. Si-rth. All other actions, over which justices of the peace have jurisdiction, and not above enumerated, within four years. Seventh. But when an action for a forfeiture or penalty is given, and limited by a statute, that action must be commenced within the time so limited. Sec II. AT WHAT PERIOD THE STATUTE BEGINS TO RUN. It will be observed, that the statute recfiiires that the suit shall be commenced within a certain number of years after the cause of ac- tion accrued; or in other words, within a certain number of years (a) Stat. 553. \_Prt. 2, Title 26, § 1 , 2.] LDriTAxroN of actions. 359 after the plaintiff had a right to bring an action. The time mentioned in the statute does hot begin to run until there is a complete cnuse of action. If I make to you my promissory note, payable in fifty years from dat€, you have no right to sue me, and no cause of ac- tion accrues to you, until the expiration of the fifty years; and con- sequently, the statute does not begin to run until the note is actu- ally due. If no suit is commenced within fifteen years after the ex- piration of the fifty years, your action will be barred by the statute. If I make to you my promissory note, payable three days after sight, no cause of action arises on it until the note is presented to me for payment, for it is not due until then: and therefore, the statute does not begin to operate until the three davs have expired, after sight.* Although a promissory note payat)Ic orKdcmnnd is so far due imme- diately, that suit may be bi;«AjD|i^t upon it without demand, and the moment it is executed, y.^ the ^statute of limitations does not, it seems, begin tQji^i^iipon it iV^m its date, but from the time of de- mand.'' ^ When the contract ^^ promise is such, that there is no breach of it until a reqiiest>ey also show that the person witli whom the single partner made the contract, knew^ or by the exercise of common prudence might have known, that the contract was not made in reference to partnership transactions.*^ Thus, where there is a partnership for making brick, and one of the part- ners in the name of tlie firm, but for his oven private use, contracts for sand or other materials for making brick, and uses the materi- als for his own priv;ite account; the subject matter of the contract being within the scope of such partnership, the firm are liable. But if the person who supplied the materials knew^ that they were for the private use of the partner, the firm would not be liable; al- though tlie partner contracted, and agreed to pay for them, in the name of the firm. Partners cannot limit the exercise by each other, of incidental powers, naturally growing out of the general scope of the pai'tner- ship business; unless the person with whom the contract is made, knows that there is such a limitation.'' As where two persons in partnership for the sale of horses, the property of the firm, agree be- tween themselves never to warrant any horse; yet, if one of the partners warrant a horse to a purchaser who knows nothing of the agreement between the partners, the firm are liable on such war- I'anty; because the contract of warranty is consistent with the reguhir course of such a business. When one partner is about to enter into a contract with a third person, and his copartner, with the knowledge of such tliird person, forbids the contract, the firm will not be bound, unless they after- wards assent to the contract, or the property contracted for come to the use of the firm.*^ One partner is not authorized to make the partn&i'.ship responsi- ble as surety for the debt of a third person, without nn express au- thority for that purpose, or an authority to be implied from the pre- vious course of dealing between the parties, or unless tlie guaranty be afterwards adopted, and acted upon by the firm. If the guar- (f ) 16 Johns. Rep. roi; 4 Johns. Rep. 277, 278. (h) Gow on Part. 66. (a) 3 Kent'i Com. 42; 12 Pick. Rep. -130. (■•' 10 Fait 264; 3 Comi. Kop. 121. 372 PARTNERSHIP, [Prt. '2, Title ^9, anty have roforcncc to the rouular course of business transacted by the partnership, it will bind tlu> (iiiu.'' The same !j;eneral rule, with the same exceptions, applies where one partner gives the name of the copartnership, as a mere and avowed suiTty for another person, without the authority or consent of the lirm. in" a matter entiri'ly unconnected with the partnership business.*^ One partner cannot charge the firm with a debt, by his scaled in- strument, even in commercial dealings. To seal an instrument re- quires a special authority. ^ Yet the partnership will be bound by a sealed instrument executed by one partner in the name of the firm, if there be a previous ve)-l)al or written authority from the other partners, or tiiey afterwards, either verbally or otherwise, adopt it as their act.'' If the partnership do not adopt it as their act, the instrument is valid, as against the ])artner who signed it. and he may be sued ui)on it in his own name, thougli lie executed it in the name of the firm.' As one partner may collect and dis- charge a debt, he may also release a debt by an ordinary release under seal.'' As there is no implied authority by a partner to act for the firm, except so far as to carry on the business of the com- pany, one partner cannot, therefore, bind the firm by submission to arbitration, even of matters arising out of the business of the firm;' unless suit be actually pending for or against them at the time of the submission."" A partner is boinid by the admissions and repre- sentations made by his copartner during the existence of the part- nership." So, a notice served or a demand made on one partner is binding on all." Sec, IV. — OF the dissolution of a partnership, and the powers OF A partner after THE DISSOLUTION. If a partnership is formed for a single purpose or transaction, it ceases as soon as the business is completed.'' Each partner may, by giving notice to his copartners, dissolve the partnership at any time, as to all future capacity of the firm to bind him by contract; and this may be done, even though the par- ties had covenanted with each other, that the partneiship should continue for a farther and definite period of time. The partner who thus dissolves his connection with the firm, will subject him- self to a claim of damages ibr a breach of the covenant.*! A partnership is dissolved by the death of one of the partners. In such case, the surviving partners must sue, and be sued, for all (d) 12 Sere, and Tlawlc, 13; 2 Barn, and Aid. (I) 1 Pef. Rep 222; 1 1 Eng. 0. L. Rep. 51; 1 67.i; 3 Kent's Com. 47. Wen.l. Rep. 326. (•) 19 Jolins. Kep. 154. (ni) Wright's Rep. 4^); 14 Mass. Rep. 43. (f) 7 T. R. 201. (n) Sann. PI. and ^Ev. 70B, and casei there (h) 3 Kent's Com. 47, 48, nnd the cases there cited, cited; 11 Pick. Rep. 400. (o) Id. Ih. (i) Wrieht'g Rep. 93. 118. 142; »m 10 Pici^. (p) 16 Johng. Rep. 491. 279l 1 Peteri' V. 8. Rep. 46. (q) 17 Johns. Rep. 525; 19 Johns. Rep. 538. (k) 1 W»n*. 336. Rnt lee Oow on Pnrt. 278. §4.] PARTNERSHIP. 373 debts and claims growing out of the partnership business; and nei- ther an executor nor administrator of the deceased partner can sue, or be joined in such suit. All the legal rights, powers, and reme- dies appertaining to tlie partnership, vest in the survivors.* The acknowledgment of a debt or fact by a partner, after the partnership is dissolved, will not, in general, bind the firm, nor re- vive a debt barred by the statute of limitations.'' This would be permitting the partner to create a new debt against the firm, after its dissolution. The same objection, it is said, does not apply to declarations of a partner made after the dissolution, concerning facts which transpired previous to that event; and declarations of that character are admissible to charge the partnership. •= Although the power of a partner to bind the firm ceases upon a dissolution of the partnership; yet, a partner, neglecting to give public notice of such dissolution, will be liable to a person who contracts with his copartner upon the faith of the firm, and who has no notice of the dissolution.*^ The insertion of a notice of the dissolution in a public newspaper of the county or town where the partnership business was carried on, seems, of itself, to be sufficient to exempt a retiring partner from responsibility for contracts en- tered into after such notice, with persons who had not previously dealt with the firm.*^ But as to such persons as have had previ- ous dealings with a copartnership, the publication of the notice would not be conclusive evidence of knowledge of the dissolution, unless they took the paper in which the notice was published ;S and in such case it will be for the justice to ascertain, whether there were any circumstances from which it could be fairly inferred that the dissolution was known by means of the publication, or otherwise,'' It is usual for a firm, upon the dissolution of a partnership, to authorize one of the partners to settle their joint atlairs. Where this is the case, and notice as well of the dissolution as of this ar- rangement between the partners is given, a debtor to the firm can- not, by colluding with the outgoing partner, obtain from him a valid discharge of the debt: a receipt given under such circumstances will be fraudulent and void.' But if no such arrangement be made, the partnership still continues for the purpose of collecting and paying debts, and otherwise closing the concerns of the part- nership.'' (a) Oow on Part. 435. (e) 6 Cowen, 701; 2 Johns. Rep. 300: Gow on (b) 1 Marsli. Ky. Rop. 189; 1 Pet. Rep. 351. Pnrt. .'WJ. {Phil. ed. lS2o,) iiott (l). 37.3; 3 Munif. Rep. 191; 17 Ser;;. and («) 6 Cowen, 701. Rawie, 12«; 7 Cowen, fj50; 13 Jolins. (Ii) 15 Johns. Rep. 57. Rep. 53(i; 9 Cow Rep. 420. (i) 2 ("amp. 617. (c) 3 Kent's Com. 51. (k) 6 Cow. 441. jjd) 5 East 225; G Johns. Rep. 423. 374 PARTNERSHIP, ^Prt. 2, Title 29, Sec. V. — ACTIONS by and against partners. The christian and surnnmcs of all the partners, whether plain- tills or tlet'endants, should be entered on the docket, and in the pro- cess.(l) It" tlie plaintills sue, or it" the defendants are sued as partners, the plaintiH's must prove the partnership, or be nonsuited. If the plain- tilfs sue as partners, and it appear that therje are other partners who are not made plaintills, or if it appear that one or more of the plain- tifls were not in tact cop:u-tners, though described as such, the jus- tice must nonsuit the plaintills.* If the plaintilf sue a surviving partner, he must prove the part- nership as in other cases; but it d(jes not seem necessary to prove the death of the deceased.'' Where the business has been carried on in the name of several, one of them may still support an action, if he prove that the others were not, in fact, partners;*^ and one in whose name business has been carried on, is a proper witness for the plaintiil", to j)rove that he was not a partner.'' But, in general, one who is in fact a partner, though not sued, is incompetent to tes- tify for the partnersliip; and even a release from his copartner will not render him competent, if he may afterwards be subjected to the payment of the costs or debt.^ Where there is a secret dormant partner of the plaintiff, it is not necessary that he should, though he may, join in the action.^ If the defendants are sued as partners, and it appear that some rnembers of the firm are omitted, the defendants cannot take any advantage of the omission, after the cause proceeds to a hearintr. If they object to it before trial, they must state by affidavit who are their partners, and the plaintiil' may ask that the question be decided upon testimony; and if the justice find from testimony that there are other partners, the plaintiil" may have a summons issued for the partners omitted;'' and their names may be inserted with the other defendants upon the docket, and the cause proceed as in other cases. If the justice find that there are no other partners, he may render judgment for tlie costs against the defendants up to that time, and proceed with the cause as in other cases. Where the defendants are all sued as partners, and it appears on (a) 5 T. R. 709; 2 Stra. 820; 1 Esp. Rep. 182. (e) VVriglit's Rnp. 143. (b) Saun. PI. ami Kv. 704. (g) 2 Taun. :524; 8 Scrg. and Ravvie 55. (c) 14 East 210; 2 Johns. Ca. 874. (lij Practice act, $50. (d) 2 Eng. C. L. Rep. 279. (1) If the firm consist of two or more persons, as A 15 , .ind C D , and the name of llie firm b(^ "A 15 & (Jo." enter their names on the (locket, and in tlie writs, as follows; "A B , and C D ," [rhrlKtian and surname] "partners iincUr the name and firm of .\ 15 & Co." If one of tiie partners be dead, the entry slionld be thus: ".\ 15 ," [christian and surname of the living partner,] "surviving- partner of C D ," [christian and surname,] "late partners under the name and firm of A B & Co." §5,6.] PAIITXKRSHIP. 375 the trial that some of them are not partners, the plaintiff must be nonsuited.* The partnership may be proved by the verbal testimony of clerks or other persons, who know that the partners have carried on busi- ness together. It is unnecessary to produce the articles of copart- nership. It is a well settled rule that partners cannot sue each other at law, for any cause of action or debt growing out of or relating to the partnership. But where there has been a settlement of the partnership accounts, and a balance struck, whereby it appears that a certain sum is due to one of the partners, and there has been an express and direct promise to pay such balance, a suit may be instituted, and a recovery had upon the promise.^ Sec. VI. EXECUTION AGAINST PARTNERS. Upon an execution against a firm, the whole effects of the part- nership, or a sufficient quantity thereof to satisfy the sum recov- ered, may be seized upon and sold. So, the separate effects of any or either of the individual partners, may. be seized upon and sold.'' If there be a judgment against a separate partner, for his private debt, the undivided interest of the partner in the copartnership, may be sold. It is the interest of the partner in the concein, and not the effects themselves, which the officer, in such case, sells j** and the purchaser only purchases the undivided interest which the part- ner owns, after the accounts of the firm are settled; or, in other words, the purchaser takes, subject to the partnership debts.*" The officer, therefore, does not seize the partnership property, itself, on an execution against a separate partner, (as he would do if the exe- cution were against the firm,) for the other partner has a right to retain the property for the payment of the partnership debts.^ (a) 1 Chitt. PI. 34. (e) 16 Johns. Rep. 102, and 106, notes, where (c) 1 Hns. and Pul. 547. the iiutliorities are rotlected.. (d) 2 Johns. Chy. Rep. 548, per Kent, Chan.; (k' Id. lb.; 2 Wend. 553. 8 Pet. U. S. Rep. 271. (1.) 2 T. R. 479. 483, n. (a). TITLE XXX. PAYMENT.(l) SECTION I. THE DIFFKRENCK BETWEEN A PAYMENT AND A SET OFF. II, API'LICATION OF PAYMENTS, AND TO WHOM TO BE MADE. Sec. I.— THE DIFFERENCE BETWEEN A PAYMENT AND A SET OFF. If A owes yon a debt, and yoii receive money or property upon it, in discliarire of a part, or the whole of the debt; such accept- ance of money or property is called a payment. But if A owes you a debt, and you contract a debt with him for money or prop- erty, there are then mutual debts existing between you; and if one party sues the other, the defendant may set off the debt due liiui, against the debt sued upon. A set ofl', then, exists, where there are cross demands, or distinct debts, on both sides; a payment, where money or property is delivered for the purpose of being directly ap- plied to the liquidation of the debt or claim which it was intended to cancel, in whole or in part. Where the nature of the dealings between parties necessarily constitutes an account, consisting of charges and payments, or con- nected charges and credits, the balance^ only, is the debt,* and the credits are deemed payments. Sec. II. APPLICATION OF PAYMENTS, AND TO WHOM TO BE MADE. Where a creditor has two or more demands against his debtor, the debtor may, in general, at the time he makes a payment, direct (a) 4 Burr. 2221. (1) .\s to when payment of prti-t of a debt, in discharge of the whole, will dis- charge the wliole, st e p^iges 185, 186. As to wliut circvinistances will raise the presumption of payment, see p. 68. As to when tlie transfer of a claim in payment of a debt, will operate as a pay- ment and discharge the assignoi-, see p. 213. As to the effect of payment in forged notes, seep. 214. As to the effect of payment in forged bank bills, or the bills of broken banks. Bee p. 378, note (1). [Prt. 2, Title 30, §1, 2.] payment. 277 the application of the money to the discharge of whichsoever debt he pleases, and the money must be appropriated accordingly. But where money is paid to a creditor, generally, without any specific appropriation by the party paying, and the creditor has sev- eral demands against the party paying, he may apply the money paid to which of these demands he pleases.* And in such case, the creditor need not apply it to any particular demand at the moment of payment, but has a right to make the application at a subsequent period; nor will an entry in his books, applying it to a particular demand, but not communicated to the party pnying, preclude him from applying it, afterwards, to another demand.'' And, it seems, the creditor may apply the payment to the discharge of a purely equitable demand, and sue his debtor for the prior legal debt,*^ Where A and B entered into a bond to guaranty any sums not exceeding £.3000, which the plaintiff might subsequently advance to A; held, that payments made generally to the plaintiff' on account of A, might be applied by them in liquidation of a balance existing against A, before the execution of the bond, and that B could not insist on such payments being applied in exoneration of his liability on the bond, although at the time of his entering into it the plain- tiff did not give him notice that any balance was then existing against A: the court said, that B should have inquired at the time when he executed the bond, whether the account stood clear.** But where security had been given by a surety for goods to be supplied to his principal, and not in respect of a previously existing debt, and goods were subsequently supplied, and payments were from time to time made by the principal, in respect of some of which discount was allowed for prompt payment, it was inferred in favor of the surety, that all these payments were intended to be in liquidation of the latter account.* But, where a creditor has two demands against his debtor, and the debtor pays a sum of money without directing to which it shall be applied, if the amount paid exceeds one of the demands, and is exactly equal to what remains due on the other, it will be consider- ed as having been paid in discharge of that other.^ So, a positive refusal to pay one debt, and an acknowledgment of another, with the delivery of the sum due upon it, must be considered as payment of the last mentioned debt.*" But in some cases, the law will direct the application of the pay- ment of money, even where the debtor has not directed its specific application. Thus, payments by a debtor to surviving partners, from time to time, upon one general account, including the old debt, are to be applied, in the first place, to such old debt;' but (a) 4 rranc1i,317; 14 Eai-t,243, (n); 1 Mcrv. (d) 2 M. and S. 118. 572; 2 Johns. Cliy. Kep. 99; 9 H'liea. 7i'0; (e) 3 Enp. C. L. Itep. 265; see 1 1 Id. .34. 9 <'ow. 420. 41.9; 10 Pick. 129. (g) 3 (nine's Itep. 14. (b) 9 Eng. U. L. Rep. 25. (h) 7 Wliea. 13. (c) 1 Eng. C. I>. Rep. 495; but lee ^ Id. 252. («) 2 Barn, and Aid. 39. 48 378 PAYMENT. [Prt.2^ Tide 30^ where such old debt is not brought into the new account, general payments on the new account are not to be considered as made in discharge of the old debt/(l) Where payments are made upon one entire account, they are to be considered as payments in discharge of the earlier items.^ Where there are two demands, one legal and the other illegal, the law will apply a payment to the discharge of the legal demand." In no case can a creditor, who receives payment generally, re- tain and appropriate it, without the consent of the debtor, to the extinguishuient of a demand created after the payment, leaving a prior demand unpaid.^ Payment to an authorized agent, in the ordinary course of busi- ness, is binding on the principal, and his authority may be inferred from his relative situation in respect of the principal, and from other circumstances. Thus, in an action for goods sold, where the defence was pavment, and it appeared that the defendant had pnid the debt at the plaintilf's counting-house, to a person sitting there in a part railed otf, with account books near him, and appnrently entrusted with the conduct of the business, TENTEiiniiN. C. J., held, that this was good payment to the plaintiff, although the person to whom the money was paid had not, in fact, any authority to receive it.'' Pay- ment'to an agent employed by the plaintiff to obtain the debt, is as effectual as payment to the plaintiff himself, or to the attorney on the record. But payment to the attorney's clerk, or to the attor- ney's agent, is not binding on the principal.' Payment by a debtor to a third person, in pursuance of an order given by the creditor, is equivalent to pnyment to the creditor him- self Payment to an executor who has obtained a pi'obate of a forged will, is nn answer to an action brought against the debtor by the rightful administrator, on revocation of the probate.'' An authority given to an agent to receive money, does not allow the debtor to set ofi' a debt which the agent owes him: for if that were permitted, it would enable the agent to collude with the debtor (t) 9 Ens. C. L. Rep. 25. (e' 9 Cowen, 420. (d) 2 nam. and Aid. 46; II Eng. C. L. Rep. (h 22 En-r.C. I.. Hep. 291. 36. (i) 1 f^^P 115; noil! 62.1, (e) 10 Eng. C. L. Rep. 44. (k) 7 Eng. C. L. Rep. 249; 10 Id. 247. (1) If a party receive in payment counterfeit bank bills, it is not a payment, and he may resort to his oriifinal contract, in like manner as if no pavment bad been made. 2 Johns. Rip 455. It is necessary, in siicli case, for tlie plaint ff to satisfy the justice that tlie identical bill was received from the di fendant, and that it is counterrfit. And, it seems, where bank bills are receivt-d in pa} men', and at the time of such pa\ ment tlie bank wiiich issued the bills has in fact stopped pnyment, allbonsfh tlie failure is not known at the lime and place of payment by either [)ar'y, the loss falls upcm the party paying, and not upon the party receivinij the bills. The person \rho is pi*id bills of a broken bank, has, it is said, received for his debt that which has no value. 11 Wtnd. Rep. 1; Nile^ Register, vol, 47, p. 365. §2.] PAYMENT. 379 to defraud the principal. An authority given to a commercial tra- veler, to receive pnyment in inoneij for goods sold in the country for his employers, does not empower him to receive payment in other goods.* If money be sent in a letter by post, and be lost, the debtor is discharged, if the creditor directed it to be so transmitted, or if it was the usual course of business between the parties.'' (a) 21 Eng. C. L. Rep. 163; 19 Id. 499. (b; 21 Id. 402. TITLE XXXI. PROMISSORY NOTES, NEGOTIABLE BONDS, AND BILLS OF EXCHANGE. SECTION I. FORM OF A BILL OF EXCHANGE, PROMISSORY NOTE, AND NF.GO- TL\BLE BONO, AND THE PARTIES THERETO DESCRIBED. II. OF THE GENERAL REQUISITES OF THESE INSTRUMENTS; AND HEREIN, (A) Of the date. (B) To whom payable. (C) The words '•'•order,''^ ^'■bearer.,''^ or '■'•assigns.''^ (D) Where payable. (jG) In ivhat payable. (F) When payable. (G) The words '•'•value received.'''' \H) What ivords are sufficient to constitute a pro- 7nise.i 4'C. (/) Blank signatures delivered to be Jilled up. III. HOW THESE INSTRUMENTS ARE TRANSFERRED. IV. WHO MAY TRANSFER THESE INSTRUMENTS. y. OF THE INDORSEMENT; AND HEREIN, (^1) Its form. (B) Blank indorsement., and its legal effect. (C) Indorsement in full., and its legal effect. (D) Restrictive indorsement., and its legal effect. (E) Indorsement waving demand., and notice of non- payment. (F) Indorsement without recourse on the indorser. Vr. OF THE RIGHTS AND OBLIGATIONS OF THE DRAWER OF A BILL OF EXCHANGE, BEFORE ACCEPTANCE. VII. OF THE PRESENTMENT OF A BILL FOR ACCEPTANCE. VIII. OF THE RIGHTS AND OBLIGATIONS OF THE ACCEPTOR OF A BILL, AND THE MAKER OF A NOTE OR BOND. JX. OF THE RIGHTS AND OBLIGATIONS OF THE INDORSER OF A BILL, NOTE, OR BOND, AND OF THE DRAWER OF A BILL, AFTER AC- CEPTANCE. I. AT WHAT TIME DEMAND OF PAYMENT MUST BE MADE FROM THE DRAWEE OR ACCEPTOR OF A BILL, OR THE MAKER OF A NOTE, OR BOND, SO AS TO MAKE THE INDORSERS &C., LIABLE. [P/. 2, T«7. 31.] PROMISSORY NOTES BILLS BONDS. 381 SFXTION XI. OF THE MOPE IN WHICH DEMAND MUST BE MADE. XII. OF THE NOTICE OF DEMAND AND NON-PAYMENT, TO BE GIVEN TO THE DRAWER OF A BILL, AND TO THE INDORSER OF A NOTE, BOND, OR BILL, SO AS TO MAKE THE INDORSERS &C. liable; and herein, (A) How the notice should he given. (B) What the notice should contain., and the form thereof. (C) When the notice must be given. (D) To whom., and by whom., notice should be given. XIII. IN WHAT CASES DEMAND, AND WHEN BOTH DEMAND AND NO- TICE OF NON-PAYMENT, WILL BE EXCUSED, AND WHEN NOT. XIV. IN WHAT CASES THE WANT OR FAILURE OF CONSIDERATION, &C., MAY BE SET UP AS A DEFENCE. XV. HOW THE INDORSERS &C, MAY BE DISCHARGED, BY ONE PAR- TY GIVING TIME, &C., TO ANOTHER. XVI. OF THE RIGHTS AND OBLIGATIONS OF PARTIES TO A LOST, STOLEN, OR FORGED NOTE, BOND, OR BILL, XVII. OF THE RIGHTS AND OBLIGATIONS OF PARTIES TO A BANK CHECK, Sec I. FORM OF a bill of EXCHANGE, PROMISSORY NOTE, AND NEGOTI- ABLE BOND, AND THE PARTIES THERETO DESCRIBED. A bill of exchange is a written order, from one person to anoth- er, to pay a certain sum of money to a third; and is what is gene- rally called a draft or order., for the payment of money. Its form is generally as follows: Columbus, January 1, 1846. Two MONTHS AFTER DATE, [or "At sight," or., '"'On demand," or., '^Ten days after sight,"] pay Abel Payee or order, [or "-bearer," or '•'•assigns," or '•'•pay Abel Payee" simply., omitting order., bearer., and as.'iig7is, if you do not wish to make the bill negotiable^^ sixty dol- lars, FOR VALUE RECEIVED. Charles Drawer. To Edward Drawee. The person who draws the bill, {Charles Drawer^) is called the drawer; the one upon whom the bill is drawn, {Edward Drawee^) is called the drawee; and the person to whom the money is direct- ed to be paid, {Abel Payee.) is called the payee. 382 PROMISSORY NOTES — BILLS BONDS. [Pr/. 2, TzV. 3 I, When EthranI Drawee accepts the bill, he is then called the ac- ceptor; nnd if .1/^(7 Payee, (tlie bill being negotiable.) should in- dorse it, and deliver it to another, lor instance, to your friend Smil/i^ Abel Payee would then sustain two characters, being called indors- ER, as well iispaijee; and Smilh becomes another party to the bill, called an indoksf.e; and should Smith indorse it to another, then Smith acquires two characters, that of first indorsee, and skcond indorser; and the one to whom he thus transfers the bill, is called a sEcoNr) indorsee; and so on, through any jiuujber of indorsements, without limitation. The person who is entitled to the bill, and the money due on it, for the time being, is sometimes called the holder of the bill, whether he be the payee, indorsee, or indorser. The reader must become familiar with the appellation drau-er^ drawee^ acceptor^ holder^ and payee, so that he will readily under- stand what parties are meant by these names, or he will know lit- tle or nothing about the application of the principles hereafter stat- ed, in relation to bills of exchange.(l) (1) Before proceeding- further, it will be proper to illustrate the general nature of a bill. Suppose, tlierefore, tliat Charles Drawer owes Abel Payee sixty dollars; and to pay tliis debt, Charles Drawer draws a bill, or order, on Edward Drawee, in favor of Abel Fai/ee, thus: CoLUMnus, January 1, 1847. Ten days after date, pay Abel Payee, or order, sixty dollars. Cha»l£s Dkaweh. To Edwabd Drawee. Now, Abel Payee may take this hill, before the ten days expire, to Edward Drawee, and ask him if he will pay it at the time when it will become due. Tliis is called a. present men i of a bill for acceptance. If Drawee says lie will not pay it when due, then he will not be liable to any one on the bill. But Abel Payee, in such case, must give Charles Drawer notice, that Edward Drawee refuses to accept the bill, and then Abel Payee may sue Cliarles Drawer on the bill if he does not immediately pay it. But if Edward Drawee says he will pay the bill, he then ac- cepts it by writing his name on the back or face of it, thus: Accepted, January 1, 1847. Edward Drawee. This acceptance is a promise to pay the bill when it becomes due, and Edward Drawee is then called the "acceptor." Suppose that after the bill is accepted and before it becomes due, Abel Payee meets your neighbor Smilh, and Payee buys a horse of him, and proposes to give him the bill for the horse. The bargain being made, Abel Payee writes his name on the back of the bill, and delivers it to Smith. Smith thus becomes the indorsee and holder fif the bill. Sufjpose, then, that Smith owes your acquaintance, Johnson, sixty dollars, and Johnson agrees to receive the bill in payment; Smith then indorses his name on the back of the bill, and delivers it to Johnson. Now when the bill becomes due, Jnhnson, the holder, takes it to Edward Drawee, who has accepted it, and demands paymennt. If Drawee refuses to pay it, John- son may immediately sue Drawee on his acceptance; and \( Johnson wishes to make Smith, Drawer, and Payee all liable to him, he gives them notice immediately, that Drawee refuses to pay. Johnson may then sue either Edward Drawee, or §1.] PROMISSORY NOTES BILLS BONDS, 383 As a bill of exchange, especially after acceptance, is very nearly allied to a promissory note and negotiable bond, after such note or bond is indorsed, they will all, therei'ore, be considered under one head, pointing out the ditierence as we proceed. The foUow^ing is the usual form of a promissory note: Columbus, January 1, 1847. For value received, I promise to pay Abel Payee, or or er, [or '■■bearer," or ''assigns," omitting the icurds order, bearer, and assigns^ when you icish to prevent its being 7iegotiubIe.'\ sixty dollars, two months after date. Charles Dame. The one to whom the money is payable, still continues to be called the payee; but the one who is bound to make puyment, is neither a drawer, drawee, nor acceptor; but the signer of the note is called the maker; though his liability to the payee is precisely the same as if he had accepted an order, or bill of exchange, in favor of the payee. If the note is negotiable, and Abel Payee indorses it to your ac- quaintance Smithy Abe! Payee is again both payee and indorser^ (the same as on the bill.) and Smith an indorsee; and the same charac- ters of first, second, third, fcc, indorsers and indorsees, may be thus created. Charles Uravotr^ or Aljel Payee, or Smith., or commence separate suits against alJ» or as many of them as he pleases, and proceed to get judgment and issue execu- tion until he is paid. Johnson need not give notice of the demand and non pay- ment, except to those whom he wishes to make liable to him. Druivee, by his acceptance promises to pay the bill when due, and is liable on his acceptance, whether siicli (lem;ind and notice be given or not. 11" Johnson choosis, he may only give Smith notice, and then Smith and Drawee alone, will be liable to JohH- son. W Smith, on receiving notice from Johnson, wishes to make Payee and Drawer liable to liim, in case he has to pay Johnson the amount ol' the bill, he must give th<-m notice of the demand and non-pay mt-nt; unless, indeed, Johnson has done it. If Sniilh pays the amount of the bill to Johnson, the bill is delivered to Smith, and he may sue not onlj' Drawe, on his acceptance, but I'ayec and Drawer also, if Payee -AW^X Drawer have received notice from Johnson ov \\\n\ii^^\^\ oftht- deni nd and non-payment. So, ]f Johnson is puid by Payee, the bill is dehv^ red io him, and he {/■'ayee) may not only sue Dnnvcc on his acceptMiuc, luit ma\ al>o sue Drawer, if he lias received notice of the demand and non payment. If Drawer pays the b 11, he may sue Drawee on his acceptance. Thus tlie drawee/afier accejitancr, and ihe drawer and p.'iyee, and each succes- sive indorser, are all liable to each succeeding indor-ie; and when any one in this chain of succ.ssive parlies pays the bill, he may look to, and sue for payment, those who became partii-s to the bill, before he did. It must not be understood by what is here .stated, that it was necessary for the payee to present the bill to the drawee f < r arciptanre, before it was due. He might have ncgotiati d it bi ffrc it was du-', without callitig on the drawie at all; and if the drawee, when called upon by the holder, on the day it became s be takeii, to insert in a bond such an amount as a penalty, tliat the real debt, or damages, will not exceed the penalt}'; for the weig'lit of aulliorities seem to be, that in u suit on a bond, nothing morQ tlian the penalty can be recov- ered; at any rate, noihinu" bej'ond that and interest, after the condition is broken, even though the debt or damag-es exceed tlie penally. See 3 Cowen's licp. 155, where the authorities upon tiiis subject are collected. It has already been stated that the surety in a bond cannot in any event be made liable bryond the peiiahy of the bond. See pag-e 328. Although tlie ])eiialty of a bond be more ticm one liundred dollars, yet, if the amotmt due, or damages sustained, be less tlian one hundred dollars, suit upon it may be brouglit before a justice. See pag'e 6. (3) Bonds are genery.lly drawn, binding the heirs, executors and administrators. This is proper in Kng-land; but the words are as unnecessary and useless here as if placed in a bill of exchange, or promissory note. §2, (A),(B).] PROMISSORY NOTKS BILLS BONDS. 385 Before the statute* v as enacted in relation to bonds, notes, and bills of exchange, bonds were not negotiable. Sec. II. OF THE GENERAL REQ.U[SITES OF NEGOTIABLE BONDS, BILLS OF EXCHANGE, AND PROMISSORY NOTES. These instruments, in order to be negotiable, must be for a cer- tain and specific sum of money, payable at all events, and to some person or order, or bearer, or assigns. If they do not possess all these qualities, they are still good as contracts, and may be assign- ed, (1) but the assignee cannot sue on them in his own name. (A) Of the date of these instruments. It is always safe to date these instruments. But if they have no date, or an impossible date, upon proof of the time they issued, or Avere made, they will be construed the same as if they were dated at that time. If a bill or note be payable two months after date, and no date be expressed, it is payable two months after the day on which it was made.** A bill, note, bond, or other contract, is good and valid, though made and dated on Sunday.*^ {B) To whom payable. They should specify clearly, to whom they are payable. Where there is Abel Bite, the father, and Abel Bite., the son, a bill or note payable to Abel Bite., generally, will be presumed, (if there be no proof either way,) that it was payable to the father, and not to the son; but if the son have possession of the instrument, iie may re- cover in his own name.** They may be drawn payable to bearer, without any n'me, and may be negotiated as if they were payable to a person named, or bearer, and if payable to a fictitious person or order, they are in efiect payable to bearer generally, and the holder may sue, in his own name, the drawer or maker; and he may also sue the acceptor, if the fact of the payee b'iiig a fictitious person were known to the acceptor.^ If the name of the payee or indorsee is left blank, any bona file holder may insert his own name as payee or indorsee. ^ (a) Stat. 587. (d) 2 Eng. C. L. Rpp. 316. (b) 2 Hos. and Piil. 173. (e) 3 Koril's Com. 78. (r) Wriglifs Rep. 1^\. (g) 2 M. and S. 90; 7 Cow. Rep. 336. (1) As to the assignment of contracts not negotiable, see page 210. 49 386 PROMISSORY KOTKS BILLS BONDS. [iV/. 2, TiV/c 3 1 , It is not essential to these instruments, tliat they should be paya- ble to order, bearer, or assigns; though, without this, they are not negotiable,* ll'a note, bill, orl)on{l, be drawn payable to one in a irrovg name, he may sue in his right name, and show the mistake on the trial,'' (C) The icords '■^order^''' '••hearei\^'' or '■'assigns.'''' If the words "order," "bearer," and "assigns," be omitted, the instrument cannot be negotiated, so as to authorize the assignee to sue upon it in his own name. When these instruments are payable "to the order of A B ," they are in ellect payable to "A B , or order." If there be no words in the instrument making it assignable; as, where it is made payable to some specified person, without the words "or order," "or bearer," "or assigns," the indorsee has, nevertheless, a right of action thereon against the indorser; (but not in iiis own name, against any one of the antecedent parties;) lor every indorser is in the nature of a new drawer, and the indorser stands to his indorsee, in the the law of merchants, the same as the drawer."^ The contract which the law prima facie implies from a blank in- dorsement of a promissory note not negotiable, is, that the note is due and jniyable according to its tenor; that the maker shall be able to pay it, when it comes to maturity; and that it is collectible by the use of due diligence.*^ (D) Where payable. The name of the place where these instruments are made, is generally written v.'ith the date, thus: "Cincinnati, June 1, 1845." This does not make it the duty of the holder to go to that place to obtain his money. Its only effect, in general, is, that it will be evi- dence of the place where made, and may thereby control the con- struction to be given to the instrument. Contracts are interpreted according to the law's where made;^ and therefore, if a note be given in England, only five per cent interest could be recovered upon it here; if made in New York, seven per cent: unless it appeared that the note was executed with a view of payment hcre.(]) Bonds, bills, and notes, however, are sometimes made payable at a particular place, by their express terms. Even in such cases, a demand at that place is not necessary before suit, in order to ren- der the maker or acceptor liable to an action; but if the defendant Ca) Slat. 587. (c) 3 East 482; Ptra. 478. (b) 3 Ens. C. L. Rop. 229: 5 Hals. Rep. 32:3; (d) 11 Conn. 213. 440- 10 Co. 122; 10 Mass. Rep. 360; 13 (c) Wrisiit'.s Rep. 10. 180. Johns. Rep. 38. (g) 1 Ohio Rep. 483; 2 Pet. 543; 8 Cow. 271. (1) See page 351. §2, (C) (F).] PROMISSORY NOTES BILLS BONDS. 387 prove that the maker or acceptor was there ready to pay the in- strument, this would he a good defence,* and the maker or accept- or, it is said, would not be liable until a subsequent personal de- mand.(l) When a note, bond, or bill, is expressly payable at a particular place on demand, it is safest to make a demand at the place, before suing the maker or acceptor,'' When the holder intends to make indorse?'s liable, and the instrument is payable at a particular place, he should make a demand at the place of payment mentioned in the instrument.(2) (£') In what payable. These instruments must be for the payment of money only. If payable to you '^or order," "-or bearer," '•'■or assigns," in goods,*^ or in bank bills,*^ or if to pay you "or order fifty dollars, and deliver up a horse,"® or to pay any thing else besides money; they are mere contracts, binding, to be sure, but not negotiable, so as to authorize the person to whom they are assigned, to sue in his own name.s It follows, then, that when the condition of a bond is for the pny- ment of any thing else but money, it cannot be negotiated, so as to entitle the assignee to sue in his own name. (F) When payable. They must not only be for the payment of money, but they must be payable absolutely at some period, or upon some condition that must happen. They cannot be made payable out of a particular fund; but must absolutely bind the acceptor, or maker, to pay. Therefore, an instrument which is to be paid, '^provided A shall not pay it," or within so many days ''-after the plaintifl' shall mar- ry," or out of the defendant's pension, or out of certain funds when received, or the like, cannot be treated as a negotiable instrument, but may be a good contract. If such a condition, or the particular fund out of which the instrument is to be paid, is indorsed on the bill, bond, or note, this will be the same as if the indorsement were con- tained in the body of the instrument. But, if the condition upon (a) 1 Oliio Rep. 483; 2 Pet. 543; 8 Cow. 271. (d) 5 Cow. 18f5; GIJ. 103; lOScrg. and Raw.94. (b) 5 Taunt. 30; 10 East, 112; 8 Cow. 272. (o) 1 Stra. 127. 7.J, 7^cr Savage, C. J. (g) 3 Kent'3 (.'oiii. 7G. (c) 3 Oliio Rep. 51. (1) III tlie case of Caldwell v . Cusaidy, (8 Cow. 271,) it was holden, tliat wlien a promissory note is payable at a particular place, on a day certain, if the maker was there ready to pay at the time and place, he may plead it as he would plead any other tender, and must brini^ tlie money into court, in order to render the ten- der available. I think tiiis decision very reasonalile, thouj^h a dilu-rent opinion is intimated by some of the judg-es, in the case of C'o?m v. Grmo, (1 Ohio /{('/>■ 484;) but the question did not arise in the cause. See as to the ettect of a tender yene- rally, Fart 2, Title 35, §7. (2) See §11 of this Title. 388 PROMISSORY NOTES BILLS BONDS. [Pr/, 2, TitleS]^ ^vhich the instrument is to be paid, w».s7 happen, as a promise to pay "when A. B. dies," or on the first of January, 1890, or tiie like, this will not destroy the negotiable character of the instrument; for, as the event must happen, the money must be paid at some period of time, and it is no matter how distant the time may be.* If no time be mentioned for payment, it is payable immediately, the same as if expressly made payable 07i demand}' In such case, and in all other cases, the time of payment cannot be altered by verbal or parol testimony, showing; that tlw? parties intended at the time the instrument was written, that it should be payable at a dif- ferent time.'^ A note, or bond, payable on demand, may be sued in:imcdiately, without demand.'' If the instrument is payable so many days aflcr date, the day of the date is excluded in calculating the time when it will be due.® If an instrument have no date, but the time of its payment refers to its date, the time it was executed may be proved and will be taken as the date, in calculatin;^ the period when it shall become due.^ {G) The icords '•'•for value received.'''' These words are not necessary in the instrument, nor in the in- dorsement; and if omitted, it is for the defendant to prove that there was no value received for the instrument, or transfer, as a conside- ration is presumed until the contrary appear.'' On the other hand, if these words are in the instrument, or indorsement, they do not prevent a party from ehowing that the instrument was made, or in- dorsed, without value or consideration. We shall hereafter see, that under some circumstances, the maker of a bond, bill, or note, is not permitted to show a want, or fiiilure of consideration. (H) What words are siifficieni to constitute a pi^ojnise^ S^c. A bill, note, or bond, is not confined to any set form of words. A promise to ''deliver," or to be '^ accountable," or to be '^ respon- sible" for so much money, amounts to a sufficient />romz5e in a note. So these words: "Borrowed of J. S. fifty dollars, which I agree never to pay him or order," is a good note, and the word "never," will be rejected; and the fifty dollars considered due imniediately, A paper, signed and sealed in these words: "I do acknowledge to A. B. or order, by me, twenty dollars, on demand, for doing the work in my garden;" is a good bond.' '•'•J have agreed to pay" so much, "I acknowledge to owe, &:c.," '-I am content to pay, &c.," are binding; and when a bond is so written, it is good.'' (a) Wil!es,396. (g) 2 Bog. and Pul. 173. (b) Johns. Rop. 374. (h) SM.and S.3.t1; 11 Enc C. L. Rep. 286. (C) T(1 111. 189. (i) 1 Vent. 238. rited 4 Putcrsd. Ab. 591. (d) \^ Mas:.. Rep. 131. (k) 4 Pctersd. Ab. 590. (e) 8 Id. 453. §2, (G),(H),(I), 3.] PROMISSORY NOTES BILLS BONDS. 389 (i) Blank signatures delivered to he Jilled up. It is customary, when a person wishes to borrow money on a note, or bill, to procure the signature of other persons to a blank piece of paper, which is afterwards filled up with a note or bill. The note or bill, so filled up, is good and binding on the parties who have signed the blank.* And where A asked B to sign and seal a blank, who did so, with an understanding that it should only be filled up with a note or bond for two hundred dollars, and A after- wards filled it up with a bond for seven hundred dollars, and then negotiated it to C, who knew nothing of this fraud by A; it was decided that B was liable to C for the whole amount of seven hun- dred dollars.'' But if C, when he received the instrument, had known of the understanding between A and B, the latter would not have been liable on the bond.''(l) Sec. III. — HOW these instruments are transferred. This is by delivery and indorsement,^ if payable to order or as- signs; and either by delivery merely,® or by delivery and indorse- ment, if payable to bearer. If the instrument is payable to A or order, or to A or his assigns, or to the order of A, and A indorses it in blank, it is afterwards transferable by mere delivery. When so payable, in order to be transferable by delivery merely, it must, in the first instance, be transferred by the indorsement of A, unless A is a fictitious person, in which case no indorsement is necessary for its transfer; and the instrument is inoperative for, but valid against, all acquainted with the fact that A is a fictitious person; and an innocent holder may treat it as payable to bearer.s A note in this form, '•^Due the bearer fifty dollars, which I prom- ise to pay A or order," is a note payable to A or order, and must be transferred, in the first instance, by his indorsement.'' (a) 5 Cranch, 142; 4 Mass. Rep. 45. (e) 2 Ohio Rep. 228. (b) 5 Ohio Rep. 222. (ff, Chitty Jr. B. {Ed. 1334), 7. (c) 6 Ohio Rep. 246. (h) 1 Johns. Rep. 143. (d) 2 Ohio Rep. 60. (I) It lias been decided in New York, tliat if a blank note sig-ned or indorsed for the purpose of beini^ discounted at bank, is filled up according- to tbe agree- ment of tile parties, and after the bank lias refused to discount it, the person for whose accommodation tiie note is sig^ned, neg'otiates it to another person who knows all these circumstances: this does not amount to a fraud, and such person can recover ag-ainst the parties to the note. 9 Wend. Rep. 172; 5 Id. G6; 17 Johns. Rep. 176; 4 Cow. Rep. 567; but see 5 Wend. Rep. .566. Hut, if the note was to be returned to tiie parties who sig^ned or indorsed it, in case the bank re- fused to discount it, or there was any other want of g^ood faith, and sucli third per- son knew this when he received the note, then he could not recover, except against the person to whom he actually advanced the money. 10 Johns. Rep. 198; 6 Ohio Rep. 249. 390 PROMISSORY NOTES — BILLS — BOiN'Ds. [P;*/. 2, Title 3\y A note or bond, after it is given, and a bill of exchange after it is accepted, cannot be transferred in any way for only a part of the sum due; for a personal contract cannot be tlius apportioned or di- vided: and such a transfer would pass no interest to the holder claiming under it, as against the acceptor or maker. Where a part of a note has been paid, it may be indorsed over for the residue; and if a bill of exchange be indorsed, before acceptance, for part of the money then due on it, the drawee may, by accepting, render himself liable to separate actions for the two parts.* A bill may be negotiated before, as well as after it is accepted. A note, bill, or bond, may be transferred after it is due; but the rights of the holder, as will be seen hereafter, are quite ditierent from those of a holder to whom the instrument is indorsed before it is due. Sec. IA'. — who may transfer these instruments. (1) The payee, or his agent authorized so to do, must make the first indorsement, or other transfer.'' Where an indorsement is necessary to make a transfer of a bill, or note, as in the case of a full or special indorsement; no indorse- ment will convey a legal right to an instrument, (except as against the person making it,"^) unless it be made by a person authorized to transfer it. As where a bill payable to Ilenry Davis or order, was sent by post, and got into the hands of a w'rong Ileni-y Davis^ who indorsed it to the plaintiff; held, that the holder could not recover the amount from the acceptor, though there was no particular de- scription on the bill of the person entitled to transfer it: for, as the indorsement was not made by the person to whom the bill was re- ally payable, it was a forgery, and could confer no title. "^ Where a bill is indorsed to one man and deposited with him as trustee for the use of another; the right of transfer is in the former only. It is established by a variety of cases, that if a bill, note, or bond, be deposited with or indorsed to a party for a particular or special purpose, a person taking the bill with a knowledge of the circum- stances, cannot acquire a right therein which would contravene the purpose for which it was so deposited or indorsed. If the payee be dead, the right to indorse belongs to his executor or administrator;* but if they indorse these instruments, they will become liable personally; and the words "as executors," or '^as ad- ministrators," annexed to tlieir names, which are necessary to show their connection with the instrument, will not prevent their liability to pay out of their own property, if they have not sufficient for that purpose belonging to the estate. (a) Chitty on Bills, (JV. Y. Ed. 1830,) 139. (d) 4 T. R. 28. (b) 3 Kent's Com. 88. (ej 3 Wil. Rep. 1. 5. (c) 1 B. and A. 218; Stra. 516. (1) As to a transfer by a thief, and the effect thereof, see §16. §4, 5, (A).] PROMISSORY NOTES BILLS BONDS. 391 If the payee has taken the benefit of the insolvent law, then the comQiissioner of insolvents, to whom he has assigned his property, may transfer the instrument; and he also will be personally liable. If several persons are holders of the instrument, and they are partners, either of them may indorse in the name of the partner- ship; but if they are not partners, or the partnership has been dis- solved, then they must all join in the transfer or indorsement. If the instrument is payable to A, /or the use of B^ A is the pro- per indorser, and not B. If the instrument is payable to a single woman, vvho afterwards marries, an indorsement afterwards made by her v^-ill be void; her husband alone has the right of indorsing. It is proper to here add, that an indorsement may always be so made as to limit the liability of the indorser.(l) Sec. V. OF THE INDORSEMENT. (.•1) Its Form. No particular form of words is necessary in an indorsement, either to pass a property in the bond, bill, or note, or to enable the holder to collect it as the agent of the indorser. It may be written on the back, or any other part of the instru- ment, by the holder, or any other person duly authorized by him; but in the latter case, the agent should indorse expressly as agent; thus: '••A — B — ^hy J — ^1 — , his agent f or should merely w"rite the name of his principal, for whom he acts. If the indorsement is made by an agent in his own name, and so that it does not appear that he made it as agent, it will not be good,^ No particular form of appointment is necessary to enable an agent to charge his principal, by signing his name to a negotiable instrument; such authority may be, and indeed generally is, given by word of mouth. A party may derive an authority to accept, draw, or indorse bills of exchange, from having been appointed a general agent; as in the case of a factor for a merchant residing abroad, the principal is bound by all his acts; or he may derive such authority from a special appointment for that purpose.^ An authority m-y be implied from circumstances, if a person has fre- (juently subscribed negotiable instruments for another, and that other has recognized such acts.*^ If an agent indorse without authority a bill payable to order., such indorsement conveys no right of action, except against the party indorsing; but the unauthorized delivery of a bill, or note, payable to bearer., gives a fair bona fide holder a claim on the other pjn-ties,*^ (a) Cliitty Jr. on Bills, 35, a. (c) 3 Esp. 60; 4 Canipb. 188; 3 Eug. C. L. (b) Cliitty, 33. Rep. 386. (d) Baylcy. Ii9, 130; Burr. 452. 1516. (1) See the next section Oi tliis Title. 392 PROMISSORY NOTES — BILLS — BONDS. [Prt. 9^ Title 3\, It is a universal rule that a man w lu) puts his name to a bill of exchange, thercl)y makes hiinseli' personally liable, unless he states upon the I'ac'^ ol" the bill tfiat he subscribes xifor (inotlicr^ov hy jrro- cur(ttion ot" another, which .ire words of exclusion. Unless he says plainly, '• I atn the mere scribe^' lie becomes liable.* The plaintiir employed the defendant to procure him bills on Portugal, the defendant did so, and indorsed the bills without any qualification to the plaintiff at Paris; held, that he was liable to the plaintiff on the indorsement, and that he co^uld not give any evidence to show that he acted as agent to the plaintiff in so doing.* But if a man employed to get a bill discounted, be unable to ef- fect it without indorsing it, though he bind himself to the indorsee, he will be entitled to be indemnified by his employer, though liis employer's name be not on the bill.'' In the commercial world, it is usual for the agent to indorse for his principal in the form following: "Per procuration of J A , [the name of the agent^^ A B ." [the principal^ Or thus: — "A B , \JJie principall]^ per procuration of J A ," [the agentl] Or thus: — "A B , [the jjrincipal^'] By J A ," [the age7it.'] Or thus: — "J A , [the ; C. L. Rep. 236. 1 Dall. 193. (e) 3 Kent's Coin. KU. (kj 8 Scr;;. and Raw. 351; 9 Jolins. Rep. 121. (g) 8 Pick. Rep. 122. (1) See further upon tliis subject, §14 of" this Title. 50 394 PROMISSORY NOTES — BILLS — BONrs. [Prt. 2, Title 31, But B may afterwards indorse it in blank, or to some specified per- son without adding ''or order;"' and it' such person indorse it, any subsequent indorsee may sue any of the antecedent parties to the bill. As where the defendant drew a bill made payable to S, or order; and tS indorsed it to W, who indorsed it to the phiintitf: it was contended that as there were no words to authorize W to as- sign it, he had no such power; but the court held, that as the bill was at first assignable by S, as being made payable to him or his order, and all S's interest was transferred to W, the right of assign- ing it was transferred also, and the indorsee had judgment against the drawer. (D) Of a 7-estrictive indorsement. A restrictive indorsement restrains the payment of the instrument to the indorsee only, as by saying, "-Pay the contents to G H , only;'' and the indorsee cannot, in such case, negotiate the instrument any farther: but stating in the indorsement the consid- eration upon which the bond, bill, or note, was given, is not for that reason a restrictive indorsement. But it seems, that no one but the payee of a note, bond, or bill, can stop its negotiability by such re- strictive indorsement; and if a subsecjuent indorsee undertake to do so, by making such restrictive indorsement, the holder may, not- withstanding, negotiate and transfer it.^ Bills and notes are frequently indorsed in this manner: "-Pray pay the money to my use;" in order to prevent their being filled up with such indorsement as passes the interest. This is a restrictive indorsement, which prevents the indorsee irom transferring the in- strument, or converting the produce of it to his own use. {E) Of the form of an indorsement of a note.^ bill, or hond.^ where demand and notice of non-pa xjiaent are waved. When the indorser of a bill, bond, or note, does not wish the in- dorsee or holder of the instrument to make demand of payment of the maker or drawee, and to give notice of non-payment, the in- dorsement should contain an agreement to that ellect. It may be indorsed on the instrument in the following form: '-Pay the con- tents to G II , or order. Demand, and notice of non-pay- ment of contents at maturity, hereby waved:" the indorser signing his name thereto. {F) Form of indorsement jcithoiit recourse on the indorser. When the indorser wishes to transfer an instrument without being himself liable, in case it is not paid, and the indorsee is willing to take it at his own risk, the indorsement may be thus: (a) 1 Esp. Rep. 180; Burr. Rep. 1216; Doug. Rep. 637. These are the cases to wliich Cliitty refers, as establisliins a dilTcrcnt doctrine. §5,(D),(E),(F),C,7.] PROMrSSORY notes bills BONDS. 3'. > Pay the contents to A B , or order, without recourse on me. ( . G H . Upon such an indorsement, there is an implied warranty that the instrument is not a forgery.'' Sec. VI. — OF the rights and obligations of the drawer of a bill BEFORE ACCEPTANCE. , By drawing and dehvering a bill to the payee, the drawer en- gages absolutely and irrevocably, to the payee and every su])sequent holder of the bill, that the drawee is capable of binding himself by his acceptance; that on the bill being duly presented, the drawee will accept it; and that the drawee will pay it on its becoming due, if demanded in proper time. On failure in any of these particulars, and notice thereof being given to the drawer, he will be immediate- ly liable to the holder, whoever that may be, for the amount of the bill. And where acceptance is refused by the drawee; or the drawee is unaljle to bind himself by an acceptance; or when the bill is pre- sented to him. he will only give a partial, or limited, or conditional acceptance; an action lies immediately against the drawer, upon notice being given to him of the non-acceptance, without waiting for the time when the bill becomes due,. if payable at a future day. The indorser is in no ease liable over to the acceptor. The draw- er, however, is liable over to the acceptor or drawee, if the drawee accepts and pays the bill, when he is not, in fact, indebted to the drawer, or has no money or effects in his hands belonging to him. Sec. VII. OF'THE presentment of a BfLL FOR ACCEPTANCE, When a person holds a bill of exchange which is payable at a future day, he may call on the drawee to ascertain whether he will pay it, or not, when it shall be due. This is called a presentment of a bill for acceptance. In general, it is not necessary to present the bill to the drawee before it is due, to ascertain whether he will accept it or not. If, however, a bill be payable a certain number of days after s-iglit^ as, for instance, three days after sight, it must of course, be seen l)y the drawee, before it will be due. It must, therefore, be presented to the drawee, who then states whether he will pay it when it shall be- come due. If he says he will pay it, he immediately accepts the bill, by writing on the back of it his name, under the word "accepted;" or he may accept it by parol, declaring that he accepts it; or by promising, before it is di-awn or afterwards, to a(^cept it or pay it. (Ii) 1 Carapb. Rep. 100. 396 PROMISSORY NOTES BILLS BONDS. [Prt.'2^ Titlc 3\ ^ If he promise before it is draum^ to accept it, and the payee knows of such promise, and has taken the l)ill on the faith of it, this will be a binding acceptance; but it would be otherwise if the payee did not know of such promise, or had given no credit to it. A promise to accept a bill not drawn, will not amount to an acceptance after it is drawn, unless some i)erson be induced to take the bill on the faith of such promise. The drawee, after he has accepted the bill, is called the acceptor, as well as drawee. The acceptance is, in law, a promise to pay the bill when due. If the bill is payable at sight, or so many days after sight, it should be presented for acceptance within the same reasonable time as a bill, note, or bond, is required to be presented for payment, where it is payable on demand. The law upon this subject will be stated hereaiter.(l) The neglect to present such a bill for nccejitance within a rea- sonable time, will discharge the di-awer aiul indorsers from all lia- bility. An acceptance once completed and issued, cannot be revoked. But if the drawee writes an acceptance, he may afterwards cancel it, while the bill remains in his possession, and before he delivers it out; though it was formerly held otherwise. It sometimes happens, that the draw^ee is unwilling to accej)t the bill absolutely, but is willing to accept it subject to some contingen- cy, limitation, or condition, either with regard to the amount to be paid, or the time and place of payment, or to the happening or not happening of some event. But the payee or holder of the bill has a right, when any such conditional or limited acceptance is oflered, to reject it, and consider acceptance as refused. He is at liberty, however, if he sees fit, to agree to it, and then the acceptor will be bound according to his acceptance only. Thus: if he accepts, pay- able when A makes hitn a deed for certain land, he will not be lia- ble until the deed is made by A. In such case, if .the holder of the bill wishes to avail himself of the conditional acceptance, without losing his remedy against the drawer and previous parties, he should give them notice immediately of the conditional acceptance. It has already been observed, that except when a bill is payable at a limited period after sight, the holder may retain it in his possession until it becomes due, according to its tenor, w^ithout previously pre- senting it to the drawee for acceptance. But if a bill, not payable at a limited period after sight, be presented to the drawee for his acceptance before it is due, and acceptance is refused, the holder must give the parties whom he wishes to make liable to him imme- diate notice of the presentment and non-acceptance; and they may, immediately after, be sued by the holder, without waiting until the bill is due. Where it is necessary, on account of the bill being pay- able at a fixed period after sight, to present the bill for accept- ance, the holder must, if acceptance is refused, give immediate no- (1) See page 401. §7, C] PROMISSORY NOTES BILLS BONDS. 397 tice thereof to the parties whom he wishes to make hable to him; and they may be, immediately afterwards, sued by the holder, with- out waiting until the time mentioned in the bill has expired. A bill which has been presented for acceptance, and upon which accept- ance has been refused, is considered as dishonored; and the duties of the several parties in relation to giving notice of non-acceptance, and the consequences of neglect or delay in giving such notice, are precisely the same as where payment of a note, bond, or bill, has been duly demanded and payment refused. If the drawee refuses to accept the bill, he is not in general, lia- ble upon it to any of the parties. So, if he refuses to pay a bill, when due and presented to him for payment, and which he has nei- ther accepted nor promised to accept, he is not liable upon it. It is only an acceptance, or a promise to accept, which renders him responsible. Sec. VIII. OF THE RIGHTS AND OBLIGATIONS OF THE ACCEPTOR OF A BILL, AND THE MAKER OF A NOTE OR BOND. It has already been stated, that the drawee of a bill of exchange, after he has accepted it, is called the acceptor. The obligations of the acceptor of a bill, and the maker of a note, or bond, are precisely the same. They must pay the payee, or the subsequent holder, when the instrument becomes due, and no demand of payment is necessary before suit is brought against them; unless the instrument is payable at sight, or a specified time after sight; in which case, the instrument should be presented for pay- ment. But with this exception, no demand is necessary, to render them liable, even though the instrument be payable on demand^ or at a particular place and specified time.*(l) It follows, that in an action against the acceptor of a bill, or the maker of a note or bond, the defendant crmnot prevent a recovery against him by showinir that payment \¥as not demanded when the instrument became due, or that time and indulgence has been given to the drawer, payee, or indorsers. Indeed, the rules in relation to demand and notice of non-payment or non-acceptance, have no bearing upon the liability of the acceptor of a bill, -or the maker of a note or bond; and consequently, whatever those rules may be, or however violated, it does not discharge them. If a person accept a bill as nffevf^ without any authority to do so, neither he nor the supposed principal is lial)lc on the bill. But he will be liable to a special action on the case for falsely represent- ing that he had authority.'' (a) 1 Ohio Rep. 48J. (1)) 23 Erif;. C. L. Rop. 38. (1) See page 386, 398 PROMISSORY NOTES BILLS BONDS. [Pr/. 2, Titlc 31 ^ A bill, bond, or note, which has been negotiated by the payee, and is afterwards paid and taken up by him, has not yet performed its office; it is not satisfied and extinguished, so that it can no lon- ger be negotiated and sued upon, until the accc})tor or maker has paid tlie amount. The acceptor of a bill is, in general, liable on his acceptance to the drawer, if the drawer has paitl the bill after receiving due no- tice of its non-payment by the acceptor. We shall hereafter see that there are some exceptions to this rulc.(l) M^hen a note, bond, or bill, has been indorsed, and costs recover- ed from the payee, drawer, or indorsei's, they cannot, in general, recover those costs from the maker of the note, or the acceptor of the bill.* It seems, however, that if a person who became a party to a bond, bill, or note, for the mere accommodation and benefit of the maker, payee, drawer, drawee, or indorser, be sued, he may re- cover his costs from the party for whose accommodation he signed the instrumcnt.''(2) Sec. IX. OF THE RIGHTS AND OBLIGATIONS OK THE INrORSER OF A BILL, NOTE, OR BOND; AND OF THE DRAWER OF A BILL, AFTER ACCEPTANCE, The liability of the maker of a note or bond, and of the acceptor of a bill, we have just seen, does not, in general, depend upon a demand being made upon them, nor upon a notice of non-payment being given to the other parties. The indorsers, however, of a bond or note, by the act of indorsing, engage to pay it on condition that the maker is called upon by the holder, and fails on demand to pay according to his engagement, and notice is given in due time to such indorsers of the faihire to pay. So, the engagement of the indorsers ,of a bill, and of the drawer after the acceptance, is, that the bill will be paid by them to the holder, in case demand is made of the acceptor and he I'efuses to pay, and they haj'e notice hereof. If the instrument is negotiated after it is due, and is thereby opened to every equitable defence, yet a demand must be made upon the drawee, or maker, and notice of non-payment given the indorsers and drawer, in order to charge them. If demand be made, and notice of non-payment be given, then the holder may sue any or all of the preceding parties; and each indorser who pays the instrument, is entitled to its possession, and may sue any of the preceding parties who have received due notice of non-payment. In order to illustrate the rules in relation to the lial)ility of the (a) 17 Eng. C. L. Rep. 457; 19 Id. 338; 4 Taunt. 4G4. (1.) 16 Jolins. Rep. 70. (1) See §14 of this Title. (2) A3 to what is accommodation paper, see §11 of tiiis Title. §9.] PROMISSORY NOTES BILLS — BONDS. 399 seA-eral parties, let us suppose you draw a bill of exchange on S, in favor of A, and A indorses it to B, and B to C, and C to D, and S accepts the bill; that is, proniis-es to pay it when it shall become due. Demand is made of S by D, and he neglects to pay, and notice is given thereof by D to C; and C gives B notice, and B gives A no- tice, and A gives you notice, of the demand and non-payment. Now, so long as D remains unpaid, no one but D can sue the par- ties; but they are all liable to him, and he may commence separate suits, and recover separate judgments, and issue execution, against all, until he is paid: or he may sue any one he pleases. If B pays D, this does not give B any right to sue C, because C indorsed the bill after he did, and is only liable to D; for an endor- ser is only liable to the person to whom he indorses it, and to those to w^hom the instrument is afterwards transfei'red. If C pays D, then C may sue all or either of those who became parties to the instrument before he did. . If you pay your own bill, S alone will be liable to you, on his ac- ceptance; and if he accepted the bill merely to accommodate you, or witliout consideration, he will defeat your action. The same rules are applicable to a negotiable bond or note. — Thus, if you hold the note or bond of S, and it is indorsed by you to A, and by A to B, and by B to C, and by C to D, and demand of payment is made by D of S, and notice is given of the demand and non-payment, to C, B, A, and yourself; all are in like manner liable to be sued, and have the same right, after paying the note, or bond, to sue and recover against prior indorsers and parties. It should be remarked here, although the subject will be again mentioned, that each indorser of a negotiable instrument, who has due notice of its dishonor.(l) is lia.ble, although the holder omit to give notice to the parties whose names are on the instrument before that of such indorser. But the holder, by omitting to give notice to such previous parties, precludes himself from recovering against them, if they do not receive due notice from any other party to the instrument to whom they are liable. Each indorser, therefore, has the benefit of a notice of the dishonor of the instrument, given by other parties to it; but if an indorser, receiving notice, wish to make the drawer of a bill, or the indorsers of a bond, bill, or note, liable to himself, he had better give them notice; for if they do not re- ceive notice from him, nor from any other party to the instrument to whom they are liable, they will be discharged. Actual payment to any one of the indorsers of these instruments, will, of course, discharge all the parties from liability to the indorser so paid; and will entirely discharge all who inilorsed the instrument after the person did who is paid. Such payment will also discharge all the actions brought l)y the person who is paid, unless judgment has been obtained in them. Where, therefore, the holder commen- ces several suits against diiierent parties, he should be careful not (1) A bill, note, or bond, which has been duly presented for acceptance or pay- ncnt, and acceptance or payment refused, is said to be " dii/tonurtd," 400 PROMISSORY NOTES BILLS llOXDS. [Prt. ^^ Tllle S\^ to receive satisfaction olonc suit witliout ])aymcnt of the costs of the whole, unless judgment has been obtained in all the others; for in such case, judgment in the other suits will be rendered against him for costs, if the defendant show that he has been paid.* But upon judgments, he may, altlK)ugli paid by the satisfaction of one judgment, issue execution uj)()n, and recover the costs of the other suits and judgn)ents. Though the holder of a bill may issue execution against all the ])arties, he cannot, after levj-ing the full amount of the debt on the goods of one, issue ixji.fa. to atlect the goods of another, except as to costs in the action against the latter. Where a note, bond, or bill, has been indorsed, and costs are re- covered against an indorser, he cannot recover those costs from the person who indorsed the instrument to him, nor from the maker of the note or bond, or the acceptor of the bill.''(l) There is no division of the loss, or contribution, between indors- ers of notes, bonds, or bills, as tlierc is between sureties, when they arc compelled to pay the debt of their j)rincipal. The only excep- tion to this rule, is where the making of the instrument and its in- dorsement are one transaction, and the indorsements are merely made for the use and accommodation of one of the parties to the instrument, and to give him credit upon it. In such case the in- dorsers are co-sureties, and cannot recover more than a proportion- able share from each other.''(2) Where a note, bond, or bill, has been transferred, and it after- wards comes back to the possession of an indorser, he is presumed, unless the contrary be shown, to be the right holder, and need not produce any rccei])t or reindorsement, in order to maintain an ac- tion upon it.*^ An indorser who pays and takes up one of these in- struments, may afterwards negotiate it, as it is not extinguished until paid by the acceptor or maker. There is a distinction in regard to the liability of an indorser^ and ofa party who transfers by mere delivery, without indorsing the instrument. In the latter case, the name of the transferrer not be- ing on the instrument, he can in no instance be sued thereon^ even by the party to whom he delivers it. But he may be sued by the party to whom he delivers it, for the original consideration or debt, in respect to which the instrument was delivered, unless it were either expressly agreed, or fairly implied from the circumstances, that the instrument should be taken as a payment, at all risks.(3) (a^ 2 Mass. Eep. 171. (d) 9 B. and C. 618; 17 Ens. C. L. Rep. 457 ; (b) 1 Ohio Rep. 420. 4 C. and P. 194; 9 Jolnis. Rep. 131: 19 Eng. C. L. (c) 8 Wiiea. 172; 6 Cow. 449. Rep. 338; 16 Jolir.s. Kep. 70; 4 Taunt. 464. (1) For the exception to this rule, see p. 331. (2) See pag-e 3.11. (3) See Chitty ,(r. on Bills, 42 «, and the autliorities there cited. The rules hiitl down on pug-es 212, 213, in relation to the liubility of the trans- ferrer of choscs in action, are also applicable to cases where a note, bond, or bill, ofa third person, is delivered without indorsement. §10.] PROMISSORY NOTES BILLS BONDS. 401 If a bill, note, bond, or other claim, be taken without indorsement by way of sale or exchange for other property, or for other negotia- ble instruments, or by way of dhcount^ and not as a security for money; the transferrer, if he acted in good faith and without know- ledge that the instrument was worthless, will not be liable, unless lie agreed to be so.''(l) We have already seen, that the holder of a negotiable instrument may, by his indorsement, transfer his interest in such a manner as to exclude all claims upon himself, individually, in case the instru- ment is not paid. (2) Sec. X. AT AVHAT TIME DEMAND OF PAYMENT MUST BE MADE FROM THE DRAWEE OR ACCEPTOR OF A BILL, OR THE MAKER OF A NOTE OR BOND, SO AS TO MAKE THE INDORSERS, &C., LIABLE, When a bill, bond, or note, is payable on demand; or is negott- ated after it is due; or the time of payment is not mentioned in it; or it is payable on sight, or a certain number of days after sight; payment should be demanded of the drawee or maker, by the holder, loitkin a reasonable time after he received the instrument.*^ This reasonable time must depend on the distance the parties live from each other, the course of the mail, &c. It should, if the parties reside in the same place, be presented for payment the next day after it is received at fartlicst. It is always safest to present it the day of receiving it; and it should not be neglected until the next day, unless for some substantial reason. In general, if it is not pre- sented on the day it was received, nor on the next day, where the parties reside in the same place, a subsequent demand would be deemed too late; and the drawer and indorsers would be discharged. So, where the maker of a note or bond, or the drawee or acceptor of a bill, resides in a different place from the holder, and the holder neglects to forward the bill for demand the day he receives it, and also the next day, this would be deemed an unreasonable delay.* It is, however, a mixed question of law and fact, whether a holder has been guilty of an unreasonable delay, depending upon the cir- cumstances of each particular case; such as the situation of the par- ties, and accidents not arising from negligence.^ Great prompti- tude, however, is required on the part of the holder. If the instru- ment is continually kept in circulation by transfers, this would ex- cuse an immediate presentment of an instrument payable at sight, or at a certain time after sight.^ And it seems that circumstances, transpiring at the time of making the bill or the indorsement f)f the note or bond, which show that the parties did not contemplate an immediate demand, may be given in evidence, and will excuse an (b) Chitty, jr. on bills, 42 a, 68. (c) 7 Cow. 705. (c) 6 Cow. Rep. 484; 20 Johns Rep. 14G; (g) 7 Taunt. 159; 3 Kent's Com. 92; 20 Johng. 13 Mass. 131. Hep. 146. (d) Chitty on bills, (N. Y. Ed. 1830,) 271. (1) See pages Sl2, 213. (2) See pages 394, 396. 51 402 PROMISSORY NOTKS BILLS BONDS. [^Plt. 3, Titk 31, immediate demand and notice of non-()a}'iiicnt. Thus: where the indorser of a note, payable on demand, stated to the indorsee at the time of the indorsement, that the maker of the note would get into business again and pay; this was liolden sullicient to show than an immediate demand was not contemplated; and that a demand with- in a few weeks, and notice given within two or three months, were sufficient to render the indorser liable,'' It will be observed that the above rules relate to notes, bonds, and bills, payable on demand, or negotiated after due, or when the time of payment is not mentioned in the instruments, or are paya- ble on sight, or a certain number of days after sight. According to the law merchant, and now by a late statute,' where an instrument is payable at a day certain, or so long after date, or after sight, or any other particular day mentioned in it, it is not pay- able at the time tfie words naturally import; but the acceptor or ma- ker has until the third day, and the wiiole of the third day, alter and exclusive of the day of payment named in the instrument, to make the payment. Thus: when a note is payable on the first day of Septendjei', it is not due until the fourth^ and on the fourth a demand should be made. These three days are called days of grace. The rule is, that in order to charge the parties collaterally liable on the bill, check, or note, (as the drawer or indorsers of the first two instruments, and the payee and indorsers of the note,) present- ment for payment must be made on the exact day tlie instrument, according to its tenor, becomes payable, after allowing the days of grace, if payable at a fixed time; (a day before or a day after will not sulfice;) and xvithbi a 7-caso7iabIe time., in case the instrument be payable upon demand. If the instrument be dated the 27/// of August., payable tico months after date, it will be due, and should consequently be presented for payment, on the 30//i of October. It will therefore be observed, 1st, that the day of the date is ex- cluded or not reckoned; 2dly, that the months are cakndar., not lunar months; 3dly, that thei'e are allowed iJii-ce days'' grace after the 27th October, when the two calendar months expire; and 4thly, that the third day of grace is the day on which the demand and payment are to be made. If a bill or note be payable twenty-one or other number o{ days., or so many months, after sight., a presentment to the drawee of the bill or maker of the note, is obviously necessary to fix the day of payment. The twenty-one days (&,c.) wnll be calculated from the day when such presentment was complete, not t'eclioning that day; as, if presented on the 2d of September, the twenty-one days will expire on the 23d September; and, adding the three days' grace, the money will be payable on the 26th September. The three days of grace are allowed on bills, &c. payable in this country, whether payable after date or after sight; or after demand; or even, it seems, when payable at., (not after ^ sight; or on a day (b) 3 Wend. 75; 13 Mass. Rep. 138, per Parker, C. J. (i) Stat. 588. §10,11.] PROMISSORY NOTES BILLS BONDS, 403 expressly named on the face of the instrument; but not probably when made payable on demand. When there is a custom to make demand, and c;ive notice on the fourth day, the custom forms a part of the contract, and the parties are bound by it.*^ When the third day of grace foils on a Sunday, or a great holy- day, as the fourth of July, or a day of public rest, the demand must be made on the day preceding. According to the law merchant, a demand made before the third day of grace is a mere nullity, and the same as if demand should be made before an instrument is due. By a late statute all these negotiable instruments are entitled to three days of grace in the time of payment, and demand should be made on the third day of grace as above mentioned.*^ No days of grace are allowed on negotiable bills, bonds, and notes, payable on demand, unless the statute abov^e referred to requires it. If no time for payment is mentioned in the instrument, it stands on the same footing as to the time when due and as to days of grace, as if expressly made payable on demand. It has never yet been expressly decided in England whether days of grace are allowed on bills payable at sight, but the weight of authority is in favor of such an allowance. The presentment for payment must always be during the usual hours of business of that kind. If the party to whom presentment is to be made, be not in business, probably a presentment at any reasonable hour of the day not devoted to rest, though not an hour of business, amongst men of business, would be considered suffi- cient; and a presentment at any hour will suffice, in any case, if the party who is to pay be met with, expressly remain to give an answer, and refuse payment. The consequence of an omission to present the instrument for payment in due time, is, that although no particular injury or loss can be shown to have arisen from the neglect, and the instrument would not have been paid if sooner presented, the parties to the instrument who are collaterally liable thereon, as the drawer and indorsers of a bill, and the indorsers of a note, or bond, are respect- ively discharged from all liability upon the instrument; and also from the debt or damages on account of which it was given. ^ The above rules in relation to the time of demand, and the conse- quences resulting from omission or delay in making demand, are settled law in most of the States of this Union. They are easy to be understood, steady in their obligation, healthful to business, and have grown out of, and been tested by, the practical experience of many generations. Si:C. XI. OF THE MODE lU WHICH DEMAND ML'ST BE MAI'E. A demand upon one of two or more joint makers of a note who are not partners, is sufficient to charge an indorscr.^ A demand upon one of several partners is also deemed a demand upon all. (f) 9 When. 581; 1 1 M. '131; I Pet. U. S. Rep. 25. (il) Slat. 58H. (0) 2 Burr. C69. (g) 1 Wilcox'i Uep. 6. 404 PROMISSORV NOTKS liU-f-S BONIS, [P/7. '2, T///e31, A demand cannot be made, by merely sending a letter by mail to the party of whom payment is required. As the person upon "Vvhom demand is made will be entitled to the instrument as a voucher, in case he pays it, the person who makes demand should, at the time, have possession of the instrument, so as to be ready to deliver it up; for the demand will be invalid, if the drawee or maker refuse to pay, on account of the non-j)roduction of tiie in- strument.(l) In order to make the demand, deliver the bill, note or bond, or send it by letter, to some disinterested person who can be a wit- ness, and request him to make the demand, pointing out to him the time. Tiiis letter, with the instrument, or even the possession of the instrument alone, will be sufficient evidence of authority, to make demand.^ The demand may be made of the maker, di-awee or acceptor, personally, wherever he is found, even though the instrument be payable at another place, unless he object on that account.'' If he IS gone from home, it should be presented to his agent, who does business, and pays money for him, if any such agent can be found at his house, or place of business.' If he be absent, and have, no such agent, it will he sufficient to make the demand at his house, of his wife or servant,'' or in their absence, of some other person be- longing to the family; or if no pe^-son be at home, or can by in- quiry be found, or if the drawee or maker has absconded, no de- mand is necessary.' If he hns changed his place of residence to some other place within the state, the holder must endeavor to find him, and make the demand there; but if he has removed out of the State subsequent to the making of the bond or note, or accepting the bill,"" then no demand is necessary; and the instrument need not be even presented for payment at the former place of residence of the acceptor or maker;" unless, indeed, the party has left some per- son there to do his business. If a particular place of payment is nairied in the instrument, or in the acceptance, the holder should, of course, make his demand at the place, even though the drawee or maker has removed out of the State, or absconded; and being there ready to receive the mo- ney is sufficient." In making a demand of payment, a request to pay or something amounting to it should be made, and it is necessary that the note should be present ready to be delivered up on payment, or if lost or destroyed, that an indemnity should be tendered. The same demand of payment, in time and manner, and the same notice of non-payment, to make the indorser of, a note, bond, or bill, liable, is also necessary, to make the drawer of a bill respon- sible. After a neglect and refusal to pay upon demand of the (g) 7 Mass. Rep. 483; 18 Johns. Uep. 230; 1 (1) 4 Mass. Rep. 45. Pick. 401. (ni) 9 Wliea. 598; 6 Mass. 449. (h) 3 Johns. Ca. 71. (n) 3 Ohio Rep. 307. (i) Camp. Rep. 596. (o) 6 Mass. Rep. 524; 3 Kent's Com. 99; 3 (k) 2 Esp. Rep. 512. Ohio Rep. 307. (1) See §16, of this Title. §1 1, 12, (A),(B).] PROMFSSORY NOTES BILLS BONDS. 405 maker, drawee or acceptor, the next step, if you mean to hold the indorsers and drawer liable, is to give them notice of such demand and non-payment. Sec. XII. OF THE NOTICE OF DEMAND AND NON-PAYMENT, TO BE GIVEN TO THE DRAWER OF A BILL, AND TO THE INDORSER OF A NOTE, BOND, OR BILL, SO AS TO MAKE THE INDORSERS &C. LIABLE. (J[) Hoiv the notice should he given. This notice, if the parties reside in the neighborhood of the holder, should be given personally, or by a messenger, sent to the dwelling house; and in such case, the notice must be personally served upon the party to be charged, either at his dwelling house, or place of business, or wherever he may be found. If the party to be charged is temporarily absent from home, and the house shut up, still the notice may be left there; and whether the house is shut up or not, it should be left in such a manner, as may be reasonably calculated to bring the knowledge of it home to him. If the parties live in difierent towns or townships, the notice by letter mny be forwarded by mail, to the post office nearest the party, or to the post office where he usually receives his letters. p If. the letter should happen to miscarry, this will make no difler- ence as to the rights of the holder; for if the letter is properly di- rected to the right place, and sent by the mail, the holder is not re- quired to see that it actually arrives.'* Nor is it necessary to send by the mail. If the holder choose, he may send the notice by a pri- vate conveyance; and it would be a good notice, though it should happen to arrive a little behind the mail. If the indorser or drawer be dead, the notice should be given to his executors or administra- tors if known to the holder on incjuiry : or if there be none appointed, or none known to the holder, then notice directed to the drawer or indorser by mail, or left with his family, will be sufficien^t.^ {B) What the notice should contain., and the form thereof. It is not necessary that the notice should be in writing; but it is generally given in writing, as in that mode, evidence of it can be better preserved. No particular form is required, but it should inform the party that a demand has been made on the instrument, payment refused or neglected, and that he to whom the notice is given, is looked to for payment. The holder may inform the indorser or other party of this himself, in the presence of a witness, or send word by some other person. In order, however, to prevent all future difficulty, the better way will be to draw up a notice, substantially as follows: To C D . I have this dny doinnndcd of E D , jiaymont of the note (p) 3 Ohio Rep. 407. (q) 3 Kcnt'ii Corn. 107. 406 PROMISSORT NOTES BILLii B0NJJ8, [i^r/. 2, 7V/. 3 1 , made by him to you, dated January 1st. 1847, for sixty dollars, pay- ablo ten days after dale, and indorsed by you, to me. E I) refused payment, and I, as indorsee, look to vou for payment. I am, &LC. ' ' I ' J . January 11, 18 17. The notice can be easily varied to meet the case of a drawer or indorser ot" a bill, or a iirst, second, or third indorser, &:c. The notice will be nood, althou NOTICE OV NON-PAYMENT, VriLL BE EXCUSED, AND WHEN NOT. A bill of exchange is generally presumed to be drawn under tFw belief that the drawee has money, goods, or other effects of the drawer, in his hands, out of which he will be able to pay the debt. Now, if the drawee has not in fact, any effects in his hands belong- ing to the drawer, and the drawee does not owe the drawer, and for that reason he refuses, on demand, to accept or pay the bill, no notice to the drawer is necessary. This exception to the general rule proceeds on the ground, tliat the drawer has been guilty of a fraud, in drawing a bill under such circumstances, and that notice to him would be useless. If, however, the drawer draw the bill under the honest expectation of ell'ccts being in the hands of the drawee, as where he had sent goods to the drawee, which had not arrived; in such cases, notice must be given to the drawer. So, also, notice must be given to the drawer, if the want of it would produce any detriment to hirn: as for instance, if notice had been (a) 5 Cow. 303. 408 PROMISSORY NOTES BILLS EONUS. [P/'Z. 2, T/7. 31, given, and the bill taken up and paid by the drawer, he would have had a remedy over against some other person. But this exception only relates to the drawer, for the indorsers of a bill drawn thus fraudulent!}', must have notice of the demand and nun-payment, as in other cases. If demand has not been made, and notice of non-payment of a bill, bond, or note, has not been given; yet a subse([ucnt promise to pay, by the party entitled to notice, will amount to a waver of demand and notice; provided the promise^ was made clearly and unequivocally, and with full knowledge of the fact, that there was a want of due demand and notice.* Notice is excused to an indorser for whose accommodaliun the instrument was indoi'sed; for then he is the one who is ultimately liable to pay it." If the maker of a note or bond, being insolvent, assigns his pro- perty to an indorser, in order to secure such indorser against his liability as indorser of the same bill, note or bond, in such case, the indorser who has received the assignment will be liable upon his indorsement, though he have no notice of the demand and non- payment of the note or bond.'' So, notice is not necessary to an indorser, who, before the note or bond is due, has informed the holder that the maker has absconded, and requests further time of payment,*^ \Vhen a malignant fever, or pestilence, like the cholera, prevails at the indorser"s place of residence, delay of notice to him until the pestilence has subsided, w ill be excused.^ Demand is excused, where the maker, drawee or acceptor, has absconded; or has, since the instrument was given, removed out of the State ;(l) but notice of non-payment must be given in such cases, to charge the drawer or indorsers. When a party wishing to make demand, or give notice, is igno- rant of the residence of the di'awer, maker, drawee, or indorser, it is not enoygh that he barely in{[uire for him at the place where the instrument is payable; but he should inquire of others, whose names appear upon the instrument. If he use all reasonable diligence to find out where the party resides, and is unable to ascertain it, de- mand or notice upon such party will be excused. When the drawee or maker has merely removed to another part of the State, the demand should be made at his new abode, if known; if not known, then due iufiuii-y after the party, with a view to make a demand, will be sufficient.^ Calling at the drawer or indorsers place of business during busi- ness hours, and knocking loud enough to be heard, and repeating this two successive days, with a view to give notice, the door being each time locked, is enough to excuse the want of actual notice.** (a) 12 Whea. 183; 1 T. and R. 712; 5 Johns. (d) 1 Johns. Ca. 99. Rep. 375. (c) 2 M. 1. (b) 11 Johns. Rep. 180. (g) Chilly, Jr. on Bills, 49. (c) 5 Mass. Rep. 170; 1 Serg. and R. Rep. 334. (h) 1 M. and S. 545. (1) See page 404. §13.] PROMISSORY NOTES BILLS BONIiS. 409 Demand and notice is excused, if tlie instrument is void tor for- gery; or be giv^cn for money made at betting or gaming.® The law does not require a person to do what is impossible to be done. If the instrument cannot be presented for acceptance, or demand, in the regular time, from some inevilahh accident^ not in- volving the holder in any negligence or blame; as the detention of the instrument by adverse winds; rendering a presentment or de- mand in due time impossible, the rule shall be relaxed in favor of the holder, and the delay in elTecting the presentment or demand, will be excused. Still the earliest possible presentment must be made, wdien the impediment has ceased. The accidental and temporary loss of the instrument by the hol- der, or its being stohm ivo\n him, will also excuse a delay in present- ing it for payment or acceptance. In these cases, is is proper to inform the various parties of the cause of delay. If a bill be refused acceptance, and notice of non-acceptance has been given, it is not necessary to demand payment upon it, nor to give notice of non-pay ment.S' The insolvency of the drawer, or drawee, maker, or acceptor, or the death of the maker, drawee, or acceptor, will not excuse a de- mand on the instrument, and notice: nor will the knowledge in the indorser, at the time he indorsed the paper, of the insolvency of the maker, excuse demand and notice.^ Indeed, in all cases, except such as come within the principle of those above enumerated, the holder must make demand of payment, and give notice of non-payment; otherwise the drawer and indorsers will be discharged. Jt has already been stated, that a person who delivers one of these instruments,(l) or other chose in action, (2) without indorsing it^ may, under some circumstances, be sued for the debt or consideration, in respect to which the instrument or claim was delivered by him. Such transferrer, it is said, cannot require from the holder, the strict observance of the rules above laid down, in relation to the time of demand and notice of non-payment. For, as to such transferrer, a formal demand may be excused, by showing that the acceptor or maker had become insolvent before the instrument or claim became Hue; that it would not have been paid, if presented; that the de- fendant was aware of the fact, and that no injury resulted from the otnission.' But if no such excuse exists, then demand should be made, and notice should be given, within a reasonable time.'' In such cases, however, and also where a person by an independent memorandum, has guarantied the payment of a note, bond, bill, or <')lher claim, it is safest to m.nke demand, and give notice with the })romptness herein before directed; for, it is clear, that if loss or (ej) 9 Mass. Kep. 1. (k) 5 Jolins. Rep. 375. (Ii) :J Kciit'.H Corn. 1 U). (k) lU.U).; 2 0liioKc|). 430. (i) 8 Knpf. C. L. Pep. R; 5 M. nnd S. 62; 8 Kast, 242; 10 KiiK. C. L. Rep. 145; 7 I'ct. U. S. liep. 128; Cliiiiy, Jr., on Bills, 48 a. 69; 12 Pet. 503.. (1) Sec paijc 400. (2) Sec piiijcs 212, 21.'), 52 410 rUOMISSORT NOTES BlLLfi — ;BONl)_S. [P/'Z. 2, Tiif/c 3 1 , prejudice has accrued to tlic transferrer, or guarantor, lioin delay in uudvinii; the demand and giving the notice, lie will be disciiarged: at least to the extent of the detrinient.'(l) SkC. XIV. IN VVilAX UAst.:? i IIK W AN 1, Oil i- AILL KK OF GONSIDKRATION.; ETC., MAY BE SET UP AS A LiEFENCE.(2) By the transfer of a negotiable instrument, there arc a great number of parties connected with it ; and as it passes from holder to holder, each one who transfers it, obtains some value or consid- eration from the immediate party to whom he delivers it. It will therefore be perceived, that upon each transfer, there is a price, motive, inducement, or consideration for it, existing between the irn- medialc jnirties to such transfer^ who are thus connected together in the transaction. To niake tliis matter familiar, for it should be so, as important rules grow out of it; suppose that oiie of your neighbors, (S,) has made to you his note for some corn, and you purchase a horse of A, and transfer and indorse the note of S to A for the horse. A takes the note and transfers and indorses it to J, to })ay him for sui)press- ing a criminal prosecution. Now, the consideration between S and you, is corn; between you and A, a horse; and between A and J, a criminal prosecution, and void. S and you are immediately con- nected together in relation to the corn, and you and A are immedi- ately connected together in relation to the horse, and A and J are connected in relation to the void consideration. First. — When the action is between two parties to an instrument, who stand in immediate coirnection w^ith each other, as the indorsee against his immediate indorser, the consideration which passed be- tween them is a subject of defence; and the want, or failure in whole or in part, or the illegality of that consideration, or a set oli' of a debt due from the plaintiff to the defendant, or any other mat- ter of just defence, niay be set up by tlie defendant. Thus, in the case above stated, if J should sue A on his indorsement, it might be shown by A that the consideration for the ti'unsfer of the note was to supi)rcss a criminal prosecution; and tluis the action would be defeated. So, when the suit is by the drawer against the acceptor, or by the payee against the drawer of a bill of exchange, or by the payee against the maker of a bond or note, they are parties who stand in uninediate connection with each other, and therefore, the same rule (I) Cliitty, Jr. on Gills, 69. (1) See page 328. (2) As to what is a g'ood consideration, and what an illegal one, see pages 285 to 290. ^14.] PROMISSORY NOTKS BILLS BONDS, 411 applies; and the defendant may set up a want or failure, in whole or in part, or an illegal consideration, as between himself and tlie plaintiff, or a set olTof a debt due from the plaintiff to him, or other just defence.(l) Second. — Where, however, the suit is not between two parties who stand in immediate connection with each other, but the action is brought by a tliird person or holder who did not receive the in- strument from the defendant, the want or failure of the considera- tion, in whole or in part, cannot be set up as a defence by such de- fendant, against such third person or holder. Therefore, when the suit is by the payee against the acceptor, or by an indorsee against the acceptor, or drawer of a bill; or the suit is on a note or bond, by an indorsee against the maker; or the suit is by an indorsee of a hill, bond, or note, against an indorser who did not indorse the in- strument directly to the plaintiff, but to another person; in all these cases the defendant is not permitted to show that he became a party to the instnjment without consideration, nor can he be permitted to set up as a defence, a payment to, or a set off against, other parties to the instrument. In such cases, the plaintiff, in general, holds the instrument discha]-ged from all the equities and defence which ex- isted between the defendant and the other parties to the instrument. To this rule, however, there ore various exceptions, which will be now stated. EXCEPTION FIRST. If the plaintiff received a transfer of the instrument without pay- ing any value for it;™ or for an illegal consideration; or not in the usual course of business; or as a security for," or in payment of a debt, which existed prior to, and independent of the transfer;*' or to indemnify him if another debt should not be paid; or with notice of the defence; or after the instrument became due;^ in every such case, the plaintiff takes the instrument subject to all the objections, defence and equities, if any, to wdiich the instrument was liable in the hands of the person from whom he received it, and stands in his shoes. But if the person in whose shoes the plaintiff thus stands, or any other intermediate party between him and the defendant^{^) (m) Chitty. Jr. on Bills, 100, i. (o) 10 Wend. 85; 20 Johns. Rep. 637. (n) 5 Johns. Chy. Rep. 54. 59; Wright's Rep. (p) Bay. on B. (Bos. ed.) 82; WriglU'a Eep. 306; 8 Ohio Rep. .528. 306. (1) Wlicn there is a partial failure of the consideration of a note, bond, bill, or other contract, it does not defeat the action, but only reduces the amount of the recovery. (2) If A execute his note to B, and li transfer it to C, and C to D, and D to E, and E to F, and so throug-h t)ie alpliabet, here IJ is an intermediate party l^etwecn A and C; and if F sue A, then IJ, C, D, and E, are the intermediate parties be- tween the plaintiff F and the defendant A. To illustrate the principle stated in the text, suppose that A makes liis note to R without consideration: B assign.'i it to C, who is a honafulc holder, without notice of the want of consideration; C assigns it to J), wlio has notice of tlie want of consideration Ijetwccn A and B; D assigns 412 PROMISSORY NOTES BILLS BONPS. [Pv/. 2, Title Z\^ received the instrument in the regular course of business, before it became due, and paid full vahie for it, without any knowledge of the defence, objections, or ecjuities, against the instrument, then the plaintill" is. in general, entitled to all the righls and protection of such micYmoxWwic bona Jidc party, and stands in his shocs.''(l) There- fore, whore a bill was accej)ted for a debt contracted on a sniug- glin"" transaction, and indorsed for a valuable consideration, befoie it was due, to a hoiK/Jhh; lioidn^ who indorsed it aflcr it become dur^ to the plaintilf; held, tljat as the indorsev might have sustained an action on it against the acceptor, so mighf the indorsee, and that it was not competent to the defendant to set up the illegality of the original consideration as against the plairttifi^ though it would be a good defence to an action by the payee. Whei'e a note is given payable on demand, and one, six, or any number of months afterwards, is indorsed, we have seen, that the indorsee, in order to render the indorser liable, must, within a rea- sonable time after the transfer, make demand of the maker, and (q) Ros. on Ev. 167rBay. on B. (Bos. ed.) 349; Cliitty, Jr., on Bills, 100. it to E, who also lias notice of the want of consideration: all the assignments are made before the note is due. Now it w ill be observed that C is the only intermediate party between E and A, who was, at the time tiie note was transferred, ignorant of the want of considera- tion between A and B. If E sues A on the note, A will of course insist upon a right to set up the want of consideration between him and B. And although E stiinds in the shoes of D, from whom he received tiie note, yet as there is an inter- mediate partj', (C) between D and the defendant (A,) who was a honn fide holder of the note, the plaintiff (E), is entitled to all the rights and protection of C; and A cainiot, therefore, set up the want of consideration. If D took up the note by paying E, then D might sue and recover from A, B, or C; if C paid D, then C may sue and recover from A and B; if B took up the note and paid C, and B sued A, the \vant of consideration for the note as between A and B, might be shown, and would defeat the action of B, because tlie suit would then be between two parties to the note immediately connected with each other. (1) Tlie i*ule stated in the text, is thus laid down in Chilly, jr., on Bills, 100, i. *'It seems that a prior party cannot set up as a defence, that he received no value, and that the plaintilT holds w'ithout consideration, if an inttrmtdidle parly took the bill or note bona fide, and gave value for it. In sucli case the plaintiff should, as indorsee, be permitted to recover, as trustee or agent, for the benefit of the in- termediate indorsee for value, who might liimsclf have sued the defendant on the instrument, and who shall be assumed to have indorsed it to the plaintifl", for the purpose of enabling him to sue thereon; it not appearing that such indorsee for value claims the instrument adversely to the plaintiff. "But if the defendant received no value, and the party to whom the defendant made or indorsed the instrument, transferred it to the plaintiff without considera- tion, and the latter holds it under such circumstances without consideration, he in effect stands in the position of the party from whom he received the instrument, and cannot sue the defendant thereon; although at the time of the transfer to the plaintiff he had no notice that the defendant signed tlie instrument without con- sideration. And if, under such a state of facts, the plaintiff gave value for the bill iov part only of the amount secured thereby, he can recover no more than the sum really due to him upon the transaction in respect to which he received the instrument. But when the defendant has received full value for the instrument, the plaintiff, an indorsee, may recover the full amount; although he holds the bill for value to the extent of part only of the sum secured." §14.] PROMISSORY NOTES BILLS BONDS. 413 give the indorser notice of non-payment.(l) If this is not done, it will not all'ect the rights of the holder against the maker of the note, but will discharge the indorser from all liability. These liabilities of the maker and indorsers are here mentioned, that they may not be confounded with the uncertain rules which I am now about to state, in relation to notes and bonds payable on demand. In general, if a note or bond is indorsed and transferred after it is due, the maker may set up any defence against the indorsee which would be a good defence against the payee. There is an exception to this rule, when a note or bond payable on demand is indorsed to a bona fide holder after it is made, who pays full value and has no notice of any fraud, or defence to the note. Although such a note or bond may be immediately sued, without demand, yet there is no time fixed by law when such an instrument, in the hands of an indorsee, is considered as due, so as to let in the defence against him Vv'hich the maker has against a recovery Ly the })ayee. Where a note payable on demand was fraudulently, and without consideration, taken from the possession of the maker by the payee, and seven days after its date, by him indorsed to a bona fide holder, who paid full value for it without any knowledge of the fraud, it was holden that the note was transferred before it was due, and tlierefore that the maker was liable to the indorsee, notwithstand- ing the fraud.'' Where a note payable on demand, was negotiated two months and a half after its date, it was holden that the note was negotiated alter it was due; and therefore stood on the same ground as any other note indorsed when over due.** A note payable on demand, and negotiated eighteen months after it was given, was considered as a note out of time, and then due, so as to'subject the indorsee to the matter of defence which the maker had against the payee at the time it was indorsed.*^ Where a note was payable on demand, with interest, it was hehj that interest being mentioned showed that the parties contemplated that the note should be negotiated for some time after its execu- tion.*^ A note was iliade in Eimland^ and payable on demnnd, and was sued in the State of New York by the indorsee, within a year from its date. The court said, that the maker was not entitled in that case to a set off of a demand against the payee, without proof of a fraudulent assignment; for it was to be presumed that the note was assigned soon after its date.* It will be i)crceived, from these cases, that there is no precise time when such instruments are over (ht.c^ so as to let in that (lefence • »f the maker against the indorsee, which he has against a recovery by the payee. (a) 6 Mass. Rep. 42R; 1 JoImip. Rop. 319. (d) 10 Eiig. C. L. Rep. 345. (1.) 7 Johns. Rep. 70. (c) 1 Johns. Rep. 319. (c) 2 Caine's Rep. 369. (1) Sec page 401. 414 PROMISSORY NOTES B1LL8 IX)Nr>R. [Prt. '2^ Title. 31 ^ EXCEPTION SECONa It is common to indorse, or draw a bill, or make or indorse a note, merely for the accommodation of a iViend, and as a substitute lor the loan of money. For instance, A wishes to raise sixty dol- lars, which Ci is willing to lend liim, for two montlis, if he will pro- cure C and Vj as sureties. A, in order to do this, gets C to draw an order or bill of exchange on E, in favor of himself, (A,) or order, l)ayablc in two montlis. A, takes this ortlcr or bill to E, who ac- cepts it, and then A indorses and delivers the bill to G, who loans the money upon it, knowing that there is, in fact, no consideration given by A to C, and that E, who accepts the bill, owes C nothing. This is called an accommodation bill. The acceptance of E is called an accommodation acceptance. But suppose A, instead of thus procuring an accommodation biH, goes to C, and gets him to make out and sign a note payal)lc to i\, or order, in two months, for sixty dollars. A and E then indorse the note, by putting their names on the back of it. A then takes this note to G, who lends him the money on it, knowing that there is, in fact, no consideration ])etween the parties for the execution of the note, or for the indorsements. This is called an accommo- dation note, and E is an accommodation indorser. A^ow, as be- tween all the parties, except A and G, there is no consideration; but G is an innocent holder, has paid the value of the instrument, and none of the parties can in such case set up as a defence against him, that there was no consideration between them.'^ The parties who sign or indorse accommodation notes, bonds, or bills, for the use and benefit of the principal debtor, are, as between themselves, so far treated as co-sureties, that if they- are compelled to pay the money, they can only recover from each other such an amount as will apportion the loss equally among them: the princi- pal debtor being responsible to them for the whole, whether he ap- pear on the paper as indorser, payee, maker, drawer, or drawee.^ Sec. XV. — now the indorsers &c. may be discharged, by one par- ty OIVING time, &C., to another. It will have been perceived already, that when the payee of a bill, note, or bond, indorses it, he is a kind of surety to the indorsee of the instrument; being liable to him and to all who afterwards receive the bill, in case he has notice of demand and non-pyament, and may ])e sued immediately after such demand and notice. The payee has also a right, at any time after the instrument is thus dis- honored by not being paid, to pay it himself, and immediately to sue the drawer or maker; and if it is accepted, to sue the acceptor. So, where the instrument is indorsed by S to J, and is dishonored by non-payment, S may at any time pay .1 and take up the instru- (n) ? Jobns. Ecp. 361. (I>) 1 Oliio Rep. 420. 615] PROMISSORY NOTES BILLS BONDS. 415 inent, and then immediately sue those who indorsed it before fie did; and. lie may sue the maker, if it be a note, and if it be a bill, he may sue the drawer, and also the drawee, if the drawee has accepted it. They, too, who indorsed it beforeS did, have all tlie same right to pay and take up the instrument, and immediately sue the prior parties. Now, this right, of thus paying and taking up the bill, bond, or note, and of immediately suing, must not be disturbed by any ao-ree- ment of the parties to tlie instrument; if it is, it discharges the lia- bility of the party whose right is thus disturbed. Suppose, for in- stance, that the holder should, upon a sufficient consideration, ao-ree with the acceptor to give him further time to pay the bill; this would disturb and destroy the right of the drawer, payee, and in- dorsers, from imnlediately suing the acceptor, if any one of them wishes to pay and take up the bill; and therefore, all of them would be discharged from all liability on the bill. Simply delaying to sue the acceptor of a bill, or the maker of a note, or bond, or takino- other security from him, would be no discharge to the other parties; because it would not aftect their right to pay up and sue immedi- ately. . For the same reason, receiving part of the debt from the acceptor, or maker, does not discharge the other parties to the in- strument. The acceptor, or nuiker, is first liable; and the indorsci's are lia- ble in the order in which they stand upon and became parties to the instrument. Now, if, for a sufficient consideration, the la.st hold- er or indorsee of tlie instrument, should give time to his immediate indorser, this v*'ould not affect the above mentioned rights of those ])arties and indorsers who indorsed the bill before the immediate indorser of the holder; for the immediate indorser of the holder is liable to the holder only, and therefore giving time to him, or even releasing him,* will not discharge the prior indorsers and prior par- ties. But suppose the instrument was indorsed by A to B, and by B to C, and by C to D: now if D gave B time to pay, this would discharge C, for B was liable to C ©n the indorsement; but it would not discharge A, for B was not liable to A on the indorsement, and it would not therefore disturb, or in any way ailect the right of A to pay the bill and immediately sue all who are liable to him. If the agreement for delay, or further time, is not founded upon any consideration, it is void, and will not affect the rights, nor be binding upon any one. Thus: in the instance just stated, if 1) pro- mised to give B time, and B gives no further security, nor does any act as an inducement or consideration for this promise, it is a nullity and B may bo immediately sued by ]), or by any other l)arty to whom he is liable,'' If A, a party or indorser of the instrument, is released by payin<>- a part in discharge of the whole amount of his liability, this also discharges all the parties to whom A was liable on the instrument, as it deprives them of the right of resorting to him.'' (a) 3 Kent's Com. 112. (c) Clillty ou nilla. (Jf. Y. Ed iS3J) 300. (h) 12 Wliou. Kop. 554. 4 1 6 PROiMlSSORY NOTES HILLS UONHS. [P/7. 2, Tltld 3 1 , So, if tlic holder of the rnstruiacnt take u new instrument of A, for the amount for which he is hable, payable at a future time, or in iliscliariTC of his hahihty, this will discharge all to whom A was liable on tnc instrument.'^ A i)erson who has once been discharged, by laches, from his lia- bility on a bill, is always discharged. It* has been lield that an accommodation acceptor was discharged by the holder giving time to the drawer, with knowledge that it was an accommodation bill. But that decisioniias been overruled.® The statute in relation to bail and sureties,^ provides, that where one of the parties to a bond, bill, or note, is surety for another, no- tice may be given to the holder of the instrument, in writing, to sue the ])rincipal debtor. So, where a note or bill is indorsed for the accommodation of one of the parties, and tiiis fact was known to the holder when the instrument wnis transferred, notice could be given him under the statute.'' If, after notice in writing has been given, the holder neglects for an unreasonable time to sue, the sure- ty giving the notice will be discharged from all liability.(l) The statute, however, docs not, in gcnend, apply to common indorsers, as they are all liable to be separately sued by the holder as princi- pals, and arc not considered as sureties. Sec. XYl. — OF the uights and obligations of parties to a lost, STOLEN, OR FORGED NOTE, BOND, OR BILL. And first, what is a forgery. Any material alteration made in a bill or note, such as in date, place of payment, sum, time Avhen payable, or in the statement oi the consideration after it has been completed, without the co-nsent oi the parties thereto, W'ill make it void, for it ceases to be the same instrument. But if the alteration be immaterial it will not aflect the valitlity of the instrument, even as against a party not consenting. To sign the name of a fictitious or non-existing person is a for- gery. It is also a forgery to sign a man's own name with intention tliat tlie signature should pass for the signature of another person of the same name. An alteration made to correct a mistake will not vitiate an instru- ment. Where a bill was dated by mistake, in 1822, instead of 1823, and the agent of the drawer, and acceptor, without their knowledge or consent, corrected the mistake: held not to render (ci) 2 Kent's Com. 112. (g) Stat. 877. (e) 1 Eng. C. L. Rep. 72. (Ii) 1 Oliio Kep. 420. [1] II seems, that where the principal aiul surety have expres&Iij bound tliem- sclvcs in a bond, or sealed note, as principals, they cannot have the benefit of this notice, under the statute; but arc, .so far as regards tlie payee and indorsees of the bond or sealed note, to be treated as principals. 7 Ohio Rep. Hut when the in- strument is not under se:d, the surety, in such case, may siiow that he is surety, and claim the benefit of the statute. §16.] PROMISSORY NOTES BILLS BONDS. 417 the bill void. We have ah-eady seen that if a blank be left in a bill for the name of the payee, a bona Jide holder may insert his own name as payee. A bill, bond, note, or contract vitiated by alteration, is inadmis- sible in evidence, for any available purpose in favor of the holder. It is void as a security, and the alteration takes away the remedy against every party between whom and the holder there is no pri- vity; bat it does not operate as an extinguishment of the debt or consideration, which may be recovered if proved by other evidence, unless the alteration be made by the creditor, and the rights of the debtor might be thereby prejudiced.* Where the buyer of goods paid for them by his own acceptance, and the seller altered the date of the bill, whereby it was vitiated; held that he did not thereby preclude himself from suing the accep- tor for the original debt, and that he might recover for goods sold.*" But where the vendee of goods paid for them by a bill of ex- change, which he drew on a third person, and the vendor altered the tmie of payment whereby the bill was vitiated; held that by so doing he made the bill his own and caused it to operate as a sat- isfaction of the original debt, and consequently, that he could not recover the price of the goods from the vendee. Lord Tenterden, in delivering the judgment of the court, said, ^^It is perfectly clear that a bill of exchange will operate as a satisfaction of a preceding debt, if the holder make it his own by laches, as by not presenting it for payment when due. Here the plaintiti', by altering the bill in a material part, made it his own, as against the defendant, and caus- ed it to operate as a satisfaction of the debt for which it was origi- nally given. Allowing the plaintiff to recover the value of the goods in this action, and the defendant to bring a cross action for the special damage sustained by reason of the destruction of the bill, would lead to a multiplicity of actions, which is against the policy of the law.'"^ Where it is shown tiiat the bill has been lost, or fraudulently or feloniously obtained from the rightful owner, the holder who sues must prove that he gave a valuable consideration for it.*^ If a party exercising due caution, has by mistake paid money on a forged instrument, and has been guilty of no laches whereby the rights of a third party have been affected, lie may recover back the sum so paid in an action for money had and received.^ It has already been stated, that where a note, bond, or bill, is payable to A or bearci\ it can be transferred by mere delivery; and where it is payable to A or order^ or assigns, and is indorsed in blank, any subsequent holder may also transfer it by mere delivery. It will therefore be peiceived, that if an instrument payable to bearer, or indorsed in blank, is lost or stolen, it will be easy for the thief or finrler to transfer it, by mere delivery, to an innocent hold- er. Such innocent liokicr, if he received theinstrument in the usual (a) 22 Ei.R. C. L. Rep. 323. (r it, without notice of the cir- cumstance, and not l)eing gviilty of gross neglect, may recover against all the parties to it, the same as if lie came to it by the liands of the owner oi' it.^ If the instrument is pnyable to A or order, or assigns, and is not indorsed by the payee, and lie loses it, or it is stolen from him, and the thief, or finder, forges an indorsement in blank, in the name of A, the payee, and then transfers it by delivery to an innocent hold- er, Avho pays full value for it, and takes it under the belief that the • signature of A is genuine, the holder cannot recover upon it; for he should have ascertained, before he took it, whether the signature of A was a forgery, or not: and if the draw'ee, acceptor, or maker, pay to such holder the fimotTnt of such bill, bond, or note, he must pay again to A, who does not lose his remedy on the insti'umentJ' But if such innocent holder indorsed the instrument to C, the holder would be jiablc to C, on his indorsement; though in every other re- spect, C would stand in the shoes of the indorser. The snme rule is applicable where the instrument is not indoi'sed in blank, but is indorsed to a person, or order, or assigns'; for no one but the person to whom the instrument is thus indorsed, can transfer it by the act - of indorsing; and therefore the thief, or finder, must forge an indorse- ment in order to transfer it, and the holder then takes it at'his peril. If a bill is forged in the name of C on E, and E (iccepts it^ he will be bound to pay it to any innocent holder who has paid value for it, and received it in the regular course of business.' Those who indorse a forged instrument, are not only liable on their indorsement the same as if the instrument were genuine, but there is always, in law, an implied warranty by any one who in- dorses or delivers an instrument, that the same is not forged, even where it is transferred '•'•without recourse," or ''at the risk" of the indorsee.'' In all cases where the instrument is so payable, or so indorsed, that the finder, or thief, can transfer it without forgery, and by mere delivery, the owner of the instrument cannot, if it be lost or stolen, sue the parties to it; for they may be liable to some innocent holder:' and if such instrument, so payable, or so indors- ed, be paid by the acceptor, or maker, when it becomes due, even to one who holds the instrument by fraud, theft, or finding, such payment is good. If, however, the acceptor or maker had notice of such fi'aud, theft, or loss,"" or was guilty under the circumstances of gross neglect in paying the instrument, he will still be liable to the true owner." A plaintiO'may be a witness to prove the loss or destruction of a note, bond, or bill, but nothing more; and where a suit is brought upon a note, bond, or bill, that" is stolen or lost, it will be presumed, until the contrary appear, that it was not negotiated before it w^as (g) ChittyonBills, 149;27Eng.C.L. Rcp.234. (k) 5 Jolins. Rep. 240. 276. overrules the case in 4 B. and 0. 330. (1) 2 Campb. Rep. 211; 14 Eng. C. L. Rep. 20. (h) 3 T. R. 127. (m) Cliitty on Bills, 148. (i) 4 M. and S. 15; 4 Dal. 235; 1 T. R. 655. (n) 27 Eng. C. L. Rep. 234. §16,17.] PROMISSORY NOTES BILLS BONDS. 419 stolen or lost; but it is for the defeiiTiant to sliow the fact, in his defence." An action can he maintained upon a note-, bill or bond, that is destroyed; for, in such case, it could not pass into the hands of an innocent holder. Where a bank bill has been divided 'for transmission by mail, and one of the parts is lost, the holder may recover on presenting the other part, as the parts of a divided bill are not separately ne- gotiable.P Sec. XVII. — of the rights anm obligations of parties to a bank CHECK. A check is a written order or reciuest addressed to a bank, or its cashier, and drawn by a person having money in the bank, request- ing the bank, or its cashier, to pay on demand, that is, on present- ment, to a person therein named, or to bearer, a named sum of money. Tlie person who draws the check is called the drawer; the per- son upon wdiom it is drawn, (the bank,) is called the drawee; and the person to whom the money is directed to be paid, is called the payee. In order to render the drawer of the check liable to the holder, it will be sufficient, if a demand upon the bank has been made, at any time before suit brought thereon against the drawer, unless it appear that the bank has fjuled, or the drawer has, in some other manner, sustained injury by the delay. i In general, however, it is safest for the holder, whether payee, indorsee, or one who has re- ceived the check by mere delivery Vvithout indorsement, to imme- diately present the check for payment, during the usual hours of banking business; and if not paid, to give immediate notice to the drawer and other parties, to whom the holder looks for payment. When a check is drawn without funds in the bank, and without any reasonable expectation that the bank would pay the check, the drawer will not be discharged by the holder's not presenting it in due time, or not giving notice of its non-payment.'' But the hold- er should, in such case, give immediate notice to the person from whom he received the check, of its non-payment, in order to render him liable. When the payee of a check has indorsed it, or delivered it w^ith- out indorsement to a third person, for value, he thereby tacitly en- gages that the bank will pay it when presented, and that, if the bank refuse to pay, he will, upon' notice thereof, pay it himself, A person who transfers a check by mere delivery, without in- dorsement, may, upon the non-payment of the check, be sued by the person to whom he delivers it, for the dchi on account of which the check was received. (o) 1 JolDiB. Itcp. 10-1. 00 .3 JcliiiR. Ca. 5. 2i9; 7 Kng. C. L. Rep. 402; (p) 4 W.iHli. C. C. Rep. 253; 4 Rand. Rep. 186. 3 Kent's Com. fiS. (r) ft Ilar. ^ JoIhih. ;i81; 1 Hall's N. Y. R. 70. 420 I'ROMISSORV NOTES BH.l.S BONUS. [Pr/. 2, TifkSi, It is indispensublo in order to render ihe drawer, indorser, or transferrer witliout indorsement, liable, that the instrument should be presented to the bank ibr payment. The presentment ibr payment must be made during the usual Jiours ol business. A bank is bound to pay a check drawn by a person who has suf- ficient funds in its hands applicable to that purpose; and will be liable to a special action upon the case, at the suit of the drawer, for neglect or refusal.' But if a bank refuse to pay a check, the holder cannot sue the bank, but his remedy is against the drawer^ transferrer, and indorsers. Bank checks, like bank bills, when payable to a person or bearer, or to bearer only, are legally transferable by mere delivery; and they cannot be followed by a party who has lost, or been cheated, or robbed of them, into the hands of a person who has subsequent- ly taken them bonajide^ for value — under circumstances not likely or calculated to create such suspicions as would amount to gross negligence,' If a bank pay a forged check, the bank, and not the person whose signature is forged, has to sustain the loss, though the forgery was so well executed that it was not discoverable on ordinary inspec- tion. If, however, a bank pay to A, the innocent holder of a forged check, its amount, the bank may recover it back from A, as money paid to him by mistake; provided the bank give A notice on the day it is paid that the check is a forger}^^ If the bank discover the forgery on the following day, so that the time is passed for A to give notice in due time to his indorser, or transferrer, of the non- payment of the check,(l) the bank cannot recover back the money from A.^ When a check, drawn upon a bank for a sum of money, describ- ed in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for that men- tioned in the check, but in such a manner that no person in the ordinary course of business could observe it, and the bank paid to the holder this larger sum; it was holden that the bank could not charge the drawer for any thing beyond the sum for which the check was originally drawn."' When, however, a check is so carelessly drawn, that an altera- tion may be easily made, the loss arising from the alteration must be borne by the drawer. Thus: a customer of a bank delivered to his W'ife certain printed checks signed by himself, but with blanks for the sums, requesting his wife to fill the blanks up according to the exigency of his business. She caused one to be filled up with (8) 20 Eng. C. L. Rep. 412. (v) 17 Id. 517. (t) 27 Id. 234. 276. (w) 12 Id. 368. (1) It may admit of doubt, whether in this country, a delay to give notice of the non-payment of a check for a single day would discharge the indorser, or transferrer of a check. See 3 Kent's Com. 88. §17.] PROMISSORY NOTES RILLS BONDS. 421 the wordsjifty dollars^ the fifty being commenced with a small let- ter, and placed in the middle of the blank line: the figures 50 were also placed at a considerable distance from the printed $': in this state she delivered the check to her husband's clerk to receive the amount; whereupon he inserted at the beginning of the line in which the word Jifti/ was written, the words t/iree hundred and., and the figure 3 between the ^ and the 50. The bank having paid the ^350, it was holden that the loss must fall on the drawer.* If a bank, under circumstances which should have excited suspi- cion, pay a check which was drawn by a customer, but afterwards torn up or canceled by him, and not meant to be sued, the loss must fall on the bank.'' (a) 13 Eng. C. L. Rep. 420. (b) 2 Camp. 485. TITLK XX XII. SALES. SECTION I. WHEN A SALE IS COMPLETE. II. OF THE IM.ACE OF DEMAND AND DELIVERY. III. OF THE MODE, AND TIME OF DAY, IN WlllCIf DEMAND AND TEN- DER SHOULD BF, MADE. IV. OF THE TERKOliMANCE OF A CONTRACT OF SALE, AND THE EFFECT OF A DELIVERY OF PART OF THE PROPERTY. V. OF THE EFFECT OF A TENDER UPON THE RIGHTS OF THE BUY- ER AND SELLER, AND OF THE DAMAGES IN SUCH CASE, AND WHEN NO TENDER IS MADE. VI. OF THE REMEDY FOR DEFECTS IN THE aUALITY, TITLE, &C., OF PROPERTY SOLD; AND HEREIN, (^4) Of the fraudulent concealment^ oi- yjiisrejn'eseyiiatioyi of the (jua.lity of things sold. (B) Of the different kinds of warranty. (C) Of implied loarranty of title and quality. {D) Of express warranty of quadity. Sec. I. WHEN A SALE IS COMPLETE. In general, a sale of goods and chattels is the transfer of the ownership from one person to another, in consideration of some price paid, or agreed to he paid. It is important to know at what period in a contract of sale, the ownership of the property passes from the seller to the buyer; for from that time, (though the property be not delivered,) it is subject to an execution against the buyer: he rnay maintain an action for its conversion; and if destroyed by accident, without the gross neg- lect of the seller, the buyer must, notwitiistantUng, pay the price and bear the loss. When the terms of a sale are agreed uj)on, and the bargain is struck, and every thing which the seller has to do with the goods is complete, the contract of sale becomes, in general, perfect, and the property and risk of accident to the goods vest in the buyer, with- [Prt. 2, Tit. 33, §1.] SALES. 423 out actual payment, or delivery; provided immediate payment, or delivery, be tendered. Thus: II' I have property, and state to you my price, and you say you \vill give it, the bargain is complete, and you are bound, if I immediately tender to you the article; and I am bound, if you immediately tender to me the price: But if, in such case, neither the money be paid or tendered, nor the goods deliv- ered or tendered, nor any agreement be entered into about the payment or delivery, it may be presumed that the bargain was abandoned by both parties, and neither will be bound by the con- tract. For where nothing is said at the time of a sale, as to the time of payment and delivery, the buyer is not entitled to the goods, nor can he sue for them without immediate payment or tender of payment; and the seller cannot sue for the price, without immedi- ate delivery, or tender thereof. In such case, the party who oflers to perform may sue on the contract, or consider it dissolved and abandoned.^ But if goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the buyer is immediately enti- tled to the possession and the right of possession, and the ownership vests at once in him.^ If A, by letter, oflers to sell B certain specific goods at a certain price, the contract is complete the moment that B luriles a letter to A accepting the terms; whether the letter reaches A one or more days afterwards, or not.*^ Where the contract is complete, as in the case of an actual sale, it is binding, though it be agreed that one party shall have the op- tion of putting an end to it, or determining it.*^ The goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before tlie ownership can pass to the buyer. It is a fundamental principle, pervading every where the doctrine of sales of property, that if the goods be sold by number, weight, or measure, the ownership does not pass from tiie seller to the buyer until they are weighed,'^ count- ed, divided,^ or measured.'' So, if any act remain to be done by the seller about the goods, to complete the sale, — as, if he is to mend or improve them, or ascertain their quality, or deliver them on another day, or at another i)lace; in general, the ow'nership, un- til this be done, will continue in the seller.' But where there is an immediate sale, and nothing remains to be done by the seller, as between him and the buyer, (as, if a stack of hay be sold, which (a) Dyer, 30 (:i): 1 FT. lilark. Rep. 363; 3 Cow. not liallc lo an anion, lor not ilclivorins ilic Rep. 85; 5 Johns. Rep. 410, 411. pooils; lor H, not hciiiK hound liy tlic ori|{inal (b) 10 Eng. C. L. Rep. 480; 2 Kent's Coin, contract, thore was no consideration to bind A. 492.496. (d) 16 East, 45. (c) I Barn, and .Md. 681; 6 Woiid. 103. See 1 (c) 2 Maule and Selw. 397; 13 East, 522; 5 Pick. Rep. 278. 283. Tlie ra?c in 3 T. R C53, Taunt. 617. was where A, liavins; proposed to sell goods lo 15, (g) 2 Canipli. 240; 6 East, 614; 2 Maulo and gave liim a certain lime, at liis rcciuest, to deter- Selw. 397; 7 Ohio Ucp. I'rt. 2, 127. mine whetlier lie would buy thcin, or not. B, (li) 12 Enjr. C. L. Rep. 380. within tlie time, deierniincd to huy tlieni,and Rave (i) 7 Cow. Rep. 85; 7 Wend. Rep. 404. notice llicrcof to A. It was l:oldcn that A was 424 SALES. [Frt.Q,TiflcS^2, the buyer himself is uftervvards to take away.) the property in the thing sold vests in the buyer at tlie time of the sale.*(l) If you order a [)erson to send you a certain (juantity of goods, on a certain crecUt, and he send you a less (juantity, or a ditrcrent kind, or send the goods and reijuirc a shorter credit, you may re- fuse to receive the goods, as the seller has not acceded to your terms;'' but if you accept the goods, they are then yours, and you are liable to pay for them according to the terms of the seller.*^ If you sell me property, and it turns out that at the time of tlie sale it was dead, burnt, or otherwise destroyed, though the fact was unknown to both of us, the contract is not binding, but necessarily void. But this rule is applicable only w here there is a sale of a specific article; for if you agree to sell me fifty bushels of corn, with- out any agreement as to the specific corn wliich is to be delivered, you must fulfil your contract, though the corn which you intended for me be destroyed. Where goods are ordered to be made, no property, in general, passes to the person for whom they are made, until they are com- pleted and delivered, even though he has paid for them in ad- vance.'^ But if the person who orders an article to be made, find a part of the materials, and the mechanic a part; then the relative value of the materials found, will determine who is the owner when the (n) 13 Ens. C. L. Ucp. 199; 11 Johns. Rep. (c) 3 Johns Kep. 534- 283; 1 Taunt. 457; 13 East, 522; 12 Id. (d; 10 Enj;. C. L. Rep. 13G; 1 Taunt. SIR; 14 614; and see 2 Mau. and Sel. 404, where Euj. 0. L. Rep. 9; but see 7 Eng. C. L. the case in 12 East is re\'iewed. Rep. 310. (b) 7 Johns. Rep. 470. (1) Where goods are sold to be paid for in 30 days, and if not carried away at the end of th.-it time warehouse rent to be paid for them, it was held that the pro- perty in llie goods vested absolutely in the purchaser from the moment of the sale. 1 Camp. 413. 4.52. Where turpentine, in casks, was sold by auction, at so much per cwf. and the casks were to be taken at a certain marked quantity, ex- cept tlie two last lots, out of wliich tlie seller was to fill up the rest before they were delivered to the purchasers, the buyers to liave an option to let the casks remain in tlie warehouse of the sellers witliout paying rent for 30 days; and the sellers had all the casks except ten filled up, but left the bungs out in order to en- able the custom-house officer to gauge them; but before the rest could be filled up, a fire consumed the whole in the warehouse, within the 30 days; it was lield by the court, that every tiling having been done by the sellers which lay upon them to perform in order to put the goods in a deliverable state, they remained at the risk of the buyers, — excepting the ten casks, tlie property of which, they not having been filled up according to the contract, did not pass to the buyers. 1 1 East 210. Where several bales of skins, stated in the contract to contain five dozen in each bale, were sold at a certain sum per dozen, and it was the duty of the seller to count over the skins, to see how many each bale actually contained, but before any enumeration took place the whole were consumed by fire; it was holden that an action could not be maintained against the purchaser for the value of the skins, and that the loss fell entirely upon the seller. 2 Camp. 240. 242, no/e. §1,2.] SALES. 425 ?"naterials are united.* For instance, if you furnish a tailor with cloth, and order a coat to be made, and he use his own thread to make the coat; here the materials you furnished are the j^rincipal and his merely secondary to yours; and consequently, the thread became yours the moment it was united to the coat. But if you order a tailor to make you a coat, he finding the cloth and you the thread, the cloth and thread are both his the moment they are worked up, and the ownership does not pass to you until completed and delivered. The ownership, in such cases, turns on the question, whether the mechanic, or the person who ordered the article to be made, furnished the principal materials in point of value. An agreement between the buyer and seller, at the time of a sale, that the latter may resume possession if the price be not duly paid, is a personal contract, binding on the buyer, but wiU not authorize the seller to resume, the possession of the goods if the buyer has sold them, or if they, by his decease, have passed to his legal represen- tative.^ The ownership of goods does not pass by a fraudulent or illegal sale, or transfer. Therefore, if a storage merchant, or a boatman on the canal, or other person, without leave of the owner, sell the goods in his possession,*^ the buyer acquires no right to them, as against the true owner.(l) So, where a person obtains goods from the true owner upon false pretences, or under color of purchasing them, the property is not changed, and the buyer may be sued for the goods^ before the expiration of the credit agreed to be given. ^ Therefore, where an infant falsely represented himself to be of full age, and by means of such fraudulent representation purchased goods on credit, it was holden that the sale was void, and that the seller might reclaim the goods, or bring an action of trover for them.® But if goods thus obtained by fraudulent pretences from the true owner, icho intended at the time of the sale to part with the ownership^ should be sold by the fraudulent buyer to a bona fide purchaser, who is ignoi'ant of the fraud, he will hold them against the original owner.s Sec. II, OF THE PLACE OF DEMAND AND DELIVERY. Contracts made for the delivery of goods at a future period, are , sometimes silent in relation to the time and place of delivery; and it often becomes difficult to ascertain, from the contract, whether the purchaser was to call upon the seller and receive tlie articles, or the seller was to transport the articles to the residence of the buyer, or some other place. (a) 7 Johns. Kep. 472. (d) 2 Enp. C. L. Rep. 25; 1 Esp. R. 430; 0>) 14 EiiR. C. L. nop. no. 17 Kiis C. L. Kep. 330. (c) 2 Campb. 335; 5 Wend. Rep. 32. (e) 15 Mass. Rep. 359. (g) Id. 1.56; 8 Cow. Rep. 31. (1) See pag-cs 22, 23. 54 426 SALES. [Prl. 2, Title 32, The following rules upon this suhjcct, seem to be settled: If the contract is silent as to the place of delivery, and contains a promise to deliver on demand, the place of business, or residence of the seller, is the place where a delivery should be made; and a demand by the purchaser is necessary, before a suit can be brought by him on the contract. In such case, the store of the seller, if he is a merchant; or his shop, if he is a muiiufacturer or mechanic; or if he is a farmer, his farm, at which the commodity sold is dej)osited or ke))t, is the place where the demsuid and delivery are to be made."^ If the contract is silent both as to the time and place of delivery, the same rule as above stated, in relation to demand and place of delivery, holds.'' Thus: a person promises to pay another, in farm produce, thirty-five dollars, at market price, without stating time or place; herr^ a demand is necessary at the debtors or seller's resi- dence, betore suit can be brought.*^ The rule in these cases seems to be founded upon the fact, that an act, (a request to pay,) is first to be done by the buyer or credi- tor; and hence a tender or delivery may be made, at the same place where it is necessary to make the demand. If die contract is silent as to the place of delivery, and contains a promise fixing the day or time of delivery, no demand need be made by the purchaser; but it may sometimes be dilHcult to ascer- tain where the pioperty should be delivered by the seller. In such case, the nature and use of the article contracted for, and other collateral circumstances, may determine the place of delivery in- tended by the parties.'' If the contract, or note, is for grain, cattle, salt, hogs, or other portable articles, the place of business or resi- dence of the buyer or creditor, or such other reasonable place as he may designate is the place where the debtor or seller must deliver the property.^ If the articles are not portable, but ponderous and bulky, such as lumber, &:c,, and no place of delivery can be infer- red, the seller or debtor must call on the purchaser or creditor, be- fore the day mentioned in the contract for delivery, to know where he will receive the articles; and they must be delivered at the place designated by him.^ If no place, or an um'easonable one be desig- nated by him, the seller may deliver the articles at such place as circumstances show to be suitable and convenient for the purpose intended, and presumptively in the contemplation of the parties when the contract was made.'' It is, in general, the duty of the seller, in such case, to separate the part to be delivered, from his own.' (a) 2 Kent's C n. 505; 2 Bibb, 280; 16 Mass. (e) 4 Wend. Rep. 377; Cliipm. 25, 26; 453; 5 Wend. 187. 5 Wend. 187. (b) Chipm. 49. (») Co. Litt. 210; 6 Cowen's Rep. 452. (O 5 Cow. 516; 4 Wend. 379. (h) 2 Kent's Com. 507. (d) 2 Kent's Com. 507. (i) 6 Cowen's Rep. 452. §2, 3.] SALES. 427 Sec. III. OF THE MODE AND TIME OF DAT, IN WHICH A DEMAND AND TENDER SHOULD BE MADE. In case a person is bound to, and does make a demand of the article agreed to be delivered to him, the question often arises whether the demand was made at a reasonable time and place, and within the spirit of the contract, and the intention of the parties. If the property is to be delivered to the purchaser at the resi- dence of the seller, the purchaser, by himself or agent, should there go and make the demand;* and if the seller is absent, a demand on his wife will be sufficient.'' If the contract requires the property to be delivered at a certain place, on demand, and that place is not the residence of the seller, it is not necessary for the purchaser to go to the residence of the seller, and there maJve demand; he may make it wherever he con- veniently can, but not at such place and under such circumstances, as would deprive the seller of an opportunity to deliver the pro- perty, at the particular place required by the contract. When both the time and place of delivery are fixed by a demand, or by the construction, or express terms of the contract, the buyer by himself or agent, must be there ready to receive the property :*= and if the seller be not there to deliver it, the buyer may imme- diately sue him, without further demand. But it seems if the de- fendant was not there ready to deliver the property, it will be no excuse for him to show, that the plaintift' was not there ready to receive it.*^ If money is to be paid, or any other act is to be performed on a certain day, and at a certain place, the legal time of performance is the last convenient hour of the day for the transacting of business. This rule is established for the convenience of both parties, that neither may be compelled, unnecessarily, to attend during the whole of the day. The custom, however, in certain kinds of business, and in certain places, may regulate this time. For instance, notes pay- able at banks must be paid within the usual banking hours. If a person tenders performance at an inconvenient and unusual hour of the day for the transacting of business, the other party may refuse the tender, on that account, and the tender will not be binding. If parties meet at the agreed place, during any part of the day, tender and refusal though not at the last convenient hour, is suffi- cient; for in this case, neither party is put to inconvenience. If the creditor is not at the place when the debtor arrives with the money or property, the debtor should, in general, be ready, until (a) 2 nil.. 230; Cliipm. 28, 29. ('!) 3 Wash. C. C. Rep. 140; 7 Conn. Rep. 110, (b) 16 Mass. Rep. 4.'3;1. cited in Cliitty's Con. 272, note. («) 12 Johns. liep. 2U9. 428 SALES. [Prt. 2, Title 32, the last convenient hour of the day for transacting business, to per- form the contract on his part/ SjEC. IV. OF THK PERFORMANCE OF A CONTRACT OF SALE AND THE EFFECT OF A DELIVERY OF A PART OF THE PROPERTY. If you agree to deliver to me a load of wood, or the like, I am not bound to receive a half a load; or if you agree to deliver me one hundred barrels of flour, at a certain time, I am not bound to re- ceive ten barrels; but if I receive the half load of wood, or the ten barrels of flour, I cannot afterwards object to receiving the residue because it was not all delivered to me at the same time. There are some kinds of contracts, which from the nature of the articles, (as a contract for the delivery of two thousand flour bar- rels.) or from other circumstances, it may be fairly presumed, that the parties did not contemplate a performance at one precise time, and the agreement should he construed accordingly. In general, however, a person is not bound to receive a part performance, but may refuse it altogether.'' If an agreement is partly performed, by a delivery of a part of the property, and both parties afterwards rescind the contract, that is, put an end to it by their acts or agreement, tlie value of the property delivered, if not before paid for, may be recovered back by suit. But the value of the property delivered can, in general, be recovered back, only where the buyer has done some act or en- tered into some new agreement by which it clearly appears, that the contract upon which there has been a part delivery was after- wards put an end to, or its further performance waved or excused."^ For, if a person pay money, or deliver property in part perform- ance of a contract, and afterwards neglect or refuse to perform the residue, he cannot, in general, recover back the money or property so paid or delivered, but must lose it. Thus: A agrees to give B sixty dollars for a harse, and pays twenty-five dollars in advance, and agrees to pay the residue of the money in ninety days, at which time the horse is to be delivered; now if A neglects to pay the re- sidue of the price, he can neitlier sue on the contract, nor recover back the twenty-five dollars.*^ A different rule from that above mentioned, seems to have been applied by authoritative courts to cases, where there is an entire con- tract tu deliver a large quantity of gnods^ consisting of distinct parcels, within a specified time, and the seller delivers a part of the goods, but fails to deliver the residue. In such cases, it is said, the buyer may give the seller notice to take back the goods, and sue on the contract; but that if the buyer retains the part delivered after the (a) 3 Wash. C. C. Rep. 140. (r) Wrirlit's Rep. 373; 4 Pick. 1 14. (b) 1 Carapb. 53. (d) 13 Johns. Rep. 359; 7 Cow. Rep. 231. §4, 5,] SALES. 429 seller has failed in performing, the latter may sue the buyer, and re- cover the value of the goods delivered.* Thus: Where by a con- tract of sale the seller agreed to deliver two hundred and fifty bushels of wheat, within a specified time, and delivered a part, but not the residue: Held, that he might, after the time mentioned in the contract had expired, recover from the purchaser the value of the wheat delivered to, and retained by him.* The more modern decisions would seem, in such case, to allow the defendant to re- duce the amount of the recovery of the plaintiff for the goods de- livered, by showing the incomplete perlbrmance of the contract, and the amount of damages sustained thereby. ""(l) It is a general rule, applicable as well to contracts of sale as to all others, that where two acts are to be done at the same time, (as the delivery of goods on one side, and the payment for them on the other.) no action can be brought by either party, until he performs or offers to perform his part of the agreement.'' And in such case, if one offers to perform and the other discharges him, the former may have his action, and recover, the same as if he actually performed his part.^ So, it is a general rule, that if you engage with A to do an act, on the previous performance of another act by A, or other person, no action can be sustained against you by A, unless he shows the previous act done; or that its performance was dispensed with; or that you, or the person for whom the act was to be done, prevented him from doing it, or that he offered to perform it.^ Sec. V. — OF the effect of a tender upon the rights of the buyer AND seller; and of the damages in such case, and avhere NO tender is made. The general rule in relation to the rights of a seller, under a contract of sale, where he has tendered property, and tiie buyer refuses to receive it, is this: The seller may leave tiie property at some secure place, at or near where the tender ought to be and is made, and recover the contract price; or he may keep it at the buyer's risk, using reasonable diligence to preserve it, and recover the contract price, and the expense of preserving and keeping it; or he may sell it, and recover from the buyer the difference be- tween the contract price, and the price at which it fairly sold. If he use the property as his own, and if he do not show, on the trial, the price at whicli it was sold by him, he c:ui only recover in an action against the buyer, the dilicrence, with interest, between the market price at the time and place of the tender, and the contract price, '^ (a) 17 En?. C. L. Rep. 401 ; 11 Id. 256, per (e) 1 T. R. 645; Dous. 684. Bkst, c. J. (a) 19 Johns, ncp. t;9. (c) Cliilly's ("on. 276,277, [3(1 Am. Ed.] (li ) Stat. TENotrt. VVrifjlU's Rep. 555: 8 Wend. (d) 2 Kent's Com. 465. Rep. 435; 2 Kent's Com. 504; 15 Eng.C. L. It. IJl. (1) A3 to the (laiTiages in such cases, see the next section of tiiis Title. 430 SALES. [Prt. 2, Title 32, If the seller have the property at the time and place required by the contract, and there be no one there to receive it, he ought to place it in some secure place, and not abandon it, so as to expose it to destruction.* In such case, he may sell it or keep it for the buyer, or use it himself, and he will have tiie same remedy as if the tender had been refused. The statute of this State provides,^ "that in any action or suit, brouu;ht on any writing obligatory, promise, or contract, for the payment of any article, or thing other than money, or for the per- formance of any work or labor, if the defendant shall plead that he did tender payment or performance of such writing obligatory, promise, or contract, at such time and place, and in such articles, work, or labor, as by such writing obligatory, promise or contract, he was bound to pay, or perform, and if the court or jury shall find that the defendant did tender, as alledged in his plea, they shall at the same time assess the value of the property or labor so ten- dered; ;uid thereupon judgment shall be rendered in favor of the plaintiir. for the sum so found, without interest or costs, unless the defendant shall forthwith perform his contract, or give to the plain- titfsuch assurance as the court may approve, that he will perform the same, within such time as the court shall direct, in which case, judgment shall be rendered for the defendant." The statute, it will be perceived, is applicable to cases where the defendant has, at the tim^and place required by the contract, made a tender of the kind, amount, and quality of property, mentioned in the agreement. It could not be considered a tender if the prop- erty was offered to the plaintiff after the same was payable, or at a dill'erent place from the one which the agreement expressly or con- structively demands, or if the property offered was not the proper kind, (juality, value, or amount. But when the tender is complete as to tiqie, place, quality, kind, and value or amount, then the jus- tice should ascertain the value or price of the property, at the time and place the property should have been delivered. If one wishes to make his tender complete, it will be safest for him, even if the other party does not demand, or come after, or intend to take the property, to weigh, count, measure, or otherwise separate the pro- perty tendered, from its mass. If the c6ntract is for the payment of so many dollars in proj^erty, then the defendant, in order to ren- der his tender complete, must show that the property tendered was of the value required; and the judgment mentioned in the statute will of course be for the value stated in the contract. For instance, I agree to pay you at your house next Monday, fifty dollars in corn, at the market price. If I tender to you the quantity at the time and place, and you refuse to receive it, and sue me on the contract, and I prove the tender, the justice will render judgment for fifty dollars, without interest or costs, unless I will forthwith deliver the property, or give such assurance as the justice approves, that I will do so, within such time as the jus- (a) 4 Wend Rep. 525. (1>) Stat. Tender. §5,6.] SALES. 431 tice shall direct; in which case judgment will be rendered in my favor for the costs. Contracts, however, are not always for the payment of so mnch money^ in property, as in the instance above mentioned. When the contract is for the delivery of property for which the purchaser is to pay a specific price; here, the price specified does not deter- mine its value; but the justice must ascertain the true market price or value, at the time and place it should have been delivered.^ For instance: I agree to deliver to you at your house next Monday, two hundred bushels of corn for which you have paid me fifty dollars. Now the corn may be worth sixty dollars next Monday, and it W'ould not be reasonable that I should cheat you out of the difier- ence, by failing to deliver it. You would be entitled to a judgment for sixty dollars, if that was the value of the corn, nt the time it was to be delivered, together with the interest and costs, if no ten- der w^as made. But suppose the corn worth only forty dollars on the next Monday, and I tender the corn to you; it would then be wrong for you to take advantage of the fall in the price, and cheat me out of ten dollars. If I proved the tender, the justice would render judgment against me for the forty dollars, without interest or costs, unless I delivered the property forthwith, »Stc., in compli- ance with the statute just mentioned. When the seller neglects or refuses to deliver the article which he has agreed to sell, and no money has been paid by the buyer, the measure of damages, is the difference between the contract price, and the value of the article when it should have been deliv- ered, with interest from that time.'' But if the money has been paid for the article, then the buyer will also be entitled to a judg- ment as well for the amount he paid, as the difference in the value of the article as above mentioned, together with interest. Sec. VI. — OF the remedy for defects in the quality and title OF PROPERTY. When the buyer of property is deceived in respect to its quality, and there has been an express or implied warranty which covers the defect, he may sue on the contract of warranty. If the seller has intentionally and actually deceived the buyer, as to the (juality of the goods, either by concealment or misrepresentation, it is a fraud for which the seller is liable, whether there was a warranty or not; and the buyer may, if he chooses, sue on the contract of warranty, or for such fraud, if there was both a warranty and fraud. If you sell me a horse which you know is foundered, and con- ceal this from me, and also warrant him sound, you are liable to an action on the warranty, or I may sue you for the deceit and (a) 6 Wliea. 109; but ace 3 Cowcn'a Rep. 82. (!>) 9 Wend. Rep. 129; 3 VVlica. 200; 5 Id. 385. 432 SALES. [Prt. 2, Title 32, IVaad. If I clioose to sue you on the warranty, and recover, I can- not afterwards sue and recover i'or the fraud. When there is both fraud and warranty, upon either of whicli damages may be recovered on account of the defect, an action for the fraud is to be preferred, as will be seen hereafter in treating of fraud, in the ([uaHty of things sold. When there has been a special contract as to tiie quality and price of the goods, if the goods delivered do not correspond with the con- tract, the vendee may repudiate the goods ,and return them; or he may give notice to the vendor to take them back, after he has given them a reasonable trial; and in such a case the vendor cannot re- cover on the contract; for he has failed to do that which was the consideration of the vendor's promise to pay, namely, to supply goods corresponding with the stipulation. If the goods supplied do not correspond with the contract, and the vendee retain them, he may, without having given notice of their defect, set up their inferiority as a defence to an action on the contract; and thereby reduce the vendor's claim to the actual value. And to entitle the plaintiff even to their value under such circum- stances, he must show some new iinplied contract, arising from the defendant's conduct in respect of the goods, as by usijjg them. "And,"' said Bayley 11 '•'•an abatement of the price is a convenient and intelligible rule, laid down in Street vs. Blay^ not to put the de- fendant to a cross action."* (^i) Of fraudident concealment or misrepresentation of the quality of things sold. When there is no express or implied warranty, such as will be hereafter stated, in relation to the quality of property purchased, and it is unsound, or otherwise defective in quality, the buyer can- not sue the seller on that account; unless the deception complained of was intentional on the part of the seller, and the buyer has been actually deceived, and has sustained danuige. First — The deception complained of must have been intentional on the part of the seller. The seller could not intend to deceive the buyer, if, when he sold the property, he was ignorant of the defect. The plaintiff must therefore satisfy the justice by positive or circumstantial proof, or from the nature of the defect itself, that the defendant, when he sold the property, knew of the defect; for if neitlicr the seller nor the buyer knew of the defect at the time of the sale, there is no deception nor fraud, and the seller is in no way responsible (unless there w^as an express or implied warranty,) even though the article be entirely spurious and worthless, and fraud- (a) 1 Mason 437; 8 Wend. 109; 22 En!?. C. L. Rep. 122; 17 Id. 373; 2 Id. 316; 32 Id. 125; 14 Id. 121: 2 Taunt. 2; 8 Cow. 3;, 13 Johns. Rep. 302; 15 Id. 2:10; 8 Id. 353; 3 Id. 236; 1 Pet. C. C. Rep. 221. 224; Stat. 685; 4 Wend. 483; 2 Kent's Com. (3d cd.) 474. (1) See page 317. §6, (A).] SALES. 433 ulently made for the express purpose of resembling and being sold for a valuable commodity. But in such case, the seller must be in- nocent, and ignorant of the fraud and defect at the time of the sale.^ It must also be proved either by positive or circumstantial evidence in order to make out the fraud, — Second — That the buyer has been actually deceived. If the defect complained of was mentioned to the buyer at or before the sale, he was not deceived. If the defect was an open and obvious one, such as a man of ordinary care must have seen, the law pre- sumes that it was seen by the buyer, and the seller is not responsi- ble. If, however, the defect was open and obvious, and the seller said or did any thing whatever with the intention to divert the eye, obscure the observation, or conceal the defect from the buyer, this would prove a knowledge of the defect, an intention to deceive, and it might, in such case, be also fairly presumed, that the buyer was deceived. What has been heretofore said in relation to puffing, and the false commendation of articles, is here applicable. (1) It must also be proved, — Third — That the buyer has sustained a damage or loss. Where the suit is brought upon the warranty, the damages are generally limited to an estimate of the actual injury to the party. But in a suit for a fraudulent concealment or misrepresentation, in respect to the quality of property, the judgment for damages ought not to be limited to a mere estimate of the defect of the property. Add to this an amount that will be a punishment to the defendant, and a lesson to others. Fraud is a crime, as injurious to the community as theft; and when fully made out, should be met with such dam- ages as will have a moral influence upon the neighborhood.'^(2) (a) 1 Wend. Rep. 185. ages sliould be given, it seems to nie that (b) Contra, Wright's Rep. 68t). If there be they are required in cases of fraud, any civil cases in whicli esenii)lary dam- (1) See pag-e 317. (2) The following case is extracted from 4 Hall's Law Journal, 618, and will show the application of the law upon frauds in the sale of horses: supEnion couuT. nortu caholina. Joseph Bluunt v. John Chester. '• This was an action on the case to recover damajycs for a deceit in the sale of a horse. The plaintitt" bought tlie horse in question from the defendant in October, 1807, for tlie sum of one liundred and twenty-eight dollars. Soon after, in riding him from Windsor to Newbern, tlie horse became i)crfcctly blind. It appeared in the evidence, that the defendant had pin-chascd tiie horse aI)out twelve months be- fore he sold him. His eyts were at lliat time defective. 'I'hc dclcndant ajjplied a remedy w hicli produced u (emjiorary relief. lUit wIr never the horse u as rode a journey the disorder returned. The defendant in bringing him from Tennessee, had discovered he was getting bUnd, and was obliged to drive scry moderately to 434 SALES. [Prt.%TUh?>% In such action, no damages can be recovered for the keep of a horse previous to an orter by the i>hiintili" to return him.* If a horse be sold to be taken by the buyer ;!.s he is, sound or un- sound, and nothing more appears, the seller is not liable for any un- soundness, though lie had knowledge of it at the time of the sale, and did not communicate such knowledge to the buyer. But if it (a) 9 Count. 107. prevent the loss of his eye siglit. The plaintiff purchased witliout being' appris- ed of this defect. The defendant h:id refused to warrant, saying- he had determin- ed never to do so, as he liad already been injured by warranting his iiorses. He observed while exposing' his horse to sale, that the eyes of some looked dull, but this was occasioned by their having traveled over dusty roads. lie afterwards ac- knowledged, tliat he knew the horse was subject to blindness, but thought he was not answerable as he liad not warranted. The horse after he became blind was sold for sixty dollars. This was the evidence on tlie part of the plaintift". "The defendant endeavored, but unsuccessfully, to ]irove tliat the horse, after he came to plaintilf's possession, had received some injury, by which the blindness might lia\e been occasioned. " After argument by counsel, his honor Judg-e Hall observed, that this was an action to recover damages for deceit in the sale of a horse. The g-rounds of this action were, that the property sold was defective; tiiat this defect was known to tlie seller, and unknown to tlie purchaser. If tlie jury believed, that the plaintiff' did know of the defect at the time he bought the horse, lie could not complain. He liad sustained no injiu'y from the defendant. It was his own fidly. ]5ut it was for the jur)' to decide whether lie did or did not know it. It was not because he mig-ht possibly have known it, (hat the defendant was to be discharg-ed. If, inileed, the defect was so open and visible that lie could not well avoid discovering it, then the jury must, of course, presume against him. In tlie present case, skill might have been required. The plaintiff might not have been possessed of this skill. If in fact, he was ignorant of the circumstance, thoug'h a person better acquainted with horses mig'lit have discovered it, the deceit and criminality in the defendant were still the same. He was imposing- on the plainlifl'as sound, what he knew to be unsovind. He was not acting with that fairness and plain dealing which became an honest man. Ag'ain, it had been said, the plaintifl' [daced no confidence in the defendant — he saw the horse examined, and liked him; wh}- was the defendant bound to disclose the defects of the property, which it was his interest to sell to the best advantage? He was bound by the rules of g-ood faith and honesty. He was bound as a man of truth, of candor, and of fair dealing'. It is a principle in morals as well as a maxim in the municipal law, that -.i siij)j)rc.ssion of truth, is often egual to a xu^geistioii of falsehood; a deception may be as eileclually occasioned by the one as the other. Men must place some confidence in one another, or there must be an end to civil intercourse. The confidence reposed by the plaintilfin the defendant in the present case, necessarily arose from the nature of the transaction. It was not an unreasonable one. The courts of that country, from which wc de- rive our laws, have lately gone a g'reat way in enforcing- moral obligation, and I trust we shall g-o at least as far. In a recent case decided in England, A. iiad sold a vessel to B, who agreed to take hev just as she stood. It appeared afterwards that some of her timbers were unsound; that this w.as known to A, but could not have been known to B, when lie purchased. Tiie court determined that A ought in justice and hones'y, to have disclosed this defect, and as he had not done so, should be liable to li in damages. Manj' persons in this country have considered themselves loosed from the obligations of morality, when they were trading- in horses. It is time to correct this false notion. If the jury believe the evidence in the present case, and that the plaintiff knew not the unsoundness of the horse, at the time he purchased, they will give ample and exemplary damages. "The jury retired, and in a short time returned with a verdict for 60/. 10s., for which judgment was entered." §6, (A), (B). ] SALES. 435 further appear, in such case, that any misrepresentation were used by the seller, he is Hable for such misrepresentation. Therefore, where a horse was thus sold, and it appeared that he was then thin in flesh from disease, and had a bunch on his neck, also the effect of disease; and the seller sold him as he was, sound or unsound, but at the same time falsely represented to the buyer that the horse's want of flesh was caused by a long journey, and the bunch on his neck by his having been bled; it was held that the seller was liable to an action for these false and fraudulent affirmations.'^ So, if by false and fraudulent misrepresentations a party is induced to enter into a written agreement, and is thereby damnihed, he may sue in an action on the case for the deceit, and give verbal evidence of the representations, although they are not noticed in the written contract.^ Thus: the owner ol a public house, made, pending the treaty for its sale, deceitful representations respecting the amount of business done in the house, and of the rent received for a part of the premises, whereby the plaintiff' was induced to give a large sum for the premises; it was holden that the latter could recover dam- ages for the deceitful representations, although they were not noticed in the conveyance of the premises, or in a written memorandum of the bargain, which was drawn up after these representations were made,^ If a party be induced to purchase an article by fraudulent misrepresentations of the seller respecting it, he may, when he dis- covers the fraud, immediately rescind the contract, by returning the article, and then recover back, by action, the money paid. But if, after discovering the fraud, the buyer continue to use or deal with the article as his own, he must sue for the fraud, and cannot ten- der the article, nor rescind the contract.^ If there has been an ex- change of articles, and boot given by the party defrauded, he may, after tender, sue in an action of assumpsit for the money, and also maintain an action of trover for the article he delivered.^' But if he wisiies to rescind the contract, he ought not to retain any part of the consideration he received upon the sale or exchange; and if in the exchange he received money as boot^ he ought to return not only the defective article, but also the money he received; for he shall not compel even the fraudulent seller to an action, to recover back the property he has parted with in the exchange.' (B) Of the different kinds of Warranti). Warranties are of two kinds; express and iinpHed. I'iX press war- ranties are those stipulations and promises, with regard to the con- dition or general or particular quality of the articles sold, which the seller makes to the buyer in express terms, at the time of the sale. (c) 9Coniit. 107. (k) 28 En^'. (.'. I.. Rop. 29; 21 U. 4M. (dj 2L(i. Raym. lllf?. (h) 4 Mass. Hep. hOZ; hut see 3 Caiiipl). 299. (c) 10 Kn-;. C. J.. Rep. 202; but hcc 4 Tuunt. Cowp. iil»; Douyi,. 24, (n.) 779. (i) 4 Mass. Kcp. 502. 436 SALES. [Prt. 2, Title 32, Implied warranties arc such as the law says, from the nature of the transaction, were made at the time of the sale, tiuni^ii neither party said any thinii; about a warranty. If 1 have a horse in my posses- sion, and sell him to you, the law says, Irotn the nature of the trans- action, that 1 warranted the horse to belong to myself, or that 1 had a right to sell him. But the law will not imj^ly that 1 warranted the horse to be sound, and therefore a warranty of soundness must be made in express terms. (C) Of implied Warranlies. In every sale of goods, or other personal property, if the posses- sion be at the time in another, and there is no express warranty of title, the ])urchaser buys at his peril, and cannot sue the seller on failure of the title; unless the seller knew he had no title, in which case, he would be liable for the fraud.'' Even if a sheriff' or con- stable sell property which he knows at the time does not belong to the judgment debtor, and says nothing about it at the sale, the oHi- cer is responsible to the purchaser, wlio may sue him, and recover back the purchase money, though it has been paid over to the judg- ment creditor.' if the seller has possession of the article, and he sells it as his own property, he is understood to warrant the title, though he says nothing about it: and in such case, if the seller had no title, the purchaser may recover back the price he paid. If you enter into a contract to make and deliver to me a certain article, for example, a plough, and the quality is not specified, the law infers that it must be such as is ordinarily considered fit for use and sale."" The manufacturer of an article impliedly warrants that the article shall be lit for the use intended, and of a merchantable quality." If you show me a sample of goods, and on the faith of the sam- ple I purchase the goods, here there is an implied warranty that the sample upon which the bargain was made, is a fair specimen of the goods; and if it was so in fact, and there was no deception on the part of the seller, the purchaser is bound by the contract, though the goods should turn out not to be good or merchantable, from some secret defect in the sample as well as in the bulk, imknown to both parties at the time of the sale." If you write to, or request a person to send you an article, and he selects it, there is an implied warranty that the article shall be of at least an ordinary merchantable quality. The buyer is not, in such case, bound to take it if not merchantable, but may immedi- ately return it,P or he may sue the seller for not performing his con- tract, if he agreed to provide the article.^ But if the property be present, though not examined, as, for example, paint in unopened (k) 2 Kent's Com. 478. (o) S Johns. Rep 404; 2 East, 314; 2Pick. 219. (I) 1 Eng. C. L. Rep. 224. (p) 4 Cimpb. 22. 144; 2 Kent's Com. 479 ; 2 (in) Id. ib.; 4 Campb. 169. Pick. 220. (n) Id. ib.; Id. ib.; 9 Wend. 24; 15 Eng. C. (q) 1 Eng. C. L. Rep. 327. L. Rep. 529. §6, (C).] SALES. 437 kegs, and a full price is paid, and it turns out to be of an inferior quality, and of little or no value, still there is no implied warranty; and if the seller was ignorant of the quality of the article he is not guilty of a fraud, but is entitled to recover the full price/ But the article delivered must correspond with the commodity sold in sjyecie; for there is in general an implied warranty to that extent, unless the facts or circumstances show that the purchaser took upon himself the risk of determining the kind of species pur- chased. Therefore, if you call on a merchant and ask for, and pur- chase what you suppose to be, a keg of white-lead paint, which is unopened; and it turn out to be ground chalk instead of white-lead, the merchant is liable in damages, although he was ignorant of the deception; for the article is not of the kind or species which you called for, or which was contemplated by the sale.* But if, under such circumstances, the paint were partially adulterated, so as not to destroy its distinctive character, nor to render it unmerchantable as white-lead paint, the seller would not be liable on any implied warranty.*- Where provisions, such as meat, &c., are sold at a market, or other place, /or domestic use^ the very offer to sell is an implied war- ranty that they are sound and wholesome, when nothing to the con- trary is expressly stated. In such case, the seller must, in general, be presumed to know whether such provisions are wholesome or not, and in case they are not so, he will be responsible to the buyer.'' Where, however, the provisions are not sold nor purchased for domestic use, but are the subject of trade or commerce, as where one merchant sells to another pork or beef in barrels, the same rule applies as to other property; and the buyer must either show an express warranty, or that there has been an intentional deception, successfully practiced upon him by the seller,^'' before he can re- cover damages on account of the unwholesome or unsound quality of the provisions. There is no implied warranty of the quality of property upon an exchange; and to support an action, direct fraud or express warranty must be proved.* In an action by the buyer of pi'operty against the seller, on the implied warranty of title, the record in the previous action in which the buyer was evicted or lost the property, and of the pendency of which action the seller had notice, is evidence against him.'' But if the seller had no notice of the action, the record cannot be re- ceived in evidence against him as proof that he was not the owner of the propert,y.(l) It seems that if you sell an article as your own to A, he knowing at the ti?ne that B claims it as his property, A can- not, by paying B for it, thereby defeat your action for the ])rice, even though B is the rightful owner. But if, after the sale, B assert (r) 4 Johns. Rep. 421: contra, 9 Wend. (v) 12 Johns. Rep. 468; Rep. 20. (w) HI M.nss. Rep. 197; Imt sec 9 Wend. Rep. 20 ■ (s) 3 Rawlc's Rep. 23, and tlic cases there (a) .3 Caniph. 351. cited; 9 Wend. 20- (l>) 1 Johns. Rep. 517; 13 Id. 224. (t) 3 Rawlc, 168. (I) As to the seller being' a witness in such action, sec pag-e 59. 438 SALES. [Prt. 2, Title 32, his riMit to the article hy suing A and recovering, this will be a good defence to your action against A lor the price." (D) Of an express Warranhj. Where there is no implied warranty, and the seller practices no deception, as has been bei'ore stated, then the buyer takes the pro- perty subject to all defects, and must pay the price he agreed to, unless there is an express warranty of its (jiiality. A warranty, in order to be binding, must be entered into at the time the sale is made, or before; and if before, it must appear to have been a part of the terms of the sale itself If you to-day pro- pose to sell me your horse, and to warrant him sound, and to-mor- row I inform you that I will take the horse, and you deliver him to me; here, if there was nothing said at the time the sale was com- pleted to change the terms of the contract, your proposition to war- rant, though made before the sale, will form a part of it. A pro- / mise, after the sale, to warrant the property is not binding, as it is ) then made without any consideration. So, if representations are ' made previous to a sale, amounting to a w-arranty, and the sale is afterwards made by a written transfer without a clause of warranty inserted, the law presumes that the writing contains the whole con- tract, and the warranty will be inoperative.*^ No particular form of words is necessary to make a warranty, though the word warrant is generally used. Any assertion of the seller in respect to the quality, soundness, &,c., of the property, if intended by the seller, and understood by the buyer, as a warranty, must be considered as such, whether the word warrant was made use of or not.'' False assertions, if intended to operate on the opinion of the buyer in regard to the value of the property, and for the purpose of driving a bargain, do not amount to a warranty ,s though the seller may be liable for the fraud, as heretofore stated. (2) Do the words, which the buyer claims as proving a warranty, fairly show that they were intended and understood by the parties, at the time of the sale, as a promise to w^arrant? If they do, then they must be so considered by the justice, A warranty of the soundness of a horse, or other property, ex- tends to every kind of unsoundness, known and unknown to the seller. If, however, the buyer examines the property at the time of the sale, and it is perfectly apparent that it has some particular de- fect, which can be discerned without requiring the exercise of any particular skill in the qualities of the property, as the loss of the ear or tail of a horse, it will be presumed that the parties did not under- stand such defect as coming within the warranty. If, however, the horse, or other property, has a defect which is not plain and obvious, except to those who are skilled in the quality of the particular arti- (c) 19 Johns. Rep. 77; 9 Wend. 331, per (e) 19 Johns. Rep. 290; 3 T. R. 57; 3 Bibb, 35' Savage, C. J. (c) 5 Johns. Rep. 354; Esp. Rep. 572. (d; 1 Wend. 424. (2) See page 317. §6, (D).] SALES. 439 cle, it cannot then be claimed by the defendant that the defect was too phiin and obvious to come within the warranty. A warranty of the soundness of a horse is broken, if the animal, at the time of the sale, had any infirmity upon him which rendered him less fit for present service. '*^ If a person purchase a horse, or other property, that is warranted, and it afterwards turn out that the property is not such as it was warranted to be, the buyer may, if he please, keep the property, and immediately bring an action on the warranty, without tender- ing back the property, or giving any notice to the seller of the breach of the warranty. The buyer will then have a right to re- cover the difference between the value of the property, such as it was warranted to be, and the property such as it actually was at the time of the sale. If the property has not been changed, or injured by the buyer, so that it remains in the same slate as when it was sold to him, ex- cept so far as it has been aflected by the defect covered by the war- ranty, and the seller knew at the time of the sale that his'warranty was false, the buyer may return, or tender the property to the sel- ler, provided he do it promptly, or as soon as he discovers the de- fect, and then bring an action and recover the price he paid.** If, in such a case, the property is promptly tendered in the same state as when it was sold, and the seller refuse to take it, and the buyer is afterwards put to expense in keeping it, he will then be entitled to recover, as well what he paid, as the expense of keeping."^ If keeping the property is attended v>'ith expense, or it is of a perish- able nature, the buyer may, if he choose, after tender and refusal by the seller to take it, sell it at such price as he can fairly get, and then sue and recover from the seller the difference between tlie price at which it was sold, and the price paid.** In such case, it will be safest for the buyer to give the seller reasonable notice that he in- tends to sell the property. If it cannot be proved that the seller ^ knew of the defect at the time of the warranty, and there was no ' agreement or subsequent consent on his part to take back the pro- perty, he will not be bound, on tender, to take it back, but the buyer must keep the property and sue on the warranty." When the title to a part of the property sold has entirely failed, so as to defeat the object of the purchase, the buyer has a right to abandon the contract, by returning such of the property as the seller owned, and may recover the money paid. As, if I should sell you a pair of matched horses, for carriage use, and the title to one of them should fail.^ you may return the other. But if I should sell you two iiorses that are not matched, and the tide to one should fail, the object of the purchase would not be defeated, and you could not abandon the contract, but could sue me on my iinj)lied warranty, and recover what you paid me for the latter horse. (a) 4Canipb. Rop. 2ai. (c) 12 Wliea. 103; 7 East, 27J; Dou?. 24; (b) 3 Esp. Kep. 83; 12 VVlica. 183; 28 Eng. C. Cowp. R18. L. Hep 29. {^) 11 Joluis. Rnp. 525; 2 Kcni'n Com. 4T0. (c) 3 E»p. ftl; 1 Ta>int. 5C7. 476. (d) 1 Taunt. 567; 15 Eng. C. L. Rep. 129. 440 SALES. [Prt. 2, Titk 32.] If I sell a horso or other property to you, and warrant it, and you sell it to 8, and are induced, by my warranty, to warrant it also, and it turn out that the jjropcrty was defective, and the warranty broken between you and nic, and conseciuently between you and S, I am liabk^ for ail the expense which yuu may incur in defending an action brought by S against you for a breach of the warranty; provided that you, when sued ])y S, adi>{)tcd the precaution to give me notice to defend the action. Tiiese expenses you may recover in the action brought by you against me lor a breach of my war- ranty, after the decision of the action of S against you."" When by the conditions of a sale, a liorse or other property is to be returned within a certain time, if it prove unsound, or in ;my way defective, it cannot be returned after the expiration of that time.'' In such case, t!ie buyer has no remedy ngainst tiie seller, unless there was intentional deception practiced by him, amount- ing to a fraud. When there is an express warranty, and an agreement by the seller to take back the property, if, on trial, it shall be found that it has any of the defects mentioned in the warranty, the buyer must, in such case, return the property, as soon as he discovers any of those defects, in order to sue on the warranty, unless he has been induced to prolong the trial by some subsecpient misrepresentation of the seller." In'such case, trial means a reasonable trial.*^ In a suit on a warranty, or for a fraud as to (juality, the burden of proving, on the trial, the defect in the quality of the property, falls upon the buyer. "^ If suit is brought by the seller against the buyer, to recover the purchase money, the defendant may set up th.e fraud or false war- ranty, so as to prevent a recovery beyond what is equitable and just."* (a^ 2 Eng. C. L Rep. 54. (e) Stat. 685; 8 Cow. Rep. 31; 13 Johns. Rep. (I)) 3 Eep. 271. 302 ; 16 Id. 230; 8 Wcnd. Kcp. 109; 4 Id. 483 ; (c) 2 n. 1!1. 573. 3 Id. 236; 8 Johns. Rep. 353; 1 Pot. C. C. Rep. (li) 2 Taunt. 343. 221. 224. See 14 Enu. C. L. Rep. 121 ; 22 Id. 122; ^ 17 Id. 373; 2 Kent's Coin. (3d cd.) 474; 1 Mason 437. TITLE XXXIII. SET OFF.(l) SECTION I. IN WHAT ACTIONS A SET OFF MAY BE ALLOWED. 11. WHAT DEMANDS MAY BE SET OFF. Sec. I. IN WHAT ACTIONS A SET OFF MAY BE ALLOWED. It is only where the defendant is sued on a specialty,(2) contract, bill of exchange, promissory note, promise or account, that he is permitted to oiler in evidence a demand which he may have against the plaintifi".(3) Therefore, if a suit is brought to recover damages for a wrong, and not for the breach of an express or implied pro- mise, and the defendant has a demand against the plaintiff, he can- not set it off in such action. Sec. II. WHAT DEMANDS MAY BE SET OFF. Any debt, contract, book account, or other liquidated demands, against the plaintiff, and due the defendant, may be set off.*(4) (a) Stat. 850, 5L (1) As to filing a hill of the particulars of a set off, &.c. see pages 38, 39. (2) Specialty is a contract or an Instrument under seal. (3) Slat. 850, §1. Tlie Englisli statute, by its terms, allows a set off in actions only, in which the plaintiff sues for a dehl; and for tliis reason it has been decided in England, tliat tlie only actions in which a set off is allowed, are assumpsit, debt, and covenant for tlie non-puymeid of rnonei/, and for which an action of debt or indebitatus assumpsit might be sustained; or where a bond is given conditioned for the payment of money. 2 Burr. 820; Cuwp. 56, 57; 2 Black. Hep. 911. The statute of this Slate includes all actions brouglit •' on any specialty or contract," &c. '!'he English statute cannot give a construction to ours, and 1 perceive no good reason wliy ours siiould not include the actions which its broad terms ex- pressly and clearly define. (4) <'.\ny debt, contract, book account, ov other liquidated demand:" These are the words of the statute; and I am not informed that the supreme court has given a construction to them. A debt or book account is a liquidated dt-mand; but a claim arising on a contract may be as uncertain in amount, and as litr from being a liquidated dernuvd, as the damages you would be entitled to for a battery .')r. 442 SET OFF. [Prt. 2, Ttlk 33, 1. As, on tlie one liaial, u person cannot recover, but must be nonsuited, if he conunences a suit before tiie debt for wliicli the action is brouuht is tkie; so on the other, a defendant cannot set oli" a claim which has become due alter the commencement of the suit against him.(l) If the delendant, after the suit is commenced against liim, pro- cure an assignment or debt against the plaintitf, he cannot be allow- ed to bring it in by way of set olf;* and it is for the delendant to satisfy the justice, either by proof or circumstances, that the set oti* was held by him belore the commencement of the suit.'' When the suit is by an administrator or executor upon the claim of the decedent, it is competent to set oil' any debt, book account, or other liquidated demand, due from the decedent to the defend- ant at the time of the decease of the decedent. Jiut in such suit, the defendant ca.nnol set olfa debt assigned to him after the decease of the decedent; nor a debt which became due and pajable after tlie decease of the decedent.*^ Such demands, though good against the estate, can only look to the general assets for satisfaction. To allow them to be set olI'M'ould change the course of distribution of the funds belonging to the estate. 2. In general the set oil" must be due from the plaintifl"; and the debt due the plaintilf for which the action is brought, and the debt (a) Stat, 850, $1. (b) 19 Johns. Rep. 322. (c) 6 Oljio Rep. 35. upon your person. It is the opinion of some of ilie members of the bar, however, that ail uncertain damag'es arising- xipon any contract may be set oB\ but perhaps from the words "other liquidated demand," the leg-islature intended to allow only tlie set off of debts, accounts, contracts, and demands that are liquidated. What is a liquidated demand may be more difficult to define, than to ascertain the proper construction of the statute. In general, when the defendant claims on a contract, damages which are uncertain in amount, and not defined or fixed by the terms of the contract itself, but require evidence independent of the terms of the contract to ascertain^their amount, they are not liquidated. Thus: if I hire your horse, and neglect to take reasonable care of him, so that he is injured, or borrow your plough, and by negligence break it, you would be entitled to recover the damages which )()u had sustained by the injury to the hoi-se or plough. Though in all these cases there is a breach of an implied contract, yet the damages being uncertain, or unliquidated, perhaps you could not set them oft' in a suit brought against you by me. AVhere, therefore, the amount rests in opinion only, and must be reguiiited by the peculiar circumstances of each particular case; they are dam- ages which cannot be ascertained by computation or calculation — as, for instance, for not skillfully amputating a limb; for carelessly upsetting a stage, by which a bone is broken. 1 Cowp. 56; 1 JF. Black. 391; 13 Wend. 139; "6 T. R. 488; 4 Johns. Chy. Hep. 287; 6 Cow. 613. But if I agreed to pay you by reason of any one of these injuries, or on any other accoimt, a certain sum of money, the de- mand would then be liquidated, and could consequently be set off. So, a set off may, in general, be allowed where the contract is such, that if there has been a breach of it as complained, the amount of the demand can, by the tern>s of the con- tract itself, independent of other evidence, and by arithmetical calculation, be re- duced to a certainty, for it is then a liquidated demand. Therefore the amount due on a note, or on a merchant's account, or for work or the like, can be set off. (1) 3 T. R. 1H6; 3 Johns. Cos. 145. Some decisions have gone so far as to allow the set off of a debt, due and payable at any time before notice given in the suit of the set off. C T. R. 59; 3 Id. 'l88, note; Dou^. 106. §2.] SET OFF. 443 due the defendant for which set off is claimed, must be between the same persons and in the same character. The law in relation to set off, where the plaintiff has assigned the claim upon which he sues, has already been stated ;(1) and^also the rules of set off, as between the several parties to negotiable instru- ments.(2) A debt due to an executor or administrator, in right of the dece- dent's estate, cannot be set off against a debt which the executor or administrator owes in his own private right;'' nor can a debt due to an executor or administrator, in his own private right, be set off against a claim on the decedent's estate. Where the plaintiff is the mere agent or trustee of a third person, without any beneficial interest in the cause of action, the defendant may set off a debt due him from such third person; as if an auc- tioneer sue me, in his own name, for goods sold to me, I may set off a debt due to me from his principal who owned the goods.'' Where a general agent for the sale of goods, sells and delivers goods in his own name, not disclosing the name of his principal, the person contracting with him has a right to consider him, to all in- tents and purposes, as the principal; and though the real principal may appear, and bring an action upon the contract, against the pur- chaser of the goods, yet the purchaser may set off any claim he may have against the agent, in answer to the demand of the principal."^ But if the purchaser knew that he was dealing with an agent, he cannot avail himself of a set off against the agent, in an action by the principal.*^ A separate del)t duo to one of the defendants, cannot be set off against a joint debt due from all the defendants; nor can a debt due to the defendant, and another or others, Jointly^ be set off against a debt due from the defendant alone;® unless there was an agreement between the parties, in relation to their dealings, that such debts might be set off against each other.^ A debt due to or from part- ners is a joint debt. Where the plaintiff owes a debt to several persons jointly, one of whom owes him, the latter may acquire the right of set off' against the ])laintiff, by taking an assignment to him- self alone, of the debt due from the plaintiff, before the plaintiff's suit is commenced. ** If business be carried on in the name of only one person, who is the ostensible proprietor, and an action be brought in the name of such proprietor and a dormant {)artner, the defendant may set off a debt due from the ostensible proprietor, if he was ignorant of the partnership at the time he contracted such debt.' If the defendant is sued for his own debt, and he is a surviving partner, or surviving joint creditor, and as such has a claim against (a) 3 Atk. 691. (e) 3 Johns. Cliy. Rftp.573; 5 Crnnch, 34; 10 (b) 7 Taunt. 243; 13 Johns. Rep. 9; 2 Cainc's Johns. Rep. 251); 11 Id. 70- C. 341. (S) 2 Taunt. 170. (c) 7 T. R. 356, n. a. 355. (h) 17 Johns. Rep. 330. (<1) 2 Caine's Ca. Err. 341; 3 Crancb, 193. (ij 2 Esp. 267; 7 T. R. 359. (1) See pages 212, 215. (2) Sec pages 410 to 414. 444 SET OFF. [Prt. 9, Tit. 33, §2.] the plaintifl', he may set it off; and, on iho other hand, a doht due tlie plaintitr, as a sur\ iving debtor, may be set olT against a debt due h'om the delendant lu ihc plaiiiliil" in his own right. Althotigh a joint debt cannot, in general, be set oil" against a sep- arate demand, nor a separate demand against a joint debt, as we have ah'eady seen, yet there is, as lias before been stated,(l) a ma- terial dillbrcnce between a joint debt and a joint and several debt. If the plaintilfsue for a debt due him alone; and he, with others, owes the defendant a debt by joint and several bond, note or other instrument, the latter may treat the debt as several, and set it oflin tlie action.* 3. The set off must be such a one as if sued upon, it would not be barred by the statute of limitations. (2) 4. If the set off does not exceed the claim of the plaintiff, judg- ment must be rendered in his favor for the balance and costs. If the set off exceed the amount due the plaintiff, the defendant will be entitled to a judgment for the balance, with costs.^(3) (a)2T. R. 32. (b) Stat. 850, $1. (1) See page 15, n. (2). (2) As to the general operation and effect of this statute, see page 358. (3) See the form of the judgment, pages 106. 121. TITLE XXXIV, STUAYS. Any person holding land in this State by deed, title bond, or lease for three years or more, and being in possession thereof, may take up any strays running at large within the township where such taker up resides. No person, however, is allowed to take up any neat cattle, sheep, or hogs, after the first day of April and before the first day of November; nor can any compensation or fees be allow- ed to a person for taking up any stray animal from the range where such animal usually runs at large, or when the owner of the stray is known to the taker up, unless the animal be a stoned horse of one and a half years old or upwards, running at large out of the in- closed ground of the owner or keeper of such horse.* The taker up of a stray mijst, within three days after taking it up, make an accurate description of the marks, brands, size, color, and supposed age of the stray, and particularly describe any altera- tion in the marks or brands witliin his knowledge. The taker up must leave a copy of this description, within said three days, with the clerk of the township, who must record it and post up a copy thereof on the door of his office, or some other conspicuous place near thereto. The taker up must also, (if the stray be other kind than hogs or sheep,) transmit a copy of the description of the stray, above mentioned, to the clerk of the court of common pleas of the county within five days from the time of taking it up, who must enter it on his stray book. Twenty-five cents nmst be paid to each of said clerks by the taker up.^ Their record is subject to public inspection at all reasonable times.^ The person taking up an estray, must advertise the same in wri- ting, within five days, at thi-ee public places within the township where the taker up resides; giving an accurate description of the marks, brands, color, size, and supposed age of such stray :(1) and (a) Stat. 870, 51. (b) Id. lb. (1) Form of the Advertisement of a stray animal: ST11A.Y. Taken up on the day of , 18 — , as a stray, in township, — county, by the subscriber, who there resides, a [Ijui/] Iiorse, supposed to be years old, liunds hifjli, [a natural pacer. IJtrc alaic the hrancls or nuirka, if any; or if there bn none, say, "no marks or brands perceivable."] [iVgncrf] A 11 . \_Dated\ , 18—. 446 STRAYS, [Prt. 2, if no person Bhall claim and prove his riirht to the stray within twen- ty days after such advertisement, the taker up nuistgo before a jus- tice of the peace within the township, and make oath where and when he foimd tlie stray, and that lie hath neither trimmed, docked, nor altered the brand or marks of the stray, or suffered the same to be done; or, if any such alteration has been made within his know- ledge, he must state the same.*(l) If the taker up neglects either to advcrtigc or make the oath be- fore a justice within the time aljove directed, he^cannot afterwards proceed to have the property appraised and sold, or otherwise dis- posed of, under the statute. For, as the law in relation to strays was made partly for the benefit of the owner of lost property, and to enable him to find it, the policy of allowing the taker up who neglects giving the re({uired notice, to recover a compensation for keeping the stray, may be doubted. It would hold out a strong inducement i'oj: persons to try the experiment, whether' the owner would be able to find his property, if it was not advertised. It is believed, therefore, that the better rule to adopt in such cases, is, not to sustain a claim for compensation by the taker up, where he has failed to give notice or make the oath within the time prescribed by law. Upon oath being made by the taker up, as above mentioned,'the justice must issue an order to two respectable freeholders, or house- holders, named therein, commanding them to forthwith view and appraise such stray,(2) and to return to him upon oath or affirma- tion, their appraisement, with a true and accurate description of the (a) Stat. {,70, $1. (1) Form of the oath of the taker up of a stray: The State of Ohio, — ^ — Township, ■ County, ss. A B , of said township, makes oath and saith: That on the day of , A. D. 18 — , and upon [his premises, stating the place where the stray tvas taken up,] in said township, he tliere found and took up a stray [iay] liorse: and that he hath neither trimmed, docked, nor altered the brands or marks of said atray, nor suffered the same to be done. [Signed] A B . Sworn to and subscribed before me, this day of A. D. 18 — . G II , J. p. of township. (2) Form of the order to the appraisers of a stray : The State of Ohio, Township, County, ss. To E— — — F , and J S , freeholders [or householders] of said township — You are hereby commanded forthwith to view and appraise a certain stray horse taken up by, and in possession of A R— — , of said township, and return to me upon oath, or affirmation, the value thereof, and a true and accurate descrip- tion of the marks, brands, size, color, and supposed age of said stray. Given under my hand this day of , in the year ——. G H , J. p. of said township. Title 34.] STRAYS. 44 1 marks, brands, size, color, and su])posed age of the stray. (1) The taker up must give notice to the appraisers of the order being is- sued,* which should be done by showing and reading to them the order itself. The justice must record the return of the appraisers in his stray book together with the name of the taker up and appraisers, and transmit the appraisement to the clerk of the court of common pleas within fifteen days. Under the present law, it is not necessary for the justice to transmit an advertisement of the stray to a printer. No publication of that kind is now required. The taker up must pay to the justice for his services under the act, the sum of fifty cents. And if two or more strays of the same species are taken up by one person at the same time, they must be included in the same entry; and in such case the justice and clerk can receive no more fees than is allowed for one of such species.** Where strays are found running at large without any settle- ment,(2) any person may take them up. The taker up must forth- with go before the nearest justice of the peace, and make the oath above directed in other cases, and that he hath neither trimmed, docked, nor altered the brands or marks thereof. If the taker up be a freeholder, or householder within the county where the justice re- sides, then the justice and taker up must proceed in the same manner as has been before directed in other cases; but if it appear to the satisfaction of the justice that the taker up is not a resident of the county and a freeholder, or a householder, he must require him to give sufficient security to the justice for the safe keeping and deli- very of such stray.(3) On producing such security, the justice must (n) Stat. 871,53. (b) Id. ib. 54. (1) Form of the return of the appraisers, to be annexed to the order: In pursuance of the order of G H , a justice of the peace of town- ship, county, we, the undersigned have viewed a stray horse taken up by A — B , therein mentioned, and we do ap]5raise the same at dollars. Tlie fol- lowing" is a true and accurate description of said stray: — Bay color, marked on \^&c.y or say, no marks;] branded on [SJc, or, no brands,] hands high, and believed to be years old last ; &c. [Signed,] E F , Sworn to and subscribed before me this day of , &c. G H , J. p. of said townsliip. Form of oath to the Appraisers. You and each of you, do solemnly swear in the presence of Almighty God, the searcher of all hearts, tliat tliis return contains a just appraisement, and a true and accurate description of the stray therein referred to, as you verily believe. (2) These are the words of the statute. The statute no doubt was intended to apply to strays, that have wandered into a part of the country that is uninhabited. (:j) A bond in such case may be taken upon the stray book, in the following' form : Know all men by these presents, that wc, .T T , F, F , and J — S , are held and firmly bound unto G — H , a juctice of the peace, in and for township, county, in the sum of dollars, for the payment 44 B vrRAVs. [Prt. 2, make a record thereof in his stray book, and j)ro.-.eed in the same manner as if the stray had been taken up l)y a freeholder or house- holder; but if the taker up fail or rcl'uso to give such security, the justice mast issue his warrant, to any constable -^f the county, to take into his charge, or to deliver the stray to any freeholder or householder, who will take charge of the same. (2) The constable will be authorized to tak^ the stray, under tin;;, warrant, from the possession of the taker up. If he refuses, on de- mand, to deliver up the stray, the constable may use force to obtain possession. If the stray, however, has been placed by the taker up in the hands of a householder or freclioldcr of the township, the constable should take from such freeholder or householder, a receipt; and if he will not give one, then the constable should take tiie stray from him.(3) The justice afterwards proceeds in the same manner as if the stray had been taken up within a settlement.* (n) Stat. 072, iS. of which, we jointl_v and severally bind ourselves. Seu'ed with our seals, this day of in tlie year . The condition of this oblig'ation is such, that whereas, the said J T , on the day of , A. D. 18 — , took up a stray horse, running- at large without any settlement, and in the county of ■; the said J T hath made oath as required by law before said justice, in relation to said stray, and is not a freeholder nor householder in said county. Now, ifsaid J T^ shall safely keep and deliver up said stray, agreeably to the provisions of the act in such case made and provided, theii the above obligation to be void; otherwise to i-emain in full force in law. J T , [Seal.] E F , ISetil.] J S , [Seal.] (2) Form of the Warrant: The State of Oliio, Township, County, ss. To any constable of said township, greeting': Whereas, one J T , wlio is not a freeholder of said countj-, hath taken up a stray hcrsc, [{fere describe fhe stray as fiillij as the justice is able,] which was running at hu-ge, without any settlement, and in this State, and said J T being rtiled by me, a justice of the peace in and for said township and county, (before whom J T appeared and made tlie oath required by law in the premises,) to give sulTicient security for the safe keeping- and delivery of said stray, agreeably to the provisions of the act in such case made and provided, and hath failed so to do: You are therefore commanded to take into 3'our charge the said stray, or deliver tlie same to some freeholder or householder residing in said township, who will take charge of the same; and for so doing this shall be your warrant. Given under my hand and seal tliis dav of , in tlie year •. C H ■ J. p. [Seal.] (3) The return of the warrant may be as follows: lilaj/ G, 184G. — [ executed this writ by taking into my charge, the str.ay within named. [Or .■sa//,] I executed this writ by deliveriiig to A — — B , a house- holder, [or freeholder,] of said township, the stray within named, as will appear by his receipt hereon indorsed. Fucs . 1 J , Constable. May 4, 1846.— Received of I .1 , constable, the stray , within nanted, which I agree to keep, deliver, &.C., as the luwin such case provides. A B . Title 34.] STRAYS. 449 If a person not qualified by the nature of his estate in lands, or by the place where the stray is running at large, to take up a stray, shall, notwithstanding, take up a stray, any freeholder of the town- ship may make complaint to a justice, who must issue his warrant for the removal of such stray from the possession of the taker up, and for the delivery of the same into the custody of any resident of the township, having the qualifications mentioned in the first para- graph of this Title. (1) If no such qualified resident of the township will receive the stray, and proceed under the statute as a taker up, the constable may sutler the stray to go at large; subject, however, to be taken up by any person legally qualified, at any subsequent time.* Tlie owner of a stray, on making satisfactory proof of his right thereto, before any justice of the township, within six months after the same was taken up, is entitled to demand and receive the stray, with increase, if any.*" The qwner, howevei*, must first pay as a reward to the taker up, for each horse kind, the sum of one dollar; for every head of neat cattle fifty cents; for every sheep, hog, or goat, above six months old, twelve and a cents; together with the legal fees paid by the taker up, and reasonable charges for keeping the stray. If the taker up and owner disagree upon the sum to be paid for keeping a stray, either party may apply to a justice of the peace within the township, to nominate three disinterested freehol- ders,(2) whose duty it is to make such allowance for keeping such (a) Stat. 871, $5. (b) Id. ib. -52. (1) Form of the warrant: The State of Ohio, Township, County, ss. To any constable of said township, greeting: Wliereas, complaint has been made to me, G H , a justice of the peace of said township, by A B , a freeholder thereof, that J T , who is not authorized or qtudified by law to take up a stray, hath unlawfully taken up a {here describe the yfrui/ as full y as possible,] being- a stray in said township; and I being- satisfied of the truth of the premises do therefore, in the name of the State of Ohio, hereby command you to take said stray from the possession of said J T and deliver tiie same into the custody of a resident of the township, who holds land in this State, by deed, title bond, or lease for three years, or more, and is in possession thereof: And for so doing this shall be your warrant. Given under my hand and seal, tliis dav of , in the year ■. G II , J. P. iSeaI.'\ (2) Form of nomination of freeholders, to estimate the allowance for keeping- strays : To A B , C D , and E F , freelioldcrs of town- ship, county. Gbntlkmev — You are hereby nominated by me to iiupure and certify to mc, under o:»lli or aftirmatlon, tlie allowance which you believe just and reasonable for keeping {here describe the stray or strays,] stray taken up by A B , on the 57 450 sTKAVs. [Prf. 2, strays, as to theui shall seem just, and forthwith certify tho same, under their hands, to such justice, upon oath or airirniation.(l) If the owner of a stray fail or refuse to pay tlie allowance made by the freeholders, (together with the fees above mentioned,) with- in forty days thereafter, the taker up niay deliver the stray to the constable of the township, who, after giving ten days notice by ad- vertisement at three of the most public places in the township, of the time and place of sale, may proceed to sell the same for ready money to the highest bidder, to satisfy the costs and charges above mentioned. The constable, after paying to the taker up the fees aw'arded and the proper charges, and deducting one dollar for his own fees, must pay the remainder to the owner of the stray.* When the appraised value of a stray, or strays of the same spe- cies, taken up as above mentioned, does not exceed seven^ dollars for the whole number taken up and reported at any one time, and no person shall appear within six months and prove his right there- to, the right to such stray or sti'ays vests in the taker up. If the valuation exceed seven dollars, it may be sold in six months after it was taken up.'' For this purpose the taker up must apply to the justice to whom the return was made of the appraisement, &c., for a copy of the return from the stray book, which the taker up must forthwith deliver to a constable of the township, who must immediately advertise the stray for sale, at three public places within the township, mentioning the time and place of sale, which must be at least ten days from the time of advertising. The sale must be made at some public place in the township, if of the horse (a) Stat. 872, $7. (b) Id 877, §23. (c) Id. 873, $8. day of , A. D. 18 — , and claimed by C D , the parties not being able to agree as to said allowance. G H , J. p. of township. May 4, 1846. The taker up, or owner, at whose instance the freeholders are nominated, should give notice to the opposite party of the inquiry, that he may be present. (1) Form of the return by freeholders, of an allowance for keeping- strays. We, the undersigned, do hereby certify, under oath, tliat dollars, — cents, is a just and reasonable allowance to A B , for keeping the strays in the annexed nomination mentioned. [Signed,} A B C D . 18 — . E F . Sworn to and subscribed, this day of , A. D. 18 — . G H , J. p. Thig return must be attached to the nomination, the form of which is given above. Title 34.] STRAYS. 451 kind, but if any other kind of stray, the same must be sold at the residence of the taker up, between the hours of ten o'clock in the forenoon and four in the afternoon. (1) At the time and place of sale the taker up must deliver the stray to the constable, and take his receipt therefor, and transmit the same to the township trea- surer.^ The constable sells the property to the highest bidder, on a credit of nine months for the residue of the purchase money after paying his own fee of one dollar, and the expenses of taking up, posting and keeping, which expense must be ascertained in the manner before directed. After paying the above fees and expenses, the constable must take from the purchaser, for the residue of the pur- chase money, his obligation with one or more suflicient sureties,(2) payable to the treasurer of the tow^nship or his successor in office, and deliver the same to the treasurer, for the use of the township in which the stray or strays were taken up, taking duplicate receipts for the same, one of which the constable must file with the town- ship clerk, together with a certificate stating to whom tlie property was sold and the amount for which it was sold." The treasurer to whom the bond is given is authorized to sue for, recover, and receive its amount. If, however, the owner of the property sold, within two years, claim and prove his right thereto, to the satisfaction of a justice of the peace of the proper township, such justice must issue his order to the treasurer, requiring him to assign over the obligation, or any judgment thereon, to the claimant for his use, or pay over the money if paid into the treasury on such bond. The treasurer must comply with this order.^ (d) Stat. 873, $8. (e) Id. ib. $9. (g) Id. ib. flO. (1) The form of the ad.ertisement can be readily made out with the proper al- terations, from the form of the advertisement of the sale of property, on execu- tion, for which see page 15.5, n. (8). (2) The form of the obligation may be thus: Know all men by these presents, that we, J P , A B , and C D , are held and bound unto the treasurer of township, in the county of , Ohio, A T , and his successors in office, in the 6um of , \Jierc hiserf double the amount to he paid,'] 'for the payment of which we jointly and scvcrallv bind ourselves. Sealed witli our seals and dated this day of , A. D.'l8— . The condition of tiie above obligation is such, that, whereas, said J P this day purcliased at constable's sale a certain stray [horse taken up by G II ,] for which a credit is given for the sum hereafter mentioned. Now, if the said J P shall pay to the said treasurer, or his successors in office, the sum of dollars, nine months from the above date, then the above obliga- tion to be void, otherwise to be and remain in full force in law. J P , [Seal] A B , [Seal] C D , [Seal] 462 6THAYS. [Prt. 2, If a person taking up a stray, sell the snnio, abuse, or suller it to be abused, eitber by workini^, riding, neglecting to feed, or in any other manner, so tbat sucb stray, in consecjucnce thereof, die, or be lessened in value; or take or cause the stray to be taken out of the township more than two days at any one time, or suller the stray to esca|)C by his neglect; or if any jierson knowingly purchase a stray, contrary to the provisions of the statute; the person so of- fending is liable to the action of the party injured, or the trustees of the townshij), as the case may be, and upon conviction must pay the full amount of damages sustained, and the costs of suit. If the person who takes up a horse, mare, or gelding, in any man- ner works or uses it, he is debarred from all compensation for keep- ing such stray.* The constable, however, who sells the stray, has no right to inquire whether the taker up has forfeited his right to such compensation, or to withhold jiayment on account of his opin- ion upon that subject.^ The ([uestion of forfeiture must first be set- tled by a suit and judgment. If a stoned horse of one and a half years old or upwards, is found running at large out of the inclosed ground of his owner, or keeper, any person may take up the horse, and forthwith give notice to the owner or keeper, if known; and if the owner or keeper does not appear within three days after the notice, and pay the taker up two dollars for his trouble, the latter may advertise the horse, and pro- ceed in the same manner, as has been above directed in case of stray horses. The taker up may also, at the expiration of twenty days from the time of advertising, geld, or procure the iiorsc to be geld- ed, at the risk and expense of the owner.*^ Any person finding either a boat, \vater craft, raft, or piece of a raft, or other valuable property, gone, or going adrift, within this State, or upon any of the waters adjoining thereto, may take it up and secure it.(l) If no person claims and proves his right to it with- in thirty days thereafter, the taker up must cause it to be viewed by- two freeholders, or householders, of the township, who afterwards give a description thereof in writing, together with an estimate of its value, and certify the same under their hands. This certificate must be delivered by the taker up, within five days after it is made out, to some justice of the peace of the township^, who makes a record of it in his stray book. If the taker up is not a freeholder or householder within the county, the justice, if he deem it neces- (B) Stat. 373, ^11. (b) Wright's Rep. 714. (H) Stat. 874, $12. (r) Id. lb. $11. (1) As to tlie appointment, powers, and duties of Wreck-m.isters, see Stat, 1008. Title 34.J sTRATs, 453 sary, may require him to give security, as in case of stray animals taken up by such a person. (1) If the taker up fails to give security when required, the justice may take the boat or other property into his own possession, or deliver it to any freeholder of the township, who must take charge thereof Within fifteen days from the time the above mentioned certificate of the freeholders, or householders, is received by the justice, he must transmit twenty-five cents, (which the taker up must deposit,) together with said certificate, to the clerk of the court of common pleas. The subsequent proceed- ings are the same as where stray animals are taken up, except as hereinafter mentioned.* The owner of the boat, &c., or other pro- perty, is entitled thereto, on proving his right to the same within the time hereafter mentioned, and paying to the taker up for each flat, or keel boat, for each scow% or lighter, for each Kentucky, or Orleans boat, and for each skiff, pirogue, canoe, or other valuable property, such reward or compensation as may be deemed reason- able, at the discretion of the justice, together with legal fees.'' If the appraised value of the boat, &c., or other property, does not exceed five dollars, it vests in the taker up, and is his property, unless claimed and proved by the owner to be his, within two months after it was taken up. If its value exceed five dollars, and the owner does not claim and prove his right within said two months, the taker up must deliver the property to a constable of the township, and take his receipt therefor. The constable must advertise, sell, and pay over the ])roceeds of the sale, in the same manner, as has been before directed,(2) when stray animals are sold. So, the owner may, in like manner, prove and claim from the tovv'nship treasury, the proceeds of such sale. If, however, the appraised value of any boat or craft taken up upon the shores of Lake Erie, does not exceed eight dollars, and no person appears and proves his right thereto within the time above mentioned, the- property in the boat or craft vests in the taker up," Freeholders and householders who perform any duties in relation to strays, &c., as above mentioned, are entitled to receive the sum of fifty cents, for each day actually employed, to be paid by tho person taking up a stray, fec.*^ When a new. township is set off. within the bounds of which there shall be a stray which ought to be sold, the justice to whom the appraisement of such stray was returned, or his successor in ofiice, must furnish a copy of the appraisement to the constable, whose duty it would iiave been to sell the stray, had not the new town- ship ])een set off The constal)lc who is furnished with such copy (a) Stat. 874, $13. (r) Id. ib. $15. (b) Id. 875, $14. (d) Id. 87«, $21. [1] See pages 4-17, 448. [2] See pa^CB 450, 461. 454 STRAYS. [Prt. 2, Title S4.] must advertise and sell in the manner heretofore directed; and the proceeds, after payini^ incidental expenses, must be paid into the treasury of the township set oil", for the use of such township.® It is the duty of every justice to keep a hook, of suflicicnt size, for the puri)ose of recording all strays, the a])praisement of which shall be returned to his office. When his office becomes vacant by his term expiring, resigna- tion, or otherwise, he, or his legal representative, must deliver the stray book to the clerk of the township, who delivers it to the suc- cessor of such justice; and the latter may furnish copies of all ap- praisements, the same as if he had always been in office.'' If any person neglects to perform any of the duties herein above mentioned, and directed by the statute above referred to, or does anything contrar}^ thereto, such person forfeits and must pay a sum not exceeding one hundred dollars, nor less than one dollar; to be recovered by an action of debt, before any court having cognizance thereof; and is moreover liable to the party injured. It is the duty of the township treasurer to sue for, in the name of the trustees of the township, collect and pay over, for the use of the township, all moneys arising by any forfeiture above mentioned.^ (C) Stat. 876, ^17. (i) Id. ib. «19, 20. (h; Id. ib. 5,18. TITLE XXXV. TENDER. SECTION I. IN WHAT CASES, AND AT WHAT TIME, A TENDER MAY BE MADE WITH EFFECT. II. BY WHOM, AND TO AVHOM, TENDER MUST BE MADE. ill. IN WHAT KIND OF MONEY A TENDER SHOULD BE MADE. IV. WHAT AMOUNT MUST BE TENDERED. V. IN AVHAT CASES THE MONEY MUST BE ACTUALLY PRODUCED. VI. A TENDER MUST BE UNCONDITIONAL. VII. OF THE EFFECT OF A TENDER; AND HEREIN, (A) Its general effect (B) When lite contract is for the payment of money ^ and a tender is made before the commencement of the siiit^ icith forjns of docket entries. (C) When the contract is for the payment of a sum of money certain., and a tender is made after suit is brought., icith forms of docket entries. (Z>) When the claim is for damages arising from a negligent or involuntary trespass upon lands., with forms of docket entries. {E) WJien the suit is on a contract for icork aiid labor., or for the payment of property., iritli forms of docket entries. (F) When the suit is brought upon other contracts., or for other wrongs or injuries than those herein before ?nentioned., with fontis of docket entries. Sec I. IN WHAT CASES, AND AT WHAT TIME, A TENDER MAY BE MADE WITH EFFECT.(l) Where the promise or contract is for the payment of money, or suit is brouglit for a neuligent or invokmtary trespass to land, a ten- der may be made at any time before suit is brought.* Where suit is brouglit for other wrongs or injuries, or u[)on other contracts, a tender may be made in open court, of the amount of damages which Stat. 932, $1, and 662,^69. (I) Sec also page 429. 456 TENDER. [Prt. 3, Title 35, the plaintiff admits to be due, with costs ;=" and in such cases a ten- der of the damages, before suit is brought, will not, in general, have any ctlect on the rights of the parties.** A tender upon a contract for work and labor, must be made at the time and place designated in the contract. If not so done, it will not be ellectual, so as to subject the plaintiff to costs from the commencement of the suit, nor entitle the defendant to his elec- tion, w hether he will perform the contract or not.*" But if no legal tender is made l)efore the commencement of the suit, the defendant may after\\'ards bring into court the amount of damages ^yhich he admits to be due, and costs."* If money is to be paid, or property delivered, or work is to bo done '■•on or before'' a particular day, or ^'on"' a particular day, a tender of performance before the day specified, will not, in general, be good, unless accepted.* if a party contract to do any thing, (as to paint a house.) on de- mand or on notice, he will be entitled to a reasonable time, in which to do the thing, after a demand made, or notice given.s If, after thecontract is made, it be agreed that the thing shall be delivered and accepted on another day than the one stipulated in the contract, a tender on that day will be good.*" So, if a party to a contract be ready to deliver the thing con- tracted to be delivered, on the day stipulated, and the delivery or a tender thereof on that day be prevented, by any contrivance or evasion of the other party, it will be equivalent to a tender.' Sec. II. BY AVIIOM, AND TO AVHOM, TENDER MUST BE MALE. The tender need not be made by the debtor iiimself; it is sufli- cient if made by his agent; and a tender by an agent, at his own risk, of more than the money given to him by his principal, is good for the amount tendered.'' A tender to a person authorized by the creditor to receive money for him, is sutTicient.' A tender to the attorney, who has the claim in his hands for col- lection, is a good tender to the principal."* A tender to one of several partners, or joint creditors, is sufficient." Sec. III. IN WHAT KIND OF MONEY A TENDER SHOULD BE MADE. The laws of the United States point out in what coin a legal tender may be made. These are, the gold and silver coin of the (a) Stat. G60, $62. (li) 12 Mass. Rep. 277- (b) 2 Burr. 1170; 2 Bla. Uep. 837. (i) Id. ih. (c) Stat. 932, $1. (k) 2 M. and Sel. 86. (d) Id. 660, $26. (1) 1 Campb. 477; 1 Eng. C. h. Rep. 114. (e) 15 Petcrsd. Ab- 22, 23; 12 MoJ. 421; 17 (m) 10 Eng. C. L. Rep. 271. Mass. Rep. 247. (n) 3 T. R. 683. (g) 12 Mass. Rep. 121. §2, 3, 4, 5.] TExNDER. 457 United States,'^ the gold coins of Great Britain, Portugal, Brazil, France, Spain, Mexico, and Columbia.'' The silver dollars of Mex- ico, Peru, Chili, and Central America, and those restamped in Brazil, and the five franc pieces of France.*^ Cents and bank notes are not a legal tender. But they are a leo-al tender, unless objected to, at the time, on that account.^ Sec. IV. WHAT AMOUNT MUST BE TENDERED. A tender of less than the amount due, is the same as if no tender had been made. If a person tenders more than he ought to pay, it is good; for the other ought to accept so much as is due to him.® But it seems that such a tender is only good where it is made in moneys numbered, so that the creditor may take what is due to him. Therefore, a tender of a fifty dollar bill, from which the creditor is desired to take two dollars, and he refuses to do it, is not good.s But where a greater sum is tendered in moneys not numbered than the amount due, and the ci'editor refuses to receive it, on the ground that the amount is not sufficient, or other cause, and not on account of the form of the tender, the tender is, it seems, good.'' In general, if money is to be paid by reason of a contract, the terms shall be miderstood and accepted, according to their import where it is to be received; that is, it shall be paid in currency there; and therefore, if a contract be made in Cincinnati to pay a given sum of money, as £lOO at London, the contract must be performed by a tender of £lOO English currency.' Sec. V. IN WHAT cases THE MONEY MUST BE ACTUALLY PRODUCED. In general, the money should be actually produced at the time of the tender; but it is unnecessary to produce it, if the creditor dis- pense with such production, or do anything equivalent thereto, and the debtor have the money at the time ready to produce.'' Thus: the agent of the defendant met the plaintiff" in the street, and told him he had come to settle the business between the defendant and him, and that he was desired by the defendant to offer him twenty- five dollars; the plaintifl\said he would not take it; the agent then said that he would give him the other two dollars out of his own pocket, and run the risk of being repaid. He then pulled out his pocket-hook, and told the plaintiff, that if he would go into a neigh- boring public house he would pay him; but the plaintilf said he would not take it. This tender was held to be good, as the ])laintiff' dispensed with the production of the money.' (a) Slory'a L. U. S. 231, $16. (e) .1 Co. 1 lo; 2 Sira. 916. (b) Laws U. S. 1 Suss. 23ii Cong. 65,$1. (Ii) 5 Eiij;. V. L. Kcp. 4!t3; 3 T. R. 683. (c) Id. ib.36, $1. (i I 2 «■ ""d A. 301; 2 I'. Ww-,. 8<<. 696. (<1) 3 T. R. 521; Esp.267; 7 Johns-. Hop. 476. (k) 10 Kast, 1(»1; 3 T. K. 684; 27 Enj;. C. L. (g) 3 Campb. 70; 6 Taunt. 336; 2 Eep. 710; Kep. 378. 16 Eng. C. L. Rep. 87. [\ ) 2 .M. and Scl. 86; 12 Eng.C. L. Rc-p. 35. 58 458 TENDER. [Prt. 2, Title 35, A demand of more than is due will not excuse an actual tender of what is due. A mere otler to pny, without having the money at the time ready to produce, is not a tender, although the plaintiff refuse to receive it.' Sec. VI. A TENDER MUST BE UNCONDITrONAL. The offer of money must he without any qualification, or condi- tion. Therefore, where the defendant tendered a sum of money, and at the same time delivered a certain claim upon the plaintiff, and the plaintiff did not take up the money or paper, but simply said, '•'■You must go to my attorney,"' the tender was held insuffi- cient.^ So, a person making a tender, cannot insist on a receipt in full of all demands; but he must rely on his tender, and upon proof at the trial, that no more was duc.*^ Sec. VII. — OF the effect of a tender. (A) Its general effect. A tender and refusal does not amount to an absolute discharge of the party making the tender, from all liability on the contract. In the case of a tender of money, it in I'^neral only discharges the subsequent interest and costs; and in the case of goods, it in gener- al only exonerates the party from responsibility for their safe keep- ing; but as long as he continues in possession of the goods, he will be bound to deliver them on demand.** If, after a tender, the party to w hom the tender is made conclude to accept the amount tendered, he will be entitled to it; and if, on demand of the amount tendered, the party who made the tender, neglect or refuse to pay it. he destroys the effect of ihe lender, and stands in no better situation than if no tender had ever been made. A demand of the debt, to do away the effect of a tender, must be by some one authorized to receive the money, and to give the debtor a discharge. Where a tender is made by two debtors who are jointly liable, a subsequent demand of o^jeof them is sufficient. The demand should be personal, by the creditor, his agent or attorney, that the defen- dant may have an ■)])portunity of paying in hand the sum demanded; therefore a letter sent by the plaintiff's attorney, demanding the sum tendered, is not sufficient. (B) Of the effect of a tender., when the contract is for the payjne7it of money., and tender is made before the commencement of the suit. The amount of money tendered must be brought into court, and deposited with the instice; and the same should be paid over to the plaintiff, w ho is entitled to it, w hether the judgment be for or against him.® (a) 17 Ens. C. L. Rep. 70; 4 DaII.325. (d) 3 Jolins. Ca. 249; per Thompson, J. (b) 16 Ene. C. L. Rep. 87. (e) Wright's Rep. 336. (c) 12 Mass. Eep. 450. §6,7,(A),(B),(C).(D).] TENDER. 459 If the defendant prove a tender of the amount dtie, or damages sustained, before the suit is commenced, a memorandum of the tact should be made on the docket, and judgment rendered as in other cases against the plaintifl' for costs. No interest can be allowed to the plaintiff, after the tender. If the justice find that no tender was made, or that a sufficient sum was not tendered, or that the defendant, after the tender, re- fused to pay it, then judgment should be rendered accordingly against the defendant for the amount due, and for costs.(l) (C) TV/iei-e the contract is foj- the payment of a sum of money certain^ and a tender is made after suit is brought. Such a tender can only be made by bringing into court the mo- ney due, and interest, and the costs that have at the time accrued. Judgment must be rendered discharging the defendant.(2) Where money is paid into court on a claim entitled to interest, the interest must be paid to the time of payment into court, or the plaintiff may proceed in the action for the difference. {D) When the claiyn is for damages arising from a negligent or involuntary trespass upon lands. If the defendant in such action disclaim to make any title or claim to the land, and the trespass be by negligence or involuntary, and he has tendered sufficient amends for such trespass, and deposits the money with the justice, judgment must be rendered against the plaintiff for costs, and he is forever barred from all other suits con- cerning the same trespass. ''(3) (a) Stat. 662, 569. (1) Form of entry, and jiulg^ment, when there is a tender before suit is com- menced, on a contract for the payment of money. The defendant pleads that he did tender doHars to the plaintiff on the day of , A. D. 18 — , the money due on the note, \or contract, or writing obligatory, or account, or promise, us the case may be"] upon w iiicii this suit is brought, before the commL-ncement tliercof, and brings here into court the above amount. Issue taken thereon, trial had, [here name the witness examitiecf] and I do find said plea true in siibst:ince and tact. It is tht- reforc consi(k-i-ed by me that tile phiiiitiff recover of the defendant the said sum of dollars now hero, and tendered, and by me paid over to the plaintiff, and that the defendant recover of the plaintiff his costs herein, taxed at dollars aiul cents. Execution m.iy issue for the costs of the defendant, and the costs of the plain- tiff may be indorsed on the writ, as in other cases. (2) Form of entry on the docket, when the contract is for the payment of a sum of money certain, and a tender is made after suit is brought. The defendant brought into court (h)llars cents, the amount due the plaintiff, with interest; and d(dlars cents, the costs herein. This suit is thereby settK d. (3) Form of the chickct entry, where tender of amends has been made for a negligent or involuntary trespass. June 1, 1840, 2 o'clock, p. m. The parties appeared; the defenthint deposited with me — — cents, and disclaims to make any title or claim to tlic land un which 460 TENDER. [Prl. 2^ Title 35^ (E) When the unit is on a contract for work and lahor^ or for the payment of jn-opcrti/. If a tender of work, labor or property, be iiKiclc at the time and place designated by the contract, or promise, the value of the labor or jiropcrty so tendered must be ascertained, and judgment ren- dered in iavor of the j)lainlilf for the same, without interest or costs; unless the defendant wiH forthwith })erform his contract, or give the jilaintill" such assurance as the justice may aj>))rove, that he win perform the siune witiiin such time as the justice may direct; in which case, judgment must be rendered for the defendant. ''(1) Where judgment is rendered in favor of the plaintilf for tiie value of the property, or labor, the statute does not direct that he shall pay the costs, but that judgment shall be rendered in his favor for the value of the property, w^ithout interest or costs.* It was perhaps the intention of the legislature to make tlie plaintiff, in such case, pay the costs. He is at all events, liable for his own costs. (a) Stat. 932, $1. the trespass herein complained of was committed, and pleads now here, that the said trespass was involuntary, [or negligent, as the case may Ije] and that he did tender to said plaintiff' said sum of cents before the commencement of this suit, which was sufficient amends for said trespass. Issue thereon taken, and trial had, &.C. I do find said plea true in substance and fact. It is therefore considered by me that the plaintiff' recover of tlie defendant said sum of cents, tendered and now here paid over, and that said defendant recover of said plaintiff" his costs herein, taxed at dollars cents. (1) Form of docket entry where tender has been made upon a contract for work, labor,, or property: May 4, 1846, 2 o'clock, p. m. The parties appeared. The defendant, now- here, pleads that he did tender to the plaintilf the said work and labor, [or sny, the said property, as the case may ie,] at the said time and place designated by the above mentioned contract. Issue taken thereon: and thereupon, at tiie time aforesaid, trial had; W — W — , &c. examined as witnesses for tlie plaintiff", &c.; and I do find the said plea of the plaintiff true, in substance and in fact; and that the value of said work and labor, [or say, tlie said property, us the case may he,'] is forty dollars. If the defendant desire to perform the contract, here add: Thereupon, the de- fend:int did forthwith perform said contract: [or say, thereupon, the defendant did execute a bond, with H — li — as sui-ety, in the penal sum of two hundred dollars, conditioned to perform said contract within one month: or say, conditioned to deliver said property to said A — H — at , on the day of , A. D. 18 — : which bond, and the time therein mentioned for the performance of said contract, l)eing approved and dii'ected by me:] It is tueuefohe consideueu by me, tiiat the defendant recover of the plaintiff' his costs herein, taxed at dol- lars cents. But If ttie defendant prefer that judgment should lie entered against him for the value of the tufjor or property, say: Thereupon the deftndant, not desiring to perform, or to give assurance that he will perform said contract: It is TiiEUErr'iiK toNSiUEiiED by me, that the plaintiff" recover of the defendant the said sum of [licre insert the assessed value of theprop- erty or labor] dollars. §7,(E),(F).] TENDER. 461 When the defendant performs, or gives assurance that he \vill perform the contract, and judgment is entered against the plaintitf for the costs of the defendant, the costs of the plaintili" may be in- dorsed on the execution, and collected, as in other cases.(l) When there has been a tender, and judgment is rendered against the defendant for the value of the property, the defendant becomes the owner of the property tendered. In all cases where there has been a good and legal tender of the property, the defendant may claim, as a right, that he shall be per- mitted to perform the contract, and the justice should direct its per- formance, so far as regards the delivery of the property, in such manner as will be most convenient to the defendant. For instance: if the defendant, in order [o make the tender, was compelled to transport the property to any particular place, the justice should compel the plaintitf to take the property at the place where it may be at the time judgment is rendered, or such other reasonable place as the defendant may designate. (F) Whe7i suit is brought upon other contracts^ or for other icrono-s or injuries^ than those lierein before mentioned. In these cases, a tender before suit is brought has not, in gen- eral, any effect upon the rights of the parties. But after the suit is brought, the defendant may in these, as well as in other cases, bring into court and deposit with the justice, for the use of the plaintitf, the amount that he admits to be due, together with all costs that have then accrued. If the plaintitf' refuse to accept the same in discharge of his suit, and do not afterwards recover a larger amount than the sum deposited, exclusive of costs, he will be liable for such costs as accrue after the deposit.* The plaintifi' will be entitled to the money deposited. (2) (a) Stat. 660, $61,62. (1) See page 109. (2) rorm of docket entry, where the plaintiff recovers no more than the amount deposited by the defendant with the justice: June 1, 1846. Tlie defendant comes, and admits to be due to tlic plaintifl', dollars cents, and deposited tlie same, together with dolhu's cents, tiie amount of tlie present costs of this suit. June 2, 1846. The plaintiff appeared, and refused to accept the above amount, in discharge of this suit. June 2, 1846, 2 o'clock, P. M. The parties appeared, and trial liad. It is thereupon f'oniid by me tliat the said de|)osit is liie full amount due, &c., (o the plaintiff ill the premises. It is therefore considt-red by nie, that the ])LiintJfl' re- cover of the defendant the said sum of dollars cents deposited, and 462 TENDER. [Prt. 2, Titk 35, §7, (F).] If the nmnnnt recovered exceed the amount deposited, then judg- ment is rendered against the defendant lor the costs which accrued after the deposit. Jn either event, the defendant cannot withdi-aw tlie deposit: it belongs to the plaintifl". now here paid over to the plaintiflTby me, and that the defendant recover of the plaintiff his costs herein, which have accrued since said deposit, taxed at — — dollars cents. TITLE XXXVI. TRESPASS UPON LANDS.(l) SECTION I. DEFINITION. II. WHAT AMOUNTS TO A LICENSE TO ENTER UPON LANDS, III. OF THE POSSESSION NECESSARY TO MAINTAIN THIS ACTION. IV. OF THE DEFENCE, ETC. Sec. I. DEFINITION. Trespass is the proper form of action to recover damages for an illegal entry upon, or an immediate injury occasioned by force, ex- press or implied, to land, or to any thing built or placed there with a view of improving it. The term land includes the buildings upon it, as w'ell as the crops. Sec, II, WHAT AMOUNTS TO A LICENSE TO ENTER UPON LAND. The right to land is exclusive; and every entry therein, without the license of the owner, or the license or authority of law, is a trespass.* This leave from the owner, may be either ex/)?'ess or im- plied. The first is, where ho gives his consent in terms, by express- ly authorizing a person to enter upon his land, with or without a valuable consideration for the license. The second may arise from the familiar intimacy of one neighbor with another, in consequence of which he habitually enters on the plaintitf's land, or into his house, for the purpose of friendly intercourse; or where neighbors are in the habit of entering upon the plaintiff's land to procure water from his spring, or well: these, and a great number of other instances might be enumerated, where it is presumed that the owner of the land assented to the entry. But such licenses, whether ex- press or implied, unless ff>unded upon such a consideration as would make them good contracts, (2) may be revoked, at any time by the owner;'' and an entry after notice that the license is revoked, will be a trespass. (a) 3 BI. Corn. 209. (b) 10 Jolins. Rep. 2-16. (1) As to trespass upon public lands of the State, see Stat. 253, (2) As to the consideration necessary to render a cortract valid pnd binding", see page 285, and wiiat tlicrc follows. 464 TRESPASS UPON LANDS. [Pft. 2, Tilk 36. An agreement to purchase land, whether written, or by parol, is not, of itself, an express license to the buyer to enter upon it.* But where the bu}er pays interest on the purchase money, it may be fairly presumed, in the absence of any agreement to the contrary, that the possessi(in of the buyer is by the assent of tiic seller, espe- cially where the entry has been made with the knowledge of the seller. Neither a license to enter, nor a contract to sell and conve^r land upon the payment of the purchase money, or the performance of any other act, will give the buyer a right to cut timber, if the cutting thereof will injure the freehold.* But if such a contract be made for wild lands, w ith a license to enter upon and occupy it, the buyer may improve the land by clearing off the timber, and may sell the timber taken from the land for that purpose.^ But he will have no right to cut timber, unless it be for the purpose of improving and enjoying the land.*^ A right of w^ay may exist by act and operation of law; for if a rpnn grant a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives a way to come at it, and the grantee may cross the grantor's land for that purpose without being a trespasser. A constable or other oHicer, who enters upon land to execute a summons, execution, or the like, is not a trespasser by so doing. So, a creditor may enter upon land, to recjuest the payment of money, or other thing payable there. But a person has no right to enter for the purpose of gleaning in another's field j*^ nor for the purpose of taking away his own goods or chattels,*' unless such property was sold to him by the owner of the land; in which case, a right to go and take the property is incident to the sale.^ Where the law gives an ofTicer, or other person, a license to en- ter, and he abuses it, he thereby forfeits the license, and is consider- ed a trespasser, even from the time he first entered. Thus: If a per- son enters an inn, and wantonly injures property, or behaves with rudeness; or if a constable, or other oflicer, enter with process and illegally break open doors, or assault, or unauthorizedly turn out of possession any of the family : in each of these cases there is a tres- pass committed, in like manner as if there had been no right to enter. Where, however, an authority, or license to enter, is not given by law, but by one party to another, althouirh the latter abuses it to the injury of the former, and an action on the case will lie against him for the injury, yet he will not be liable as a trespasser.*" If a highway becomes impassible, and a traveler is compelled of necessity to go over the land adjoining, the law gives him license to do so.' If a person places on his land, near mine, a noisome and offen- sive nuisance,(l) by which my health, or convenience and comfort (a) 9 Johns. Rep. 35. 331. (e) 6 Johns. Rep. 5; 14 Id. 460. (b) Wrii!hfs Rep. 362. 382. (g) 11 East, 366. (c) 3 Wend. Rep. 104. (li) 8 Co. 146. (d) . H. Bl. 51. (i) 4 Ohio Rep. 427. (1) The term "nuisance," signifies any thing that causes hurt, inconvenience, damage, or annoyance. §2, 3.] TRESPASS UPON LANDS. 465 are annoyed, I may. peaceably enter on the owner's soil and abate it,* and cannot be sued tlierefor in any form of action. But I must not commit a breach of the peace in so doing.(l) Se:. III. C^' THE POSSESSION NECESSARY TO MAINTAIN THIS ACTION- The plaintiff must, in general, be in actual possession of the land at the time the injury is done, in order to maintain the action.'' It is not meant by this, that the plaintiff shall actually have his feet on the land when the trespass is committed ; but the possession is evi- denced by fencing, cultivating, or otherwise improving and using it, or exercising such other acts upon or about the same, as the owners of land generally do."^ TJie mere payment of taxes and having a deed of the land, is not sufficient evidence of title 5*^ but actual possession of part of a farm, accompanied with a claim of title to the whole, will constitute a pos- session of the whole, though a part be altogether unimproved, and not inclosed by any kind offence.^ The plaintiff, in order to show that he claims the whole, may produce his deed, as evidence of the extent of his boundaries and claim. Where land is unimproved and unoccupied, the person having the legal title thereto is deemed in possession, and may sue for a trespass. s This may l)e considered an exception to the general rule. But the plaintiff, in such case, in order to prove his legal title, must show not only a deed, or lease to himself, but a regular chain of conveyances by patent and deeds, duly executed from the Uni- ted States down to himself; or possession by himself and those under whom he claims, for twenty-one years. A person is deemed in actual possession of a highway which runs over his lands, and may maintain trespass against another for any use of the road except for traveling, as for cutting timber, digging in the soil, &c. Tiie public acquire the mere right of using the road for traveling, and the purposes incident to traveling, and every other right belongs to the owner, as exclusively as if the highway never existed.'' If a tenant is in possession of land, he, and not the landlord, must sue a trespasser.' But where land is leased, and trees are cut down by a stranger during the term of the lease, the landlord, though he cannot sue for the trespass, may maintain an action of trover for them, before a justice of the peace;'' for, when the trees were se- (a) 2 Salk. 459; 12 Pctersd. Ab. 795. (c) 12 Johns. Rep. 18:3. (I.) 2 01,io Rep. ](),■;; 12 Jolms. Rep. 183; (li) 1 Uiirr. 143; 1 Pick. Rep. 122; 2 Sir. 8 Mass. Rep. 411. 1004; 2 Jolms. Rep. 357; 6 Mass. Rep. (c) 4 Joliiis. Rep. 105. 457; 1 WiLs. 107; 6 East's Rep. 154. (d) 3 Id. 388. (i) 4 Ohio Rep. 4J5. (e) 1 CaineV, 358; 12 Jolms Rep. 452. (k) Mullcr vs. Flowers, 7 Ohio Rep. (1) As to cnlerinij upon land of another for the purpose of removing drift, or drift wood, see Stut. G()4, fi05. 59 466 TRESPASS UPON lani's. [Pit. '2, 7V7/c; 3(,J. vcred from the land, ihey bccnme the per^ioiuil i»r()i)city of die land- lord.* The tenant can sue the landlord himself, if he enters with- out license.'' IJiit where a person has entered, anil is in possession wrongfully and without license, he cannot of course, sue the owner for a trespass; but is himself liable to an action,'' A tenant who hohls })()ssession after the expiraticm ol" his lease, may maintain an action of trespass against a mere wrongdoer; and it will be no defence to the action, that the lease of the plaintiifhad ex})ired. Where a tenant wrongfully holds possession after the expiration of his lease, the landlord has no right, it seems, to forcibly turn him or his family out; for so doing, or lor entering the house and throw- ing out the tenant's hu'uiture, the landlord may be sued in an action of trespass.*^ But the landlord, in such case, has a right to peacea- bly take possession," and therefore, if the tenancy be determined, and the tenant and his family be gone away and the house locked up, no one being in possession, the landlord would be justified in breaking into tlie house and obtaining ])ossession, even though some articlcsof furniture remained in the house.^ If a tenant sue his landlord for entering upon the premises after the expiration of the lease, and forcibly turning him out, the land- lord may show, to reduce the damages, that he had given the plain- tiff notice to ([uit, and that the tenant had rel'uscd to quit, or to pay rent, and w^as insolvent.*" The person who has a right to gather the growing crop, or grass, is considered in possession, and may sue for a trespass.' Where the owner or possessor works the land on shares with another, they should both sue for an injury done to the crop.(l) Where a tenant has assigned all interest in a crop to another, the possession passes to the assignee, who alone can sue a trespasser.''(2) A verbal lease, where possession is taken and work performed under it, is binding on the landlord and tenant.' (s) 7 Eng, C. L. Rep. 272; 7 T. R. 13. (g) S Eng C. L. Rep. 280. (b) 1 Oliio Rep. 252. (li) VVriglii's Rep. 672. (e) 4 Johns. Rep. 150. (i) 9 Johns. Rep. 10!!. 143; 1 Ohio Rep. 252. (d) 25 Eng. C. L. Rep. 398; 8 Id. 280; hut (kj 'J Johns. Ucp. 143. Bee 4 Johns. Rep. 159, 160; 9 Wend. (I) 1 Ohio Rep. 251; Wright's Rep. 646; 3 Rep. 201. Ohio Rep. 295. (e) 7 T. R. 431. (1) 3 Joh77s. Rep. 216. Unless both sue, tlie defendant may plead this in abate- ment; but before a justice of the peace, the plaintiff should suffer a nonsuit. (2) When the termination of a lease is fixed and certain, the tenant is not enti- tled to the off-growins^ crops sowed by him during- the lease, which ripen aftei" its expiration, but they go to the landlord, or the successor of tlie tenant under a new lease; but it is otherwise where the termination of the lease is uncertain, as, if it depend upon an event over which the tenant has no control, or upon the decision or will of the landlord. 10 Johns. Rep. 360. §3, 4.] TRESPASS UPON LANDS. 4G7 Sec. IV.— of the defence, &c. It follows from what has already been stated, that the plaintiff will fail in the action if lie was not in possession of the land, either in fact or constructively. The defendant may, in general, show that he himself is the owner of the land, and entitled to the posses- sion as against the plaintitK and thereby defeat the action.(l) It wnll be no defence, for the defendant to show that he did not intend to commit a trespass. Thus: if a person without authority cut wood on the land of another, the wood will not only remain the property of the owner of the soil, but, if the trespasser sell the wood, and the purchaser enter upon the land and carry off the wood, he will be lialjle to the owner in an action of trespass, al- though lie was ignorant of the original trespass, and paid the full value of the wood to the person who cut it.^ Where a trespass is committed, and at the same time goods or chattels are injured or taken by the trespasser, the owner may re- cover, in the action of trespass, as well f(jr the unlawful entry upon the lands, as for the property taken, or the injury done thereto. The payment of a judgment for the value of property wrongfully taken and kept by the defendant, vests the ownership of such pro- perty in the defendant.'' But the mere recovery and payment of damages ybr an injury to property, does not transfer the ownership of the property to the wrongdoer. Where suit is brought tor damages done by trespassing animals, which have been assessed by fence viewers, their certificate is />n- ma facie evidence of the amount of damages actually sustained.*^ The amount of the damages found by the fence viewers may be contested, and either party will have a right to introduce testimo- ny for that purpose. If, however, no testimony be given in relation to the damages, the justice should be guided by the certificate. "^(2) (a) 5 Mass. Rep. 241; 5 Johns. Rep. 348. (c) Stat 410, 59. (1)) 6 Johns. Rep. ]6«. (<1) Id. ib. [1] For the exception to this rule, see tlie preceding- section. [2] See furtlier in relation to trespassing animals, Stat. 409 to 412. TITLE XXXVII. TRIAL OF THE RIGHT OF PROPERTY TAKEN ON EXECU- TION BY A SHERIFF. When property levied upon is claimed by any other person than the judgment debtor, the sherifi'must forthwith give notice in wri- ting, to some justice of the peace of the county, in which notice must be set forth, the names of the plaintiff and defendant, together with the name of the claimant; and at the same time, the sherilf must furnish tlie justice with a schedule of the jiroperty claimed. The justice, immediately upon the receipt of the notice and sche- dule, siiould copy the same upon his docket, and issue a writ of ve- nire facias, or summons, directed to the sheriff, or any constable of the county, commanding him to summon five disinterested persons, having the qualifications of electors, who must be named in the ve- nire, to appear before him, at the time and place therein mentioned, (which time must not be more than three days after the date of the writ,) to try and determine the right of the claimant to the property in controversy.''(l) The claimant must give two days' notice in writing.(2) to the plaintiif, or other party for w hose benefit such execution was issued and levied, his agent, or attorney, if within the county, of the time and place of such trial; and must prove on the trial to the satisfac- tion of the justice, that such notice was given, or that the same could not be given by reason of the absence of the party, his agent or at- torney, as above mentioned.^ If the claimant do not satisfy the (a) Stat. 471, $6, (b) Id. ib. (1) Form of the Venire for the jury: The State of Ohio, Township, County, ss. To any constable [or say. To tlie slieriff] of said county, greeting. You are hereby commanded to summon A B , [Jiere name the jury of five,] five disinterested men of said county, liaving tlie quahfications of electors, to appear before me, G H , a justice of the peace of said count}^ at my of- fice in said township, on the day of , A. D. 18 — , at ten o'clock, a. m., to try and determine the riglit of J — C , to certain property claimed by him, and levied upon by the sheriff of said county, by virtue of an execution issued in favor of A B , against C D ; and of this writ make legal service and due return. Given under my hand and seal, this day of , in the year 18 — . G H J. p. [Seal.] (2) The form of this notice Is in substance the same as the one which will be found on page 173. IPit. 2, Title 37.] TRIAL OF sheriff's levt. 4<39 justice in this respect, judgment as in case of nonsuit, should be rendered against him. The justice, for good cause shown, would be authorized to adjourn the trial for a reasonable time. The ad- journment ought not, however, to be granted for such a time, as would prevent the sheriff from afterwards advertising and selling the property on the execution. If by reason of challenge,(l) or any other cause, there is not a full jury, the justice may order the con- stable to fill the panel with talesmen. The jury must be sworn or affirmed by the justice. (2) If the jury find the right to all or any part of the goods to be in the claimant, judgment is entered in his favor for costs, and execu- tion awarded thereon as in other cases;'' but if the right to the goods, and every part thereof^ shall not be vested in the claimant, according to the finding of the jury, then judgment must be ren- dered against the claimant for costs. (3) No appeal is allowed from the judgment of the justice. The effect, however, of the judgment, is the same as on the trial of the right of property levied upon by a constable. (4) FORM OF THE VERDICT. A B , [_the claimant.'] vs. C D , [the plaintiff^ to the execution., or oil/er person for ichose benejit the execution is issued.] If the jury find for the claimant.^ say: We, the jury, do find that the said A B hath a just right to the following property in controversy, to wit: \Jiere state the ar- ticle or goods ichicJi the claimant hath right ^o.] If the jury fimd against the claimant., say: We, the jury, do find that the said A B , the claimant, hath no just right to the goods and chattels claimed by him, or to any part of them. The jury subscribe their names to the verdict. (a) Stat. 471, §6. (1) As to what is a g'ood cause of challenge, see Sfat. 492, §14, (2) The form of the oath is in substance pointed out by the statute, 471, §7, and must, therefore, be in tlie form following: You and each of you do solemnly swear in the presence of Almighty God, the searciicr of all licarts, [or if the jnrtj ajjirni, say, You do solemnly and sincerely declare and affirm,] that you will try and determine tiie right of J C to the property in controversy, and a true verdict give, according to the evidence; [Acre add if the jury affirm, and this you do luidcr the pains and penalties of per- (3) There is a contradiction in tiie terms of the statute, (4) As to the effect of such judgment, see pages 174, 175. 470 TRIAL OF sukriff'.s LKVY. [iV/. 2, Ti^/c 37,] FORM OF KNTRV UPON TlIK DOCKET. A 13 , [t/ie name of the claimant^ vs. C D , [iJie najue of the plain I iff' to the execution^ or tlie name of persons interested in the issuinir ufthe execution.'] Mdi/ Alh, ] 84 G.— This day .S T , the sheriff of coun- ty, served ujioii lue a notice, of which the following is a copy: \Jiere copy the notice:] and said shcritl'also then left with me the following schedule of the property claimed; [here copi/ the schedule;] thereup- on, I issued a venire ftxcias for the following disinterested persons, having the (jual ideations of electors, to wit: [Jiere insert the names ojf the jury:] to appear at 2 o'clock, p, m,, [or other hour agreeably to the fact.] on the day of , 18 — , the time fixed for trial, and delivered the writ to I J , constable. May , 1846, 2 o'clock, p. m. — The claimant and said C D attended. The venire facias returned, [here copy the return.] The claimant satisfied me, by proof, that on the day of , A. D. 18 — , he gave due notice in writing to C D , of the time and place of this trial. The jurors, with R S , appear- ed; were duly sworn to try and determine the right of said claimant, &c. Trial had. [Here name the loitnesses exainined.] The jury re- turned the following verdict: [here copfj the verdict] If the verdict is in favor of the claimant., A B , enter the judgment immediately after the verdict as follows : "It is therefore considered by me, that the said A B re- cover of said C D , (the said party for whose benefit said execution issued,) his costs herein, taxed at dollars cents; and that said A B have restitution of said goods and chat- tels so found, as aforesaid, to belong to said A B ." But if the verdict of the jury is against the right of the claimant^ then enter the judgment.^ immediately after the verdict., as folloivs : "It is therefore considered by me, that the said C D , the said party for whose benefit said execution issued, recover of said A B , the claimant, his costs herein, taxed at dol- lars cents." Each juror summoned and sworn is entitled to fifty cents; and the justice, sheriff, constable, and witnesses, the same fees as in other cases, for like services." The fees of the jury are not immediately paid to them, but taxed with the other costs. A jury fee is taxed as a part of the costs of the party in whose favor the verdict is rendered. (n) Stat. 471.57. TITLE XXXVm. WORK AND LABOE. Where a person is hired to labor for a fixed tinic, (as, for twelve months, at ten dollars per month,) and leaves the service before the end of it, without reasonable cause and without the agreement of the other party, he loses his right to wages for the time he may have w^orked.^ A laborer or servant, so hired, may be dismissed by his employer before the expiration of the term, for unreasonable and willfuf disobedience, or for habitual and gross neglect of his duty; and the employer will not be liable for any part of the wages.'' For, if the law were otherwise, a laborer who is hired for a year, or other fixed period, might, by his own willful misconduct, procure his dis- missal, and then sue for the time he worked. This would place it in the power of the laborer to benefit, at any time, by his own will- ful breach of the contract. On the other hand, the employer can- not, by his misconduct, compel a laborer to quit him before the ex- piration of the term of service, or dismiss him, without sufficient cause, and then refuse to pay him.''(l) For if the employer turn (a) 1 Wend. Rep. 514 ; 2 Pick. Kep. 267 ; 12 (b) 1 Glut. PI. 3f)3, led. 1833]; 27 Eiig. C. L. En?. C. L. Uep. 239 1 Palk. 65; 8 Cow. Kep. 63; Rep. 190; 3 Id. 339; 1 Wend. Rep. 514; 19 E. 2 Mass Rep. 146; 5 Gill and Johns 239; 13 Pick. C. L. Rep. 504; CUit. Con. [Sd ^m. Ed.] 171. 50; 6 Venn. 383; 14 Wend. 257; 7 Gieenl. 70. 76; (c) 2 East. 145; 4 Camp. 375; 2 Eng. C. L. 2 Penn. 454. Rep. 354. (1) The followin.c^ ca.se was decided by the supreme court of the State of New York: (8 Cowen's Rep. 63:) rAN'rnr agai.vst parks. A.ssumpsit for work and labor; tried at the Oneida circuit, October 10th, 1820, before Williams, C. J. It appeared at the trial, that the plaintiff agreed with the defendant to work for him one year, at ten dollars per month. He worked ten months and a half, :ind then left tlie emplojment of the defendant, .saying- he would work no more for him. This was proved by two witnesses; though one swore the dechuvition was qu.'dified, that he would work no more, &.C., till he ascertained whether he could collect his wages. Tiie declaration was made on Salurd:iy, when the plaintili' went away. On Monday he returned and offered to resume his work; but the defendant said he would employ him no longer. Verdict for the plaintiff, subject to the opinion of the court. Curia, per SAVAf;K, C. J. In Joinings v. Camp, (13 Jvhns. 94,) the court laid down this proposition: that a party who enters into a conU-act, and performs part of it, and then, withotit cause, and without agreement, or fault of the parly, of his own mere volition, abandons tlic performance, he cannot maintain an :iction, on an implied assumpsit, for the labor actually performed. Of course, lie ciuinot sue on the express contract. The case of McMilltn v. Vandcrllp, (12 Johnf. 165,) 473 WORK AND LABOU. [Pa/'t 3, away the laborer before the expiration of the year, without a suffi- cient cause, he will be liable to pay his wngcs until tlie end of the year, even though the wages be payable monthly or otherwise.* But if there be a dissolution oi" the contract by mutual consent, the servant is entitled to wages for the time he served, and at the rate agreed on. If there is no specific contract, express or implied, the servant is entitled to recover wages for the time he served. Where there is an agreement to do and complete a particular piece of v/ork, whether the price therefor- be agreed upon or not, the party must fully perform the work before he can recover for his labor. Thus: A agreed to log up, burn, and clear, fit for sowing, ten acres of land, by the 20th of Scj)tember, tor which he was to bo paid eight dollars \)ev acre. He cleared a part of the land, and then, without any default of his employer, quit the work, and sued for his labor. It was decided by the court that he could recover nothing."' So, w^here A agreed to erect and finish a barn for B, by a particu- lar day, for four iiundred dollars, but left it unfinished without the consent of B, it was decided that A could recover nothing for what he had done.*^ So, where the piaintiif had contracted to put in complete repair, for £lO, some chandeliers, and returned them part- ly repaired, it was holden, that as he had not performed his part of the contract, he was not entitled to any thing, though the repairs he made were worth £d. If a mechanic or other person undertake to make a chattel, such as a boat, carriage, table, &:c., the party for whom it is made is not bound to take it and pay for it, unless it is made according to con- tract; or, if there was no express contract, he is not bound to take it unless it is made in a workmanlike manner. (n) 13 Ens. C. L. l!ep. 44-^; 27 Id. 232. (c) 2 Mass. Rep. 147; 14 Id. 282. (b) 13 Johns. Rep. 91; 12 Id. 1G5. had been previously decided on the same principle. If, therefore, in this case, the plaintiff left the service of tlie defendant, witiiout his agTeeixient or fault, lie violated his ccnitract^ and not having- performed on his part, can claim no payment from tlie defendant. In the case last cited, performance of the labor stipulated was held a condition precedent. It is supposed tiiat the offer to return should take this case out of the general rule- Bat if there was a wanton desertion of the defendant's service, witiiout his fault, the plaintiff was guilty of a violation of the contract; and the defendant was under no obligation to receive him again. No cause whatever, is shown in the case, for the plaintiff's conduct. Tlie case proved in Spain v. Ariiot, (2 Stark. 256,) was a stronger case for the servant than the one before the court. The plaintili' was a yearly servant to the defendant, a farmer: and refused, as dinner was ready, to go with horses about a mile, before he had eaten his dinner, though ordered to go by his master. On this ground the master dismissed him immediately; and before the end of the year. Yet, L(l. Elknborough held that the servant could not recover, that the master was warranted in turning him away,- that after a refusal on the part of the servant to perform his work, tiie master is not bound to keep him on as a burtliensome and useless servant to the end of the year. He also held the doctrine of this court, in the cases cited, that full performance was a condition precedent. Faxon v. Mans- field, (2 Mass. Hep. 147,) is also in point for the defence. • The defendant is entitled to judgment. Title 38.] WORK and labor. 473 Questions of a very embarrassing nature sometimes arise upon contracts for building. If there is a special contract, no compensation can be recovered, as we have already seen, unless the contract has been entirely ful- filled. If a carpenter has undertaken to build a building according to a particular plan, and for a specified price, and he deviates from that plan, or does not complete the work, or does it imperfectly, or un- skillfully, it seems that he cannot recover any part of the stipulated compensation; for he has not brought himself within the terms of the contract.* But if the employer see the work go on in a different manner from the terms of the contract, and make no objection; or if such change or alteration be with his assent, the carpenter may recover.''(l) When the special contract is so entirely abandoned by the consent of both parties, that it is impossible to trace it, the workman shall be permitted to charge for the whole work done, according to its value, as if no contract as to price had been made; but if not wholly abandoned, the contract shall operate as far as it can be traced, and the extra work and alterations only, shall be paid for at the usual rate of charging.*'(2) A recovery may be had for the value of the work, when a special contract has been waved, or put an end to, by the agreement of the parties; or where the plaintiff' has been prevented by the defendant from doing the work.*^ Whei'e a workman is employed to do a particular job, and he (a) 3 Taunt. 52; Story's Bailm. 287; see 7 East assumpsit for work and labor. 3 T. R. 590. 479; 1 1 Et.g. C. L. Rep. 414; 3 Campb. 592, n. (h); 8 Jolins. Rep. 392; 9 Id. 115; 451: 2 Pliil. Ev. 83, -n. fa). 4 Cow. Rep. 566. (b) 4 Taunt. 474; 4 Wend. Rep. 285; 4 Cow. (c) 4 Wend. Rep. 285; 3 Eng. C. L. Rep. 85; Rep. .564; 7 Pick. Hep. 181; in such case, 11 Wliea. Rep. 253; 2 Eiig. C. 1-. Rep. 308. the action should not be on the contract, but (d) Wright's Rep. 705; 5 Oliio Rep. 352. (1) H contracted in writing' to build a house for L, at a certain lime, of certain dimensions, and in a certain manner, on L's land, and afterwards built the house within the time, of the dimensions agreed on, but in workmanship and materials varying from the contract. I^ was present almost every day diu-ing the building-, and had an opportunity of seeing all the materials and labor, and objected at times to parts of the materials and work, but continued to give directions about the house, and ordered some variations from the contract. He exj^ressed himself satisfied with jjarts of the work, from time to time, though professing to be no judg-e of it. Soon after the house was done lie refused to accept it, but H had no knowledge that he intended to refuse it, luitil after it was finished. It was held by the court, that H might maintain an action of assiunpslt for his labor and the materials; and that the rule for estimating their value, was to deduct so much from the contract price of the house, as the house was worth less, on account of the variations from the contract, in regard to work, materials, he. 7 Pick. 181. (2) Mechanics in some towns have a Rill of Prices by which tlicy claim to be guided in estimating the value of work. A Bill of Prices is no evidence of the value of work, unless made so by the agreeinent between llie plaintifi" and defen- dant. When work is to be estimated, and the parties have not fixed U[)()n its |)rice, the question is, what was it worth to do the work in the manner it is done, and not what have workmen agreed to ask. 60 474 WORK AND LABOR. [Frt. 2, TUk 38.] chooses to perform some additional work without consulting his em- ployer, he cannot recover iVtr such additional work.* And in case of a buildinu; contract, where the contract is departed from, the em- ployer is not liable for additional work, merely from the fact of his havino; been made aware of the de[)arturc without dissenting, unless he were also aware, (by express notice, or from necessary infer- ence.) that the departure would occasion additional expense.'* Though there be an agreement, that a specific sum shall be paid for the performance of any work, tlie claim may be reduced, by showing that the work or materials were of an insufficient and inferior description and value; and it appears to be now considered that the demand may be altogether deleated, by showing that the work is totally inadec|uate to answer the purpose for which it was undertaken to be [)erformed.'' But if the employer has accepted and paid for work, he cannot recover the money back,*^ notwith- standing that the workman may be liable to an action on the con- tract, for not performing the work in a proper manner. If one employ another to do work, and nothing is said about the compensation, the law implies a promise to pay the usual wages, at the time and place of performance for the like services; and the price cannot be enhanced, by showing that the services were bene- ficial to the employer in an extraordinary degree.^ Where the laborer has failed to perform fully his contract, and his employer sues him for damages on that account, the defendant cannot set off a compensation for what he has done against such claim for damages. Thus: A was employed to saw, by a given time, 300,000 feet of boards, at a stipulated price per 1000 feet; he sawed 144,000 feet, which were received by his employer, and failed to saw the residue. Suit was brought against him for a breach of the contract, and it was holden that he could neither be allowed, as a set off. a compensation for the quantity sawed, nor re- cover a compensation for his labor, having failed to perform his agreement.s(l) B agreed to cultivate A's land, find part of the seed, harvest the crop, and then take one half of it as a compensation for his labor, and deposit the other half in such place as A should direct. B cul- tivated the land; but before the crop was harvested, abscon. (a) 3 Eng. C. h. Rep. 1C3, note. 480 PROCEEDINGS IN CRIMINAL CAUSES. [Pr^. 3, C/i. 1, Form of Affidnvil for a Search Wai-rant.{\) The vStatc of Oliio, county, ss. Before me, G H , one of the justices of the peace for said county, personally came A B , who, being duly sworn according to law, deposeth and saith, that on or about the day of , in the year , at the county of , and within ninety days Inst past, the following goods and chattels, to wit: [liei'e par- ticithirJy describe the artich's^ according to the fact-] have been by some person or persons feloniously taken, stolen and carried away, out of the house, or from the premises of A — B , of said coun- ty; and that the said goods and chattels, as he verily believes, [or some part thereof, stating it according to tlteheiiefaf the affiant I] are concealed in the \_here state the place of concealment^ of one C D , of the township of , in the county of . [Signed,'] A B . Sworn to, and subscribed, before me, at the county aforesaid, this day of , A. D, . G H , J. p. Sec. IV. — OF the issuing of a common state warrant, and search WARRANT, AND THE FORMS THEREOF. The warrant must not be issued until an afhdavit, (the forms of which have been given in the preceding section,) has been sworn to. It does not follow, because the proper affidavit will be, or has been filed, that the justice must issue the warrant. Upon that sub- ject, he may exercise his discretion; but he cannot withhold the warrant'if there are grounds to suspect that the criminal offence charged in the affidavit has been committed. It is the duty of the justice to consider all the circumstances sworn to, and not to grant any warrant, notwithstanding the alfidavit, without such probable cause as might induce a discreet and impartial man to suspect the person accused to be guilty.^ Form of a common State Warrant. The State of Ohio, Connty, ss. To any constable of said county, greeting: Whereas, complaint has been made before me, one of the justices of the peace in and for the county aforesaid, upon the oath of A — (n) 4 Black. Com. 290; 1 Cliit. Crim. Law, 34. (1) The form this affidavit seems to be prescribed in the recital of the search warrant, Stat. 543. §4.] PROCEEDINGS IN CRIMINAL CAUSES. 4Sl B , that C D , late of the county aforesaid, did, on or about the day of , A. D. 1 8 — , at the county , \Jtci-e state the crime or offence^ in the uords of the statute. The description must show suhstantiaUy a ci'iminal matter for which a justice of the j)eace has juinsdiction to issue a warrant.^ And here also state^ whether it loas committed hij the accused as principal., or accessory., according to the afjidavit^ These are therefore to command you to take the said C — D — , if he [or she] be found in your county; or if he [or she,] shall have fled, that you pursue after the said C D , into any other county within this State, and take and safely keep the said C D , so that you have his [or her] body forthwith before me, [or in cases., ivhere the accused may be taken before a justice of the peace other titan the one icho issued the warrant., add'\ or some other jus- tice, to answer the said complaint, and be further dealt with accord- ing to law. Given under my hand and seal, this day of , in the year . G H , J. p. (Seal.) FORM OF A SEARCH WARRANT. The State of Ohio, county, ss. To any constable of said county, greeting: Whereas, it appears to me, G H , one of the justices of the peace in and for the said county, that the following goods and chattels, to wit: [Here describe the articles according to the fact.! have been, within ninety days last past, by some person or persons, feloniously taken, stolen, and carried away, out of the house, or from the premises of A B , of the county of , and that the said A B doth, on oath, [or affirmation, as the case may he,'] declare that he [or she,] verily believes that the said goods and chattels [or some part thereof, to be stated according to the be- lief of the affiant.'] are concealed in the [liei^e name the place of con- cealment!] of one C D , of the township of , in the county of , These are therefore to command you, in the name of the State of Ohio, with the necessary and proper assistance, to enter in the day time into [here describe the house., or other place., as above.,] of the said C D , of the township and county aforesaid, and there diligently search for the said goods and chattels; and if the same or any part thereof be found, upon such search, that you bring the goods so found, and also the body of C D , forthwith be- fore me, or some other justice of tiie peace for said county, to be disposed of, and dealt with according to law. Given under jny hand and seal, this day of , in tiic year . G H , J. I'. (Seal.) (a) Btat. 436,11. Gl X 482 I'ROCEKUINGS IN i. IIIMINAL ( AUSKS. [Prt. 3, C/t. 1, Sli;C. V. OF THE SERVICK AND IlKTailN Ul-' A ( OMMON STATE WARRANT, AND A SEARCH W ARllANT.(l) A l.'iwfiil warrant iVom a justice who iias juiisdictitin of the cause, will justify the olficcr who executes it, although inegularly award- ed; but tiie ollicer is nut excused, if ti\e justice who issued the war- rant have- no jurisdiction of the otlencc.* In all cases" where an arrest is made by virtue of u warrant, it is proper for the oOlcer to produce his warrant, if demanded;" and it is his duty to do so where he executes the warrant out of his coun- ty, or if he be not generally known.'' In no case can tlie breaking open of a door be justified, to make an arrest, unless the otlicer or other person first signify to those in the house the cause of his coming, and request them to give him admittance.*^ The breaking an outer door is, in general, so violent, dangerous, and obnoxious a proceeding, that it siiould be adopted only in extreme cases, where an immediate arrest is retjuisite.* The doors, however, may be broken open, if the oflender cannot otherwise be taken, under a Avarrant for any oilence made punish- able by imprisonment in the penitentiary, or if the offence be an actual breach of the peace ; but there seems no well founded au- thority for extending this right to other ofiences, of a minor nature, unaccompanied by violence.^ In the cases above mentioned, where doors may be broken open, the warrant is a complete justification to the officer acting in good faith under it, even though the party accused should prove his innocence.^ The above rules as to breaking doors, are confined to outward doors and windows; for if the officer find the outward door open, or it be opened to him from within and he enter that way, he may break open inner doors, after proper demand and refusal, if it be necessary to execute any w^arrant.^ And this privilege only extends to those cases where the occupier, or any of his f;unily, who have their domicil, or ordinary residence there, are the objects of the arrest: for if a stranger, whose ordinary residence is elsewhere, upon piu-suit take refuge in the house of another, such house may be broken open, after the usual demand; but then it is at the peril of the officer that the party against whom he has the warrant be there, for otherwise he will be a trespasser.' It!is the duty of the officer, when he has a search warrant, to lireak open, after demand made, the outer door of the house men- tioned in the warrant; not using, how^ever, any unnecessary force, or doing any wanton injury. If the goods mentioned in the search warrant cannot be found, the party accused cannot be arrested upon the warrant. (a") Wrislit's Rep. 710; 6 Oliio Rep. 144; Com. (c) Hale's P. C. 116. Diff. Imprid. 11. 8 aud 9. (e) 1 Chit. C. L. 56. (h) 8 T. R. 188. ' (!,') 1 East P. C. 322; 2 Hale's P. C. 117; 1 (d) Burns' Jus. 106; 2 Hawk. P. C. 86; but sec Chit. C. L. 54. 56. 2 Barn, and Aid. Rep. 58|l (i) 1 East P. C. 323. (1) As to further proceeding's on a search warrant, see Stat. 542, §30. X §5.] PROCEEDINGS IN CRIMINAL CAUSES. 483 A caaimon state warrant authorizes the officer to pursue the ac- cused into any county witliin the State.* After a party has once actually been arrested, and escapes from custody, any door may be broken open to retake him, after proper demand of admittance.'' If Jthe constable take the wrong person on a warrant, he will be a tre^passer.*^ When the officer has made the arrest, he must immediately take the party to the justice who issued the warrant, if such be its com- mand; but if tiie warrant direct the constable to bring the accused befoie the juj^tice who issued it, or some other justice, the constable may act accordingly. The acccused has no ri^ht, in such case, to direct before whom he shall be taken. Where an officer has a warrant against a person accused of an offence |)unisliable with imprisonment in the penitentiary, if the party accused lly, and endeavor to resist the attem])t to apprehend, or escape after his capture, and he be killed in the resistance, or pursuit, an absolute necessity, and that alone, will justify the officer.* But if the warrant be for a less offence, and a mere breach of the peace, the constable killing the party in the attempt to take him, will be guilty of manslaughter, unless indeed he do it in self-defence:'* for the officer has a right to repel force with force, whilst in the le- gal discharge of his duty. When a legal warrant is tendered by a magistrate to a constable, he is bound to receive it, and it must be immediately executed by him; and if a constable neglect or delay to serve it, when in his povv'er, either alone or by calling upon assistance, and the offence charged is punishable with death, or imprisonment in the peniten- tiary, the constable will subject himself to a fine not exceeding five hundred dollars, or to imprisonment in the county jail not exceed- ing ten days, or both, at the discretion of the court of common pleas.^ When the constable is thus guilty of neglect or delay in serving any other legal warrant issued under a charge for a less of- fence than those above mentioned, he subjects himself to the same punishment, except that the fine cannot exceed one hundred dollars.^ A conviction for either of these offences, creates an immediate for- feiture of the office.*^ A constable is liable to the jiunishment first above mentioned, if he voluntarily suffer his prisoner to escape or go at large. '(1) The return to a common warrant may be the same as to a ca- },ias.(2) fa) Slat. 541,^25. (e) Slat. 249, $93. (()) 1 Chit. C. L. 58. (g) Id. ib. $94. (c) Com. ni:;. Itiipris. 11. 7. (Ii) I C D . ) July 5, 1 840. — This day, came A B , and made oath, [or affirmation,] that [liere stale the substance of the charge^ as set forth in the affidavit of the p}-osecuto}-.'] Took his affidavit thereof: thei'e- upon issued a warrant against C D , and delivered the same to I J , constable. July 6, 1840. — Warrant returned with the body of defendant. [-Here copy the return of the constable!] Being satisfied that A G , a material witness for the State, is absent, and his testimony cannot be procured until to-morrow, at 2 o'clock, p. m. ; the defend- ant entered into a recognizance with E F , and M S , his sureties, for his appearance at 2 o'clock, p. m., on to- morrow, to which time this cause was adjourned. If the defendant forfeits his recognizance^ malic an entry thereof as follows : '■'■July 7, 1840. — The defendant failed to appear at any time on the said day, as he was bound to do, according to the conditions of his said recognizance, and the same became and was forfeited." If the defendant be recognized^ and during the progress of the trial escape^ enter thefoifeiture of the recognizance in these irords: '■'■July 7, 1 840, 2 o"" clocks P. M. — The defendant appeared, and this cause came on to trial, and then while the said defendant was on trial, he, without leave, departed, and i'ailed to answer to said charge (a) Stat. 539, $21 and 20. (1) See page 179. 62 490 PROCEEDINGS IN CRIMINAL CAUSES. [P//. 3, Ch. 1,] accorcUnf; to the condition of his said recognizance, and the same became and was Ibrlcited/' /f, however^ the dcfemhrnt appears and docs not depart^ proceed as follows: * ^^The defendant appeared, trial had, A 15 , &:c., witnesses, sworn and examined, and thereui)on the defendant was ordered by me to enter into a recognizance in the sum of — dollars for his ap- pearance at court, fcc, which was done accordingly. E T , and M T , his sureties. [Or soy, if the fact so he, which he neglected to do; and thereupon 1 issued a mittimus for his com- mitment, and delivered the same to I J , consttible.] Re- coo-nized the following witnesses in behalf of the State: A B , E^ — F , &c. Juh/ 7, 1 840. — Mittimus returned, [here copy the return of the con- stable.^ Items of fees, } CHAPTER II. CRIMINAL CAUSES. SECTION I. QUI TAM ACTIONS, AND ACTIONS FOR PENALTIES. ir. ASSAULT AND BATTERY. (A) What is an assault. (B) W/iat is a battery. (C) Of the defence and piinishment. tll. FIGHTING, CHALLENGING TO FIGHT, AND AFFRAYS. IV. PROCEEDINGS REQUIRING THE ACCUSED TO ENTER INTO RECOG- NIZANCE TO KEEP THE PEACE. Sec. I, QUI TAM ACTIONS, AND ACTIONS FOR PENALTIES. There are various statutes forbidding certain acts injurious to the public, or to particular individuals, from being done, under certain money penalties, and authorizing private individuals, or corpora- tions, to sue for the penalties in an action of debt. The same sta- tute that creates the penalty in general, points out the person who shall be plaintifi'. Nothing need be said of such cases, as the jus- tice must simply follow the directions of the statute. Where a sta- tute creates a penalty, and authorizes a recovery before a justice by an action of debt, but is silent as to the person or corporation in whose name the penalty shall be prosecuted, the action should, in general, be brought in the name of ''•The State of Ohio." In such case, however, if that which is prohibited and out of which the for- feiture arises, be prejudicial to any particular person, to whom the penalty is to be paid, that person may sue and recover in his own name.* But if part be given to him, or to any other informer who shall sue, and a part to some other person, or corporation, then the suit should be brought by the party aggrieved, or by the informer; who, with the person or corporation entitled ,^to a portion of the penalty, should be named in the process, and on the docket — Thus: B , [///e name of the parly aggrieved.^ or the informer^ wlio sues as well for \liere name the corporation or person entitled to a portion of the jjenalty^ as for himself. (b) 13 Petered. Ab. 278, note; Holt'e Rep. 6l0i 5 Mod. 913. 492 CRIMINAL CAUSES. [Prt. 3, Ch. 2, Where the penalty is to be paid over, when recovered, to a par- ticular fund, or to a particular otliccr or corporation, and the statute is silent as to who shall sue, perhaj)s tlio safest course will be to bring the suit in the name of The State of Ohio, for the use of the fund, corporation, or person, named in the statute.* The State of Ohio is always the i)laintiir in proceedings of a strict- ly criminal nature;^ and the above remarks are applicable only to certain statutes which create a penalty, or forfeiture, in the nature of a debt. Thus: if a person drive faster than a walk over certain bridges, he is liable to a penalty of not less than one, nor more than five dollars, which may be recovered by the owner of the bridge.*^ It is to offences of this and the like nature, that the above observa- tions arc particularly applicable. These actions for penalties, when not brought in the name of the State, and where the justice has authority to render judgment, should, perhaps, since the recent statute in relation to imprison- ment for debt, be founded upon an affidavit, if a capias or warrant is issued. The rules in relation to costs,(l) stay of execution,(2) and an ap- peal,(3) have already been stated. Sec. II. ASSAULT and BATTERy. (A) TV hat is an assault. An assault is an attempt to commit a forcible crime against the person of another; such as an attempt to commit a battery, murder, robbery, rape, &c. Striking at another with a cane, stick, or fist, although the party striking miss his aim; drawing a sword, or throw- ing a s-tone, or bottle, fcc, with intent to wound or strike; present- ing a loaded gun at a man who is within the distance to w-hich the gun will carry; pointing a pitchfork at him, when within reach of it; or any other act indicating an intention to use violence against the person of another, is an assault. Mere words, however, never can amount to an assault. So, if a man strike at another, but at such a distance that he cannot by possibility touch him, it is no as- sault. The intention, as well as the act, must constitute an assault; for, if a person show, at the time he does the act, an intention not to strike, the act cannot be deemed an assault. For instance, if a man in a threatening posture should half draw a sword from its scabbard, and say, '■'If the grand jury were not in session, I would run you through the body;" it would be no assault, as the words explain that the party did not intend any immediate injury. (a) 5 East, 315; 1 Chitty's Plead. 128, (Gtli Am. (1); Const, of Ohio, Art. 3, $12. Edition.) (c) Slat. 1G4. $2. (1) See pages 112, 113. (2) See page 132. (3) See page 123. §2,(A),(B),(C).] CRIMINAL CAUSES, 493 (B) What is a battery. It means not merely to strike forcibly with the hand or a stick, or the like, but includes every touching (however trilling) of another's person, in an angry, revengeful, rude, or insolent manner; as, for instance, pushing him in anger; holding him by the arm; spitting in his face; jostling him out of the way; pushing another man against him; striking a horse upon which he is riding, whereby he is thrown; or the like. (C) Of the defence and punishment. It is a good defence, to prove that the battery happened by acci- dent, or misadventure. If a horse run away with his rider, and run against a man, it is no battery. It is a good defence, to prove that the alledged battery was mere- ly the correcting of a child by his parent, or an apprentice or scho- lar by his master: provided the correction be not excessive and im- moderate in the manner, instrument, and quantity, under all the circumstances. It is a good defence, in justification even of a wounding or dis- abling an assailant, to prove that he assaulted or beat the defendant first, if the defendant also prove that he committed the alledged bat- tery in his own defence. If the defendant prove an assault, merely, upon him — as, for in- stance, that the prosecutor lifted up his stick in order to strike him, it it sufficient to justify the defendant's striking the prosecutor; for he need not in such a case, stay until the other has actually struck him. But in general, it v>ill be no justification for the defendant to show a previous assault, or assault and battery upon liim, unless he also shows that he only made use of sufficient force to repel the at- tack upon him: for, if it were excessive — if it were greater than was necessary for mere defence — the prior assault or battery upon the defendant, will be no justification to him, but both parties will then be guilty, and should be punished. A husband may justify a batteiy in defence of his wife; a wife in defence of her husband; a parent in defence of his child; a child in defence of his parent; an apj)i"entice in defence of his master; and the master in defence of his apprentice: but, in all these cases, the battery must bo such only as was necessary to tlic defence of his relation; for in these cases also, if it were excessive, and greater than was necessary for mere defence, the prior assault will be no justification, but both parties will be guilty each of an assault and battery upon the other. It will also be a sufficient answer to this defence, to prove that the first assault was justifiable. The defendant may justify a battery, by proving that he commit- ted it in defence of his possession. If a man enters your house, or go on your farm, you must first rc(|ucst in'm to depart, before you can justify laying hands on him for the i)urpose of removing him; 494 CRIMINAL CAUSES. [Pw. 3, Ch. % and if you should immediately thereafter rush upon him, before giving him time to comply with your request, you would be guilty of an assault and battery; and even if lie refuse to depart, you have no right to lise more force" than is necessary to remove him, and at tiie same time protect your person from injury. If the trespas- ser then use force, you n:tay op})ose force to force; and in such a case, if you are assaulted and beaten, you may justify a wounding and disabling of the trespasser, in self-defence^ as is above mention- ed. In answer, however, to a justification jn defence of p^s'ession, the prosecutor may prove, in behalf of the Sta^j^that the battery was excessive, or that more force, or such a weapon was used, as, under the circumstances, was not required, to repel the invasion of the wrongdoer. A landlord has no right to forcibly turn out his tenant, after the expiration of tlic lcasc.(l) If the warrant was issued against the accused on tlic complaint of the party injured, (2) and the defendant pleads guilty, the justice may render judgment and issue execution for a fine, not exceeding one hundred, nor less than five dollars.'' ]f, however, the assault and battery is of an aggravated nature, such as requires imprison- ment as a proper punishment, the justice should, notwithstanding the plea of guilty, require the defendant to enter into a recogniz- ance, as in other criminal cases;(3) and in default thereof, commit the defendant to the jail of the county. If the defendant pleads not guilty, and persists in that plea after trial, the justice cannot fine him, but must either discharge, commit, or recognize him.'' The defendant may, however, at any time before he enters into a recog- nizance, or the writ for his commitment to jail is handed to the con- stable, withdraw his plea of not guilty, and plead guilty. If the prosecution is not commenced within three months after the offence was committed, the justice must discharge the defendant.*^ Sec. III. FIGHTING, CHALLENGING TO FIGHT, AND AFFRATS, A justice may fine any person, (not exceeding ten, nor less than one dollar,) who challenges another to fight at fisticufts, or with cudgels; or who provokes, or attempts to provoke another, to com- mit a breach of the peace."* Judgment is rendered and execution issued, as in civil cases.® The prosecution must be commenced within ten days after the offence is committed.^ » (a) Stat. 537, §3. * (d) Stat. 538, §6. (b) Id. 538. $5. (e) Id. ih. $7. , (c) Id. ib. $8. (g) Id. ib. $8. (1) See page 466. (2) See page 495, note [1]. (3) For the form of the recognizance, see page 487. ■4» §3,4,] CRIMINAL CAUSES. 495 If a person is arrested on a warrat for fighting, or boxing at fisti- cufl's, issued on the complaint of the party injured, and pleads guilty before the justice, the latter may either recognize the defendant,* or render judgment and issue execution for a sum not less than five, nor more than one hundred dollars, with costs, ""(l) The prosecution must be commenced within three months; if commenced after that tinje the defendant should be discharged,*^ If the defendant pleads not guilty, and persists in that plea after trial, the justice must either discharge, commit, or recognize him, as in other criminal cases. '^ If the justice issuing the warrant in these cases, or for an assault and battery, be absent or incapable of act- ing, the accused may be taken before some other justice of the county, the party complaining being notified of the time and place of trial.^ Sec. IV. PROCEEWNGS REQUIRING THE ACCUSED TO ENTER INTO A RE- COGNIZANCE TO KEEP THE PEACE, &C, Any person may make complaint, on oath or aflirmation, before a justice of the peace, stating amongst other things, that the person making the complaint has just cause to fear, and does fear, that an- other will beat, wound, or kill him or her, or his or her ward, child, or children, or will commit some other act of personal violence upon him, her, or them; or will burn his or her dwelling house, or out- house; or will maliciously injure, or destroy, his or her property, otlier than the buildings above mentioned.^(2) (a) Stat. 537, $4 () Id. 438. (c) Id. 265. 269, $15. (1) The following- is a g'ood conveyance, when duly executed and acknow- ledged : " I, A I? , for one dollui- paid by C I) , do grant and convey- to C U and his iieirs, ia-lot iNo. 343 in Columbus." 4 A'crit's Com. 26 J. 502 FORMS OF CONVEYANCES, &C. ' [Frt. 4. the estate of the wife, or her right of dower in any land, tenement, or hereditament, situate within this State; such deed, mortgage, or otlicr instrument of writing, must be signed and sealed by the hus- b;ind and wife; and such signing and sealing must be attested and acknowledged in the manner prescribed by law: and in addition thereto, the oliicer bel'ore whom such acknowledgment shall be made, must examine the wife separate and apart from her hus- band, and must read, or otherwise make known to her, the con- tents of such deed, mortgage, or other instrument of writing: and if, upon such separate examination, she shall declare that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith, such officer must certify such examination and declaration of the wife, together with the acknowledgment as aforesaid, on such deed, mortgage, or other instrument of writing, and subscribe his name thereto. All powers of attorney authorizing the sale, conveyance, or mort- gaging of any real estate, must be signed, sealed, attested, acknow- ledged, and certified, in the manner before pointed out in the case of deeds, mortgages, &c., and when the right of the wife in lands is to be conveyed or relinquished, she must join her husband in the execution of the power of attorney for that purpose, which power must be executed, attested, and acknowledged, agreeably to the above requisitions, A conveyance made under a power executed as aforesaid, must contain the name of the wife, and must divest her of all claim to the estnte; provided, that the wife may, at any time before a sale and conveyance, revoke such power, so far as it relates to her in- terest; but such revocation does not take effect until recorded in the county where the lands are situate. All deeds, mortgages, powers of attorney, and other instruments of writing, for the conveyance or incumbrance of any lands, tene- ments, or hereditaments, situate within this State, executed and acknowledged, or proved, in any other State, Territory, or coun- try, in conformity with the laws of such State, Territory, or coun- try, or in conformity with the laws of this State, shall be as valid as if executed within this State, in conformity with the foregoing provisions. All powers of attorney authorizing the execution of any deed, mortgage, or other instrument of writing, for the sale, convey- ance, or incumbrance of any lands, tenements, or hereditaments, in this State, must be recorded in the office of the recorder of the county in which such lands, tenements, or hereditaments, are situ- ated, previous to such sale, or the execution of such deed, mort- gage, or other instrument of wa'iting, by virtue of such power of attorney. AH mortgages executed as above mentioned, must be recorded in the office of the recorder of the county in which such mortgaged premises are situated, and will take etfect from the time when the same are recorded; and if two or more mortgages are presented for record on the same day, they take ellect from the order of presenta- Prt. 4.] FORMS OF CONVEYAXCES, fcc. 503 tion for record; the first presented, must be the first recorded; and the first recorded, Mill have preference. All other deeds and instruments of writing for the conveyance or incun^rance of any lands, tenements, or hereditaments, executed agreeal)ly to the foregoing provisions, must be so recorded within six months from the date thereof; and if such deed, or other instrument of writing, be not so recorded within the time herein specified, the same will be deemed fraudulent, so far as it relates to any subse- quent bona fide purchaser, having, at the time of making such pur- chase, no knowledge of the existence of such former deed, or other instrument of writing: provided, that such deed, or other instrument of writing, may be recorded after the expiration of the time herein set forth, and from the date of such record, will be notice to any subsequent purchaser. Nothing in the laws above referred to, can be construed to affect the validity of any lease of school or ministerial lands, for any term not exceeding ten years; or of any other lands, for any term not exceeding three years; or to require such lease to be attested, ac- knowledged, or recorded. All deeds, mortgages, and other instruments of writing, hereto- fore executed, in conformity wath the provisions of the laws in force at the time of their execution, will be as valid as if executed accord- ing to the provision of the laws above mentioned. The forms of the following instruments Mill be here inserted. SECTION r. GENERAL AVARRANTT DEED. II. RELEASE, OR Q.UIT CLAIM DEED. III. MORTGAGE. IV. LEASE. v. POWERS OF ATTORNEY TO SELL AND LEASE LANDS. Vr. POWER OF ATTORNEY TO COLLECT DEBTS. VII. WARRANT OF ATTORNEY TO CONFESS JUDGMENT IN THE COURT OF COMMON PLEAS OR SUPREME COURT. VIIL WARRANT OF ATTORNEY TO CONFESS JUDGMENT BEFORE A JUSTICE OF THE PEACE. IX. ARBITRATION BOND AND AWARD. X. COMMON BOND, WITH A CONDITION XI. INDENTURES OF APPRENTICESHIP. XII. BILL OF SALE, AND MORTGAGE OF GOODS AND CHATTELS. XIII. PROMISSORY NOTES. XIV. BILL OF EXCHANGE. XV. RELEASE AND RECEIPTS. XVI. AGREEMENTS. XVII. LAST WILL AND TESTAMENT. 504 S OF CONVKYANCES, &C. [Prt. 4, Sec. I. — GENr:n,AL warranty deep. Know all men by these presents, that we, A B , wile of said A B , of the county of sideration of the sum of B , anff r- — , 0//W, in con- dollars, in hand, paid by E — F — , of the same place, have bargained and sold, and do hereby grant, bargain, sell, and convey, unto the said E-^^ F , his heirs and assigns forever, the following premises, situate in the county of , in the .State of Ohio, and in the , [^-c] and bounded and described as follows: [Here give a descrij)tioii of the jrremises^ hij metes and hounds^{\) To HAVE AND TO HOLD said prcmises, with the appurtenances, unto the said E — F — , his heirs and assigns, forever, * And the said A— B — , for himself and heirs, doth hereby covenant with said E — F — , his heirs and assigns, that he is lawfully seized of the pre- mises aforesaid;'' that the premises arc free and clear from all in- cumbrances whatsoever;'^ and that he will forever warrant and defend tlie same, with the appurtenances, unto the said E — F — , (&) A covenant of seizin in a deetl, when the covenantor is in pos.*ession, clainiitig title, runs with the land; that is, he to wl.oin tlie land is af- terwards convoyed, is entitled to tlie henefil of the covenant, tl'e same as if the covenant were made to himself; hut where the covenantor is not in pos- session, and the title is defective, the covenant of seizin is hrokeii as soon as made, and never at- taches to the land, heinplinths, and washboard to correspond, broke round pilasters. The other rooms to be finished with double architraves, five inches wide, and washboard to correspond. The doors to be six panels, raised on both sides, with mouldings sprigged on. The stairs from cellar to first floor, and garret stairs, to be plain and §16.] FORMS OF CONVEYANCES, &C. 517 planed: the stairs from first to second floor to be six and a half inches rise for each step, scotia under nosing, plain bracketed, dog leg stairs. The mantel in the room marked No. 1 on the drawing hereto annexed, to be finished with Ionic columns and capitals, with heavy plain cornice, &c. to correspond. The mantels in the other rooms to correspond with the finish above described. Steps, with platform and hand railing, for the outside doors, to correspond with the stairs from first to second iloor above described. The closets marked on the drawing hereto annexed, to be finished with shelves planed on both sides, and panel doors, raised on outside. Pantry in kitchen to be finished with shelves, and two large drawers. The floors to be ploughed and tongued, secret nailed, and not exceeding six inches wide. Sink water-tight, six feet by four, with spout, &:c. for kitchen. The sides of the rooms that are made of brick wall, to have w^edges inserted between the bricks, and upright strips of waste boards nailed thereon, ten inches apart to receive the lath. To do all the other carpenters and joiner's work in and about said dwelling, not herein, nor in said drawing mentioned, which may be necessary to finish and complete the wood work in and about said dwelling, to the turning of the door keys. All the said work to be done in a good and workmanlike manner., FORM OF AN AGREEMENT FOR BUILDING A HOUSE. This agreement, between A — B and C — D , witnesseth: That the specification hereunto annexed, marked No. , and every clause thereof, is made a part of this agreement; and said C — D hereby agrees, on or before the day of , in the year , at -, to do, perform, finish, and complete, in the manner therein stated, all the work set forth and referred to in said specification. The work to be commenced on the day of , A, D. . And the said A — B agrees to furnish all the ma- terials necessary for said work, as the same shall be wanted; and to pay said C — D , for said work, reference being had to said specification in the admeasurement of said work, as follows: [here state the paijments.'] If any alteration of, or addition to said building, or any part thereof, should be directed by said A — B , such alteration or addition shall be estimated by deducting ten per cent from the Cin- cinnati hill of prices for the like work, and paid for by said C — D accordingly; and if by such olteration or addition any work included in said specification is not done, the volue of such work shall be deducted iVom tlie price agreed to be paid for the whole, and estimated in like manner as last mentioned. C — D shall dismiss any hands employed by him in said work, whenever said A — B shall so direct. In witness whereof. &c. 518 FORMS OF CONVEYANCES, &;c. [Par< 4, Sec, XVII. — last avill and testamf.nt. A last will ;iml tcstanicnl, in order to be valid, must, in general, be signed by tlie ptirty making the same, or by some other person in the presence ot" the testator, by his express direction; and must be attested and subscribed in the presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.* A male under the age of twenty-one years, and a female under the age of eighteen years, cannot make a will.'' The right of the widow to dower, cannot be aflected by a will; unless there be a devise to her, and the widow, within six months after the probate of the will, makes known to the court of common pleas her election to relinquish her dower, and claim under the will.'' A will, or any part of it, may be revoked by the testator destroy- ing, canceling, or obliterating it, or causing it to be done in his pre- sence; or by making a subsequent will or codicil, in the manner above mentioned.^ A will made while the testator has no children, will be void if he afterwards have a child.® If a witness to a will is a devisee, or a legatee, and the will can- not be proved except by the testimony of such witness, the bequest or devise will be void; but if the witness W'ould have been entitled to any share of the estate, in case such will were not established, he will be entitled to so much of such share as will not exceed the devise or bequest. s A verbal will is valid in relation to personal property only, and when made in the last sickness of the deceased, and proved by two competent disinterested witnesses, who can testify that the testa- tor was of sound mind and memory, and that he at the same time cal- led on some person present to bear testimony that such was his will.*^ Such will, however, wmII not be valid, unless committed to writing, and subscribed by the witnesses within ten days after it is made, and proved before the court of common pleas within six months from the time the testamentary words were spoken.^ The testator may, by will, appoint guardians for such of his chil- dren as are unniarried and under twenty-one years of age at the time of his decease, or whether then born or not.'' These are all the provisions of the statute which it is necessary for the person to consult who is about to draft a will. (a) Stat. 992, $2. (p) Stat. 99.'?. $12. (h; Id. 4,-33. (Ii) Id. 1003, $68. (c) Id. 99S. $45. (i) M. 100.^ $68,9. (d) Id.ib. $41. (k) Id. lb. $66. (ej Id. 997, $40. §17.] FORMS OF CONVEYANCES, &;c, 519 FORM OF A WILL. In the name of the Benevolent Father of all: I, A B , of , do make and publish this my last will and testament: Item 1st. I give and devise to my beloved wife, in lieu of her dower, the farm on which we now reside, situate in , &c,, containing about acres, during her natural life; and all the stock, household goods, furniture, provisions, and other goods and chattels which may be thereon, at the time of my decease, during her natural life as aforesaid; she, however, selling so much thereof as may be sufficient to pay my just debts. At the death of my said wife, the real estate aforesaid, and such part of the said personal property or the proceeds thereof, as may then remain unconsumed and unexpended, 1 give and devise to my sons, C B and R B , and their heirs. If, however, either of my said two sons should die, before the decease of my said wife, leaving no chil- dren living at the decease of my said wife, then the share of said property above devised to such deceased son, is hereby devised and bequeathed to my son S B , and his heirs. If both of my said two sons, C B and R B , should die before the decease of my said wife, leaving no children living at the de- cease of my said wife, then 1 devise and bequeath said property, after the decease of my said wife, to my two sons, S — B and L B , and their heirs. If my said wife should not survive me, then 1 devise and bequeath the property aforesaid to my two sons, C — B — and R — B — , and their heirs forever. Item 2d. I devise and bequeath to my son L — B — , and his heirs, the farm on which S — R — now resides,- situate , &c., containing , &c. Item 3n. I do hereb}' nominate and appoint my beloved wife guardian of my daughter M B , until the said M B • arrives at the age of twenty-one years, or intermarries; but in case my wife should again marry, her guardianship of said child shall cease and determine upon her intermarriage; and in her place I do hereby nominate my esteemed friend, P W , to have the guardianship of my said d lughter, until she arrives at the age of twenty-one, or intermarries. 1 do hereby nominate and appoint my esteemed fiiend P — W — , guardian of my sons E — B — and R — B — . until they arrive at the age of twenty-one years. ]\' the said P — W — sliould die hefoi'e my said two sons arrive to major- ity, they or either of them surviving him, then I do a|)point L — IM — their guardian during their minority after the decease of said P — W — . My s;iid guardians are hereby enjoined to give my children a good English education, and to rear them in habits of industry, and inculcate upon them, as far as may be, the duties of Chris- tianity. Item 4th. I do hereby nominate and np])()int R — ^^ and W — , executors of this my last will and testament, hereby au- 520 Konius OF conn kyajXces, &c. [^Pa7't 4, thorizing and empoweiing them to compromise, adjust, release, and discharge, in such manner as they may deem proper, the debts and claims due me, I do also authorize and empower them, if it shall become necessary in order to pay my debts, to sell, by private sale, or in such manner, upon such terms of credit, or otherwise, as they may think proi)er, all or any part of my real estate, and deeds to purchasers to execute, acknowledge, and deliver, in fee simple. I do hereby revoke all former wills by me made. In testimony whereof, 1 have hereunto set my hand and seal, this day of , in the year 18 — . Signed and acknowledged by said A B , as his last will and testament, in our presence; and signed bv us in his presence. R-^ S , T U . A B (Seal) FOUM OF A CODICIL TO A WILL. Whereas, I, A — B — , on the — day of , in the year 18 — , made my last will and testament of that day, do hereby declare the following to be a codicil to the same: I do hereby give and bequeath to , &c. In witness whei*eof, &c. (1) MISCELLANEOUS DEVISES. I give and bequeath unto my esteemed friend P — W , whom I appoint executor of this my'will, all my goods, chattels, and per- sonal property of every kind whatsoever, in trust to and for the uses and purposes following: The said P — W — shall sell, collect, and otherwise reduce the same to cash, and after paying my debts, shall from time to time as money may be realized from said property, purchase therewith stocks, yielding and paying dividends or interest. The dividend or interest from said stocks shall be paid over from time to time as the same may be received, to my beloved wife, L — B— , during her lifetime, and upon her decease the said stock and the interest that may be then due thereon, shall be paid, transferred, and delivered to . I hereby constitute and appoint C, D, and E, all of , and the survivors and survivor of them, executors and executor of this my last will and testament. (1) A codicil must be signed and witnessed in like manner as a will. §17.] • FORMS OF CONVEYANCES, ETC. 521 After payment of my just debts and charges, I dispose of my real estate as follows: I give and devise all my messuages, lands and tenements, where- soever situated, unto the said C, D, and E, and their heirs, and the heirs of the survivor of them, to have and to hold the same to the uses following, to wit: To the use of them the said C, D, and E, and the survivor of them, and his heirs, for and during the life of F — G — , Esq., husband of my daughter, H — B — , and after his decease, if my said daughter shall survive him, to the use of my said daughter and her heirs and assigns forever; but if my said daughter shall not survive him, then, after his decease, to the use of the children of my said daughter, and their respective heirs forever, as tenants in common, and the legal representatives of any child of my said daughter, who may have deceased, to be entitled to the same share as his or her parent would have been, if then living. And the freehold which I have devised unto the said C, D, and E, and the survivor of them, for and during the life of the said F — G — , is upon the especial trusts following, to wit: That they the said C, D, and E, and the survivor of them, shall, during the con- tinuance of the said estate, take and receive the rents and profits accruing from the messuages, lands, and tenements aforesaid, and therewith make all necessary repairs, and pay all taxes and other necessary charges and expenses in and about the same; and after all such payments deducted, shall at such times and places annu- ally, and in such portions as they (or the survivors.) or the survivor of them, or the heirs of the survivor of them, may deem expedient, pay over the residue of such rents and profits to my said daughter during her life, to her sole and separate use and benefit; and after her decease, in the same manner, shall appropriate and expend the same in the maintenance and education of her children, or any or either of them, as the said C, D, and E, or the survivors or survivor of them, may deem expedient. POWER TO SELL, ETC. And I do hereby authorize and empower the said C, D, and E, and the survivors and siu'vivor of them, during the life of the said F — G — , if they shall jiuigo expedient, either in the lifetime of my said daughter, ior iier suppni-t and maintenance, oj- after her decease in the lifetime of the said F — G — , ibr the maintenance and echica- tion of her children, or any or either of them, to sell and convey for such prices as they shall deem proper, in fee simple, or for any less estate, all or any part of my messuages, lands, and tenements afore- said, and the whole proceeds of such sale or sales, or any part there- of, or the interest and income thereof, from time to time, and at such times and places, in such proportions as they may judge expedient, to appropriate to all or any of the purposes aforesaid; and alter the decease of the said G , to pay the whole prot^eeds of such sales then remaining, unto my said daughter, if living, for her own use, 67 522 FORMS OF CONVEYANCES, &:c. [Part 4.] forever; otherwise, to distribute the same among her children, to their respective uses forever, as icnnnis in common; and the legal representatives of any child, who may have deceased, to be enti- tled to the same siiare as ids or her parent would have been, if then livini;. A SHORT WILL. First, it is my will that my just debts and all charges be paid out of my estate. Item. I give and devise all the residue of my estate to E — , my wife, to be to her and her heirs, forever. Item. I aj-)point and make the said E , executrix of this my last will and testament. 'f^ INDEX. Abatement of Suit; effect of, and when it in general takes place, 24, form of docket entry in such case, 24 note 16. Absconding Debtor; how proceeded against, with forms of process and docket entries, 217 to 236. (See Attachment.) statute of limitations does not run against debts due by, 360. Absence J of justice six months, vacates his office, 4. of debtor prevents statute of limitation from running, 360. of plaintiff at time for trial, its etfect when suit is by summons, 44; when suit is by capias, 49 to 51. of defendant at time for trial, effect when suit is by summons, 45; when suit is by capias, 51,2. of justice, at the time for tji'ial, its effect, 46. from couaty, of attesting witness to an instrument, what proof of the execution of the instrument may be received, 83,4. witness failing to attend at trial, how proceeded against, 54 to 5Q] failing to attend to have deposition taken, 88. when absence of maker of note or bond, or the drawee or acceptor of a bill, will excuse demand on them, and when not, 408,9. when absence of a party to a negotiable instrument upon whom notice should be served, will excuse notice, and when not, 408. (See Bill of Exchange — Promissory Note — Negotiable Bond.) what constable to do with prisoner when jailer is absent, 167. Absolute Promise; what, 213, note 1. Acceptance of a Bill of Exchange; what it is, 395,6. (See Bill of Exc.) Acceptor of a Bill of Exchange; who so called, 382. (See Bill of Exc.) Accommodation Acceptor; who is so called, 414. Accommodation Indorser; who is .so called, li. Accommodation Paper; what is so called, and the rights and liabilities of ' the parties thereto, 414. 416. 400. 416 n. 1. no notice of demand and nonpayment need be given to the party for whose accommodation the paper is executed, 408. who is liable for costs, 331. 400. Accord and Satisfaction; what, 185. must be a consideration for an agreement to compromise, 185. what is a consideration, 285. when accepting less than the debt, in discharge of the whole, is binding, and when not, 185,6. an accord must be performed before it will bar an action lor the debt or injury, 186. payinent for goods wrongfully taken makes the goods tlie wrong- doer's, 22,3. 467. 526 ACT [Index. Account and Account Book; (as to the j-ights, &c. of parties wlien an ac- count is assigned, see Clioses in Action; as to account for work, see Work and Labor.) what is an account b of recognizance, 27 note 4; action of debt may be brought there- 53G BAN [Jude.r. (Bail — cant inued.) on, 27 note 4; in forcible entry and (ic.iitiiicr, Uirm ol'ljuud, and w hen required, 309. 302. for appearance of defendant in civil cases on an adjournnicnt, form of recognizance, 51; for what such bail liable, and when and how sued, 52. by garnishee in attachment, directions for form of their recognizance, " 225 note 4. for appearance of defendant charged with bastardy, form ol' the re- cognizance, 267 note 1. for stay of execution, when and in what cases taken, and form of re- cognizance, 131. 133; the bail in such case may be proceeded against, if in the county, 5; how proceeded against, with forms of process and docket entries, 134 to 137; their remedy against the judgment debtor, 134,5. 138,9; what expenses they may recover from the principal, 331; when such bail may recover from the surety of the judgment debtor, 332. for an appeal, when to be entered, and form of recognizance, 124; in what cases the bail liable, 126; how proceeded against, with forms of process and docket entries, 126 to 129. general remedy of bail on account of their liability, 330 to 332; (See Sureties.) In criminal cases: form of recognizance when case is adjourned over, 484; forfeiture thereof, 485. 489; form of recognizance of the defendant, and the witnesses, on final examination, 487; to keep the peace, when it may be required, 495; form of recognizance, 496 note 3. fees for taking recognizance of bail, 108. Bailee; is the person to whom goods arc hired, 210 note 1 ; (See Hirer of Articles.) Bailment; is the delivery of goods in trust for some specific object, 237. always implied contract that care will be taken of the goods, 237; express contract, or orders, dispense with such implied contract, 237. what is common or ordinary care or diligence, slight diligence, ordi- nary negligence, slight negligence, and gross neglect, 237. deposit to be kept without reward, rights and liabilities of parties in such case, 238 to 240; (See Deposit of Goods.) rights, remedies and liabilities of carriers of goods, 248 to 255; (See Carrier of Goods;) of borrower of goods, 241,2; of hirer of goods, 243 to 245; of pawner and pawnee of goods, 242,3; of carrier of passengers, 255 to 258; (See Stage jifoprietors.) Bailor; is the person who lets goods to hire, 210 note 1. Balance of Account; is the debt, 376; when statute of limitations commen- ces operating on, 359. 364. Banks; (See Bank bills — Bank check — Blank signatures.) stockholders of, incompetent as witnesses for, 60. suits by, and against, must be in corporate name, 264. how they must sue drawers, makers and indorse rs of instruments, ib. their own bills must be received in payment of their judgments, t/!>. cannot delay payment of their bills by counting small coins, ib. of judgment and execution against, on their h'\\]s,ib. rights of depositor of money, and claims of bank on a deposit, 240. effect of loaning at a greater rate of interest than 6 per cent, 264. Index.] BE A 537 Bank Bills; may be levied on and applied to an execution, 147. remedy of party who receives counterfeit bills or bills of a broken bank, 378 note 1. rights of parties when a bank bill has been lost, stolen &c. 420, when half of a bill has been lost by mail, 419. are a legal tender if not objected to at the time of tender, 457. Bank Check; description of, and parties described, 419. at what time it must be presented to make the drawer liable, ib. if the drawer had no reason to expect the check would be paid, it dis- penses with notice to him of its nonpayment, ib. liability of person who transfers a check by delivery merely, ib. if bank refuse to pay, the holder of the check cannot sue it, 420. when the drawer may in such case sue the bank, ib. when lost, stolen, &c. a subsequent bona fide holder is entitled to it against the true owner, ib. who to sustain loss when bank pays a forged &c. check, 420,1. Bans; (Sec Marriage.) Bargain; for sale of property, is complete and binding when the terms arc agreed upon on both sides, 422,3. (See Sales.) the difference between an offer to promise and a promise, 326. Barter: (See Exchange.) Bastards; proceedings against father by mother of, with forms, 265 to 269; suit should be brought in the name of the woman as plaintiff, 268 n. the complaint of the woman to be under oath and reduced to writing, 265; form thereof, ib. note 1. form of warrant against the father, ib. n. 2; to be served and return- ed as a capias, ib. examination of the woman, how conducted 266; form of oath to, ib. n. 1 ; her testimony to be reduced to writing, form thereof, ib. n. 2; not to be examined if incompetent as a witness in other cases, ib. note 1. compromise how to be made, ib.; entry of on docket, 269. if not compromised defendant to be recognized or committed to jail, 267; form of recognizance and mittimus, ib. note 2. when overseers of the poor may proceed against the putative father, 268; form of bond to them, and when taken, 266 note 3. form of docket entries, 268,9. father has no right to the custody of the child, 268. county not liable for fees of the prosecution, 112. prosecuting attorney not bound to attend to such cases, 268 note 1. Battery; civil actions for, cannot be brought before a justice, 8. what amounts to, 493. what is a sufficient excuse or justification for, 493,4. in what cases a justice may fine for, 494,5 note 1. within what time the prosecution must be commenced, 494. form of affidavit, and warrant thereon, 479,80; service of warrant, 482,.3; adjournment of trial, with proceedings thereon, and on the trial, 484. 487; docket entries, 489. Bearer; the word bearer, order, or assigns, necessary in a negoliablc in- strument, 386; when used in other instruments, they do not make them negotiable, 387; if a negotiable instrument is payable to A or bearer, or to bearer without a name, or to a fictitious person, it may be transferred by dfdivery, 391,2; so when indorsed in blank, it is the same as if made payable to bearer, 391. 393. 69 538 B 1 1, [Index. Bearer — continued. holder may sue in his own name on a negotiable instrument indorsed in blank, though he is a mere agent, ;393. of a lost or stolen negotiable instrument, his rights, 416 to 419. Beasts, (Sec An'unals — S/rai/.s.) Behaviour, Surety lor good; when recognizance to keep the peace, tSi:c., may be required, and proceedings in such case, 494 to 498. Betting; wager cannot be recovered, 288. (See Stat, pages 426,7.) Bidder at Sale; may withdraw his bid before article is struck oil', 155. how liable, ib. eilect of combination among bidders to prevent competition, ?,/><. Bill of Costs; (See Fees and Costs;) particular items must be made out and signed by an officer on demand, 111; consequences of neglect in such case, ih. Bill of Exceptions; 98 to 102. Bill of Exchange; what is, and form thereof, 381. 512. when the bill must be tiled with the justice, and indorsed and return- ed by him after judgment, 40; when appeal taken must be liled in court, 125. defendant's signature must be proved, if he files affidavit denying it, 82; form of affidavit, entry on the docket, &c., in such cases, 81,2. bank must sue drawers and indorsers jointly, or pay costs, 264. made by infant, void, 347. interest on, rate of, and when to commence, 351,2. (See Interest.) within what time the suit to be commenced on, 358. (See Limitation of Actions.) parties thereto described, 381,2; may join in one suit different claims against the defendant, 13. general nature of, illustrated, 382 note 1. requisites of, as to date, 385; good, though made on Sunday, ib. to iohom jiaycMe: may be to bearer only, ib.; when to a fictitious person, ib.; when name of payee is blank, ib.; when a mistake is made in the name of the payee, 386. the words ' order,' ' bearer,' or ' assigns,' or ' to the order of,' 386. in what it must be payable, 387. when payable: must be payable at some period, or upon some condi- tion that must happen, 387; if no time mentioned, is payable im- mediately, 388; if made payable after date, but has no date, ib.; time of payment cannot be varied by proof of mistake, or a dif- ferent intention from that expressed in the instrument, ib.; when due if payable certain days after date or on demand, ib.; when due if payable certain time after sight, 403; (See Days of Grace — Time.) the words 'for value received' not necessary, 388. drawer of: is the one who makes or draws the bill, 381; is liable if bill is not paid on due demand of drawee, and he has notice there of, 395; when liable to the drawee, ib.; is liable before bill is due if it is not accepted by drawee, 396; when acceptor liable to him, 397,8. acceptance of, by the drawee: is a promise to pay the bill when due, 396; what amounts to, ib.; may be by promise to accept before or after the bill is drawn, 395,6; conditional or limited acceptance, 396; when drawee refuses to accept, notice thereof to be given to the drawer and indorsers, to render them liable, 397; striking out ac- ceptance by mistake, its efTect, 393. Index.] BiL 539 Bill of Exchange — C07i1inned. presentment for acceptance to the drawee: at what time to be made on bill payable a certain time after sight or at sight, 395. 401 ; conse- quences of neglect or delay in such case, 396; may be made before bill is due, 395. if presented before it is due and acceptance is refused, notice there- of must be given to the drawer and indorsers, to render them lia- ble, 396,7. drawee of : is the one upon whom the bill is drawn, 381; not liable unless he accepts or promised to accept or pay the bill, 397; is cal- led the acceptor after he accepts the bill, 396. acceptor of hill: the drawee is so called after he accepts or promises to pay the bill, 396; is liable the same as the maker of a note, 397; no demand on him necessary unless the bill is payable at sight, or a specified time after sight, ih.; not discharged by a delay of de- mand or notice of non-payment, ib.; is, liable to drawer and other parties, but not for their costs, 398; is liable though the bill be forg- ed, 418; when acceptor liable to an innocent holder of a bill who received it from a thief, &c. ih. who may transfer or indorse, 390,1. how transferred: when by delivery only, and when the bill must be in- dorsed, 393. 395,6; when the payee is a fictitious person, 389; can- not be transferred for only part of the amount due on it, ih. indorsemerxtof: who to make, 390,1. 36; form of, 391,2; form of, by an agent, 392; no particular form for, required, 391. in blank, how made, and its effect, 392,3; may be filled up by the holder so as to make it payable to any one, 393; may be stricken out by the holder of the bill, ih. in full, what, its legal eflect, and the form thereof, ih.. when so made, what will divest the indorsee of his legal title to the bill, .392,3. 418. may be canceled by the holder of the bill, 393. so as to prevent its negotiability, how and by whom made, 393,4; waving demand and notice of nonpayment, how made, 394; with- out recourse on the indorser, form of, ih.; striking it out by mis- take will not discharge the indorser, 393. indorser of: is the person who transfers a bill by indorsement, 382; conditions upon which he is liable, ih.; not liable unless due de- mand is made of drawee, and he has notice of the non-acceptance or non-payment by the drawee, 398,9; only liable to the person to whom lie indorses and to those to whom the bill is afterwards transferred, ib.; may take up the bill by paying it and then su- ing all previous parties, 398; need not in such action produce re- ceipt or reindorscment, 400; when an indorser is paid by an in- dorser, all who indorsed after the party did who is paid, are dis- charged, 399; cannot recover his costs from the other parties, 400; cannot recover from co-indorsers a rateable share of amount paid, ih.; exception to this rule, ih.; who pays and takes up the bill may again negotiate it, ih.; if he pays the bill is entitled to its possession, ti.; always warrants that the bill is not forged, 418: is discharged from liability by the holder delaying to make demand of payment of the drawee or acceptor, 403; is discharged by not receiving due notice of such demand and non-payment, 398. 404. 540 B 1 1' [Index. Bill of Exchange — continued. transferrer of, by mere delivery without indorsement, when liable, 400,1, must have notice of the dciuaiid upon the drawee and non- payment, 409. holder of: is the payee, indorsee, or other party who for the time being owns and holds tlie bill, 382; n)ay sue all the parties at once in separate suits, 399,400; how he should proceed to save his costs, 400. demand of payment of drawee: not necessary to render acceptor of, liable, 397; exception to this rule, ih.; not necessary if the bill has been refused acceptance, 409; is necessary to render drawer and indorse rs liable, 396,7. 404. (See Accommodation Paper.) at what time demand to he made: when bill is payable on demand, or negotiated after it is due, or no time of payment is men- tioned in it, 401; when the time of payment is mentioned in the instrument, 402,3. 407; must be made during the usual business hours, 403. how demand to he made: _i\\G bill should be produced, 404; may be made by any person who has possession of the bill, ih.; when the drawee or acceptor has gone from home, ih.; when he has changed his residence, or absconded, or gone out of the State, ih.; when the bill is expressly made payable at a par- ticular place, ih.; demand of paxjment need not he inade when drawee has no effects of drawer in his hands, 407; exception to this rule, 407,8; (See Ac- commodation Paper;) when party promises to pay who was dis- charged for want of demand, 408; when the drawee or acceptor has absconded, or moved out of the State, or cannot on due inquiry be found, ih.; when the bill is forged or given for a gaming debt, 409. when delay in making demand will be excused, 409. 408. Notice of non-payment or non-acceptance must be given to drawer and indorsers, or they will be discharged, 398. 404; transferrer of bill by pnere delivery without indorsement, is discharged unless he has notice, 409; when it should be given, 406; how it should be given, 405; what the notice should contain, and the form thereof, ib.; to whom and by whom it should be given, 407 ; if notice of non- acceptance has been given no notice of non-payment is necessary, 409; in what cases the notice need not be given, 407,8; (See Ac- commodation paper;) in what cases delay in giving the notice will be excused, 407,8. effect upon liability of parties when bill is negotiated after it is due, 411,12; when demand should be made upon the drawee or accep- tor in such case, 400. 411. blank bill with signatures, how it may be filled up, 389; when good though not filled up according to agreement, ih. if bill payable on demand, when due, 388; when interest commences on, in such case, 351 ; when demand to be made to charge indors- ers in such case, 401. if payable at a particular place, when demand necessary at the place, 386; is necessary at the place, to charge the drawer and indorsers, 387. 404. statute in relation to bail and sureties not applicable to indorser of bills, 416 J exception to this rule, ib. Index.] BOA 54 1 Bill of Exchange — continued. when and what parties discharged by one giving time to, or releasing or discharging another, 414,15. the rights and obligations of the parties, &c., to a bill that is stolen, lost or destroyed. 416. how demand to be made on lost bill or note, 404; rights of innocent holder of such bill, 417,18. {See Bank Check.) rights and liabilities of parties who draw, accept or indorse a bill for the mere accommodation and benefit of another, 414. 408. 400; the principal debtor is in such case liable for the costs, 331. 400. defence to an action on: when suit is by the drawer against the ac- ceptor, 410; or by the payee against the drawer ih.; or by the in- dorsee against /«'y indorser, iZ*. : or by an indorsee against the ac- ceptor, 410 to 412; or by an indorsee against an intermediate in- dorser, ih. or on accommodation paper, 4 1 4. days of grace, what they arc, 402; wdien allowed, 402,3. Bill of Lading, described, 250,1. what damages are generally excepted in bills of lading on Lake Erie and the Ohio river, 251. what proof may be received to alter its terms, &c. 250. what accidents are included in ' perils or dangers of the sea,' 251. Bill of Particulars; what it should contain, 38,9. of the plainliff: when it must be filed, 38; the filing should be noted on the docket, ib.i if not filed he should be nonsuited, 39. evidence by plaintirt' must be confined to his bill, 38; eflect of mistake in, 38,9. of the defendant: when it should be filed, 38; what it should contain, ib.; consequences of not filing, 40; effect of mistake in, 38; what defence he may make besides the matter in his bill, 38. 40. payment of fees of an officer may be refused until particular items are on request made out and signed, 111. Bill of Sale; form of, 512. form of, by way of mortgage, ib. form of, executed by constable on a sale of a leasehold estate, 161. what is an absolute bill of sale, 3 1 8. by debtors to defraud creditors, 318 to 320. Birth ; what evidence may be received to show the time a person was born, 70. Blacks and Mulattoes; when competent and when incompetent as witness- es, 58. if a man is nearer white than mulatto, is deemed white, 58. Blacksmiths; (See Mechanics — Lien.) Blank indorsement; made, not to transfer the instrument, but as surety, how the iiidorser is liable, 325. 327. liability of the assignor of a claim not negotiable, writing his name on it when he delivers it, 213,14. (See also, Blank Signature — Bill of Excliange — Promissory Note — Negotiable Bond.) Blank Signature; delivered to be filled up as a note, bond, or bill of ex- change, is binding, 389. liability of parties when it is filled up differently from the agreement, 389 and note 1. (See Blank Indorsement — Bill of Exchange — Promissory Note — Negotiable Bond.) Boats; (Sec Canal Boats — Vessels — Drifts — Carrie?' of Goods.) 542 B o R [Index. Boats on Canal, (Sec Carrier of Goods'^— Drifts;) master 6ic. liable for all damages to goods arising from a violation of the legislative reg- ulations relating to the canal, 258. who responsible for damages arising from collision of boats, 258,9. Bond, (See also Recognizance — Bail — Sureties;) and as to common ne- gotiable bond for the payment of money, (Sec Negotiable Bond;) when balance due on, is less than $100, though penalty more, may be sued on before a justice, 6. 384 note 2; the action should be debt, and not covenant, 11. conditioned for the payment of money must, when sued on, be filed with the justice and indorsed by him, and on appeal filed with the clerk, 40.' 125. nature and effect of penalty in, and what part of it may be recovered, 384 note 2. of the proof of the execution of, on the trial, and when required, 81 to 84. docket entries in suit on, 119,20. cannot be taken on execution as goods and chattels, 148; may be taken on an attachment, 219. a partner cannot bind the firm by a sealed instrument, 372 j exception to this rule, ih. executed by infant is void, 347. belonging to the wife before the marriage, to whom it goes on her decease, 337. 344; or on the decease of the husband, zi. owing by the wife before the marriage, how to sue thereon after the marriage, 344; or after decease of the husband, 345; or after the decease of the wife, ih. rights and obligations of parties, and the assignor and assignee, when a bond not negotiable is transferred, 210 to 216. 409. (See Assign- ment of Claims not Negotiahle.) form of a common negotiable bojid for the payment of money, 384. (See Negotiable Bond.) form of common bond with a condition, 510. form of official bond of a justice of the peace, 4 note 3 ; what is a breach of its conditions for which his sureties are liable, 165; can- not be sued before a justice, iZ>. form of official bond of a constable, 269 note 1 ; how sued and pro- ceedings thereon, 275 to 277. form of, to indemnify the constable for redelivery of property taken on execution, 151 note 4; so, for the redelivery of property taken on attachment, 233; so, for selling goods on execution which have been ordered to be restored, 175 note 3; so, by the claimant of goods to the debtor in attachment on an appeal, and how prosecuted, 223 note 2. 224 note 1 : so, by f^itiier of a bastard to the overseers of the poor, 266 note 3: so, for costs in an action of forcible entry and detainer, 309,10: (for other cases in regard to costs, see Bail:) so, by taker of stray, 448 note 1; so, by purchaser of stray, 451 note 2. Book Account, (See Account and Account Book:) the book cannot be taken on execution, 147. Borrower of Goods: his rights, remedies, and liabilities, 241,2. when the rights of the lender must appear by writing and be record- ed, 245. Index,'] CAR 543 Breach of the Peace: when prosecution to be commenced for provoking or attempting to provoke another to a breach of the peace and pro- ceedings in such case, 494. proceedings requiring a person to enter into a recognizance to keep the peace^ 495. Breaking open Doors : when it may be done to serve a capias in a civil suit, 35. to seize goods on an execution, 148,9. to take the body on an execution, 167. to take a person accused of crime, and without a warrant, 479. to take a person on a common State warrant, 482,3. to execute a search warrant, 482. Bribery: promise to give money or property as a bribe is void, 289: mo- ney or property delivered as a bribe cannot be recovered back, ii. promise to pay an officer for neglecting to perform his duty is void, 288. Broker: who buys notes, &c. at discount, and without indorsement, cannot sue the transferree, 400: but such transfer warrants the instrument not to be a forgery, 418: indorser only liable for the amount he received, 412 note 1. 410. Buildings, Contract for: form of, 514 to 517: rights and liabilities of the parties when contract is changed, partly performed, or not per- formed according to agreement, 472 to 474. Burden of Proof: (See Evidence.) Burning, Threats of: proceedings requiring the accused to enter into re- cognizance to keep the peace, 495 to 499. Butchers: by a sale for domestic use, impliedly warrant the meat to be sound and fit for use, 437. By-Laws: (see Towns.) Calendar Months : when months mentioned in a statute, contract, note, &c. are considered lunar, and when calendar months, 157 n. 12. 403. Canal: (see Stat. 174 to 200.) Canal Boats: (see Boats on Canals: Stat. 174 to 200.) Capias ad respondendum: (as to execution for goods and body, see Execu- tion:) what it is, 25. in what cases it may in general be issued instead of a summons, 27 to 30. may issue instead of a scire facias on certain transcripts, 179: but an affidavit is required in such case by statute, 27. requisites" and common form of, 33. when, liow and where it may be served, and what doors may be bro- ken open to make the service, 34 to 36. how to proceed when the defendant is privileged from arrest, 167. irregularity in issuing, does not excuse a .service of it, 34. must not h(i served if defendant is sued by a wrong name, or if the justice has no jurisdiction, ib. what the constable may do with the defendant after the arrest, 36. escapes from, after the arrest, 36,7. (see Escape — Rescue.) form of returns to, 37. fees for issuing, service and return, 107,8,9. Caption of a deposition: form thereof, 90. Carpenter: (see Mer.ha.nics — Building. Contract for.) 544 c K R [Index. Carrier of Goods, (Sec Warehoti^ejnen:) who arc tlcenicd common carriers and who are not, 248. liability of a private carrier for injury or loss of goods, ib. who are deemed partners, 249. there need be no express agreement for freight, 248. are responsible for the acts of their agents and servants, 249. does not iwrform his duty by transferring the goods to another car- rier to convey, 253. their duties generally, and what expenses they must incur to preserve the goods,' 249. 251. what care they must take of damaged goods, to prevent further dam- age, 251. are liable for all losses and injuries that do not arise from the act of God, and public enemies, 250: what arc decnicd the acts of God, and who are public enemies, t&. who to bear loss of goods where the boat is run on a snag or rock, a shallow, the shore, or into collision with another boat, or the goods are thrown overboard, 251. consequence of deviating from the usual course of navigation, iJ. when his risk commences and terminates, 25), 2. (See Warehouse- men.) consequences of his delivering the goods to the wrong person, 253. effect of notice by him that he will not be liable for injury or loss to the goods, and on whom binding, 253,4. how his lien for freight may be destroyed, 254. whether the owner may set off against the amount of freight the dam- ages arising from delay of, or injury to the goods, iZ'. note 1. how the value of lost goods to be estimated, 255. cannot affect the owner's right to goods by an unauthorized sale, 425. what is a bill of lading, and the construction the reof,^ 250,1. Carriers of Travelers: (see Stage Proprietors and Drivers.) Case, action of trespass on the: in what case it may be brought, 9,10. within what time it must be brought, 358,9. (see Limitation of Actions.) Cattle: (see Strays — Animals.) Cause of Action : cannot sue on a promise or contract until the promise or contract is broken, 360 note 2. (see Frauds.) what causes of action may be joined in one suit, 13,14. one entire cause of action cannot be divided, 104,5. consequences of bringing separate suits in such cases, ih. Cellar: contract for digging and for mason work of, 515,16,17. Cents: are not a legal tender, 457. Certificate: of the official oath of justice, form of, and when and to whom it must be transmitted, 3 note 2. form of, to authenticate a transcript from a docket, 180. effect thereof as an instrument of evidence, 79. effect of, to copies of deeds, records, &c. as instruments of evidence, 79,80. form of acknowledgment to a deed, tfcc. 191. of oath to establish an account against an eslate, 193 note 2. of a marriage, when to be made out and the form thereof, 363 n. 1 : must he delivered to the clerk of the court of common pleas, under a penalty, 263. form of, and when necessary to au«hent'cn*o .i deposition, 91 to 93. Inde^J] CLE 545 Certificate — conLinimL that one or moi-e co-deleaclaiits are sureties, when to be entered on the docket and form thereof, 105,6. (see Executions,) Certiorari; what, by whom and when issued, generally, 129. when issued on a trial of right of property taken on an attachment, 223, when issued in attachment generally, 229. when issued in forcible entry and detainer, 307. form of certificate to authenticate the transcript returned with the certiorari, 179. form of the return upon the writ of certiorari, and how executed, 130. Challenge, (see Jury.) Challenge to Fight; when prosecution to be commenced, 495; proceedings in such cases, 494,5. Character of Witness; when, how, and by whom may be impeached 64,5! Chattels, (see Execution — -Sales.) Cheating, (see Frauds.) Check on Banks, (see Bank Checks.) Children, (see Parent and Child — Infants — Guardian aivi ward — Appren- tice and apprenticeship — Bastards.) Choses in Action; all claims except negotiable bonds, bills of exchange^ and promissory notes, are in general called choses in action, 210,11. (In relation to the assignment of a chose in action, see Assignment of Claims not Negotiable.) Christian Name, (see Name.) Cider Mill, erected by a tenant for himself, may be levied on as his goods, 147; when so erected may be removed by the tenant, ib. cannot generally be sold on execution against owner of the land, ib. Circumstantial evidence, what is, 67* Citation, (see Summons.) Claimant; Of property taken on execution by a constable — may sue in tres- pass, or claim and have a trial under the statute, 173. when and how a notice of claim to be given, with a form, ih. n. 1. who to pay the costs of the trial, 174. what parties may be witnesses on the trial, ib. form of docket entry and judgment, 175,6. form of order for the restoration of the property, 174, n. 2. effect of the judgment on the rights of the claimant and liabilities of the constable, ib.; no appeal allowed, t6. constable may sell the goods though ordered to restore them, 175; form of bond in such case to indemnify the officer, ib. n. 3. Of property taken on execution by the sheriff; how to proceed, with forms of process and docket entries, 468 to 470. wIk) may be witnesses on such trial, 174. Of property taken on attachment; (see Attachment against DebtorSj claimant of properly taken.) Clearing land; by a purchaser before he pays for the land, under what cir- cumstances he may do it, 464. Clerk of Courts; privileged from arrest for debts, &c. and when, 29. Clerk of Election; form of oath to, 300. Clerk of General Assembly; privileged from arrest for debt, 6cc. and when, 29; penalty for arresting, ib. justice who issues writ against, for a crime, must give notice to the General Assembly, ib. 70 546 eoK - [Li Jew. Clerk of Townsliip; his duty I'li relation to the oflicial ton J of ii justice, 4; as to the ollicial bond of constable, 269. must give notice, and how, of expiration of the term of office or resig- nation of a justice, 2, his duty when a judgment is recovered against the township, 138 note 1. his duty and fees for recording indentures of apprenticeship, 197 n. 1. Codicil; form of, o20. Cognovit, (see Warrant, of Attorney.) Coin; which is a legal tender, 456,7. Commencement of Actions; cannot bo brought before breach of contract or injury is done, 360, note 2. may bo without process, 25; form of docket entry in such case, ib. note 2. how commenced against a householder or freeholder of another township or county, 25 to 27. wlien a summons and when a capias, the first process, 27,8. Commission; justice must transmit to township clerk the date of his con> mission, and when, 4. proof that a person acts in an office is sufficient without the produc- tion of his commission, 68. Commission Merchant, (see Agents and Servants.) Commitment, (sec Mittimus.) Common Carrier; who is so called, 248. (sec Carrier nf Goods.) Common Informer, (see Penalties.) Comparison of Handwriting; witness who only knows handwriting by comparison merely, is not a competent witness to j)rove such hand- writing, 84. Compensation, (see Damages — Strays — Work and Labor, S^c.) cannot be allowed to a Constable or other officer, for doing what the law directs, where the law is silent as to fees, 272. (see Fees and Costs.) Competency of Witnesses. (See Witnesses.) Complaint; in forcible entry and detainer, when to be filed with the justice, 302; form of such complaints, 308,9. in criminal cases, must be by affidavit, 480. (See Affidavit.) against a master for abusing his appi'entice, by whom it may be made, 197; proceedings in such cases, with the forms, 198,9. against an apprentice for misconduct, how made, with the mode of proceeding, 199,200. Composition with Creditors; when valid, 186. Compound Interest; when it may be allowed, 354. Com[)Ounding Felonies. (See Illegal Consideration.) Compromise. (See Accord and Satisfaction.) Compulsion; what force and restraint exercised when a contract is entered into will render the contract void, 284,5. Computation of Interest. (See Interest^) Computation of Time; how computed when days, months, or years, are mentioned in a statute, promissory note, or other contract, 157 note 12. when note, or other contract, is payable a limited time after date, 388. 403,4. Concealment. (See Frauds.) Condition. (See Performance — Bond.) [/rtdcx. u o N 547 Conditional Promise; what it is 213 note 1, Confessions and Admissions; (See Admissions and conjcssions.) Confession of Judgment; may be for ^200. before a Justice, G; the $200 may be recovered by execution, with the accruing interest and costs, 6" note 1. form thereof, 1 2 1 ,2. no api>cal lies therefrom, 123. form of warrant of attorney to confess, 508; if such v.arrant is made while in custody, how to be executed, 286. Congress, Members of; privileged from arrest -for debt, &c. and when, 28. Consent; by parties, v.'ill not give justice jurisdiction where the law gives him none, 8. (Sec Admissions and confessions — Adjournment — ConfcssiGn of judgment.) Conservators of the Peace; the duty of justices and constables, as such, 477,8; their duty and power to suppress mobs, 497, note. Consideration; is the price or motive of a promise or contract, 285. contract or promise not binding unless founded on a sufficient con- sideration, ib. when acceptance of part of a debt in discharge of the whole will so ojx? rate, and when not, 185.6. a party may show a want or failure of consideration for the contract or promise which is set up against him, 286; what is meant by a want or failure of consideration, 286,7; the statute upon this sub- ject explained, 286; it will not relieve from a bad bargain, ih. the actual value of the consideration immaterial if there was no fraud, ib. (See Frauds.) consideration sufficient if it benefit the defendant or a stranger, 287; or is an inconvenience or detriment to the plaintiff without benefit to the defendant, ib. a promise in consideration of a promise on the other side, is bind- ing, 287. when a promise in consideration of something already done and pas- sed is void, and when not, 287. 325,6. when a promise to do a thing which the party was not Jjound in law to do is binding, and when not, 287,8. (See Mistake.) when the consideration is to do an imjyossible thing, llie promise founded on it is void, 291 ; but not so when the thing is merely dif- ficult to be done, 290,1. for a promise to answer for the debt, default, or miscarriage of ano- ther, when sufficient, 325,6; whether the consideration must in such case appear in the written agreement, 327,8. the words '-for value received,"' immaterial in a negotiable instru- ment, or in an indorsement thereof, 388. what parties to a negotiable instrument may set up a want or failure of consideration, 410. (See Promissory note — Negotiable bond — Bilt of exchange.) when there is a partial failure of consideration, it will reduce the amount of the recovery accordingly, 411 nolo 1, 412 note 1. (See Warranty — Work and labor — Fraud.) illegal consideration makes the promise founded on it void, 288,9; what is an illegal consideration, 288,9; if it has been paid, it cannot be recovered back, 289; effect of part of the considerati(jii being illegal, and part good, ib. ^'fS CON [Index, Constable, (as to his duties in the service and return of process, see the various heads, in the index, ot^ Stt?nmons — Capias ad respondendum — ExccHlion — Scire facias — Venire — Millifims — Warrant, ^c. when elected, and tenn,2G9. substance ot" his odicial oath, ih. requisites of his ofhcial bond, and Iho forin and amount thereof, zJ. not(> 1: it must be approved I)V the trustees of the township and fdc-d ih. is the ministerial officer of justice's court. 271, may amend his return to writs, 41. bound to keep the peace, and a|)prehond felons within his county, 271. has a right to go on the land of another to execute process, 404: but if he abuse the license he will be a trespasser, 464. Avhen he may arrest a person on sus})icion, 6cc. without warrant, 478,9. his liability for delay and escapes in executing crinihial process, 483. must notify township officers of their election, 271. his duties in relation to township meetings and township elections, 271 : his compensation allowed by the trustees in these cases, 272. liable to fine for bidding at a sale by him on an execution, 155: so, for neglecting to serve the venire of a coroner, 296. may sue person who takes or injuries goods levied on, and in his pos- session, 151. a promise to pay him for neglecting to perform his duty is void, 288. when contract to indemnify him for an illegal act, void and when not, 171. in what cases he and his sureties arc liable to a suit before a justice for his official misconduct, 272. 275: are liable if he fails to make return to writ, 273: in what this consists, 272: are liable if he makes a false return to a writ, 273 : what is a false return, 272. 158 : are liable if he fails to pay over money collected officially, 273: to whom and when he should pay over money collected officially, 164. forms of process, and how executed, and forms of docket entries, in suits against him and his sureties, for his official misconduct, 273 to 277 : extent of the liability of the sureties in such case, 273. 275; amount of damages which may be recovered in these proceedings, 272,3: in what cases no stay of execution is allowed on a judgment against t^ constable, 131. when a justice may appoint a constable, the form thereof, and the powers and liabilities of such a constable, 271. items of fees of, generally, 108,9: for keeping live stock taken on execution, 153: in proceedings in attachment, 229: in proceedings relating to strays, 450,1 : for notifying township election, and town- ship officei-s of their election, 272. how his fees may be recovered in civil cases, 110,11 : how obtained in criminal cases, 1 12. not entitled to fees for removing goods taken on execution, 153; nor for doing any other official act which the hxw directs, and when the law is silent as to fees, 272. Constructive notice: what it is, 369 note 3. Contempt: how and in what case justice may punish for disturbances and contempts, while he is trying the cause, 278: form of proceedings, process, and docket entries in such case, 279,80. Index.] CON 549 Continuance. (See Adjourmnent.) Contract. (See Joint promise or conti'iict — Assignment of claims not nego- tiable — Tender — Parties to actions.) forms of, 513 to 518. upon which judgment is rendered by justice, must be filed, indorsed, and retained by him in certain cases, 40; or if an appeal is taken, must be filed in court, and when, 125. the word Contract includes all promises, express, implied, verbal, written, or under seal, 281. parol agreement, what, ih. note 1. when it is said to be express, implied, executed, or executory, 281,2, who has sufficient understanding to make a contract, 284. what threats or restraints, inducing a promise or contract, will make it void, 285. what is a sufficient consideration for a contract, 285 to 288. (See Consideration.) what is a failure of consideration, 285 to 287. (See Consideration — Work and Labor — Damages — Fraud — Warrant i/.) what is an illegal consideration, and the efiect thereof, 288 to 290. (See Consideration.) consideration impossible to be performed renders the promise found- ed on it void, 291 ; but not if it is merely difficult to perform, 290,1. valid though made and dated on Sunday, 385. by the wife, when binding on the husband, 340. 72,3. (See Husband and Wife.) of infants, when good and when void or voidable, 346 to 349. (See Infants.) by one partner, when it binds the firm and when not, 369. (See Partners and Partnership.) when to answer for the debt, default or miscarriage of another, must be in writing, 321 to 324. (See Sureties.) so, when not to be performed within one year, 292, effect of fraudulent erasure or alteration of, 291,416. performance of; must be according to the intention of the parties, 290; at what hour of the day, 427,8; when contract is for the sale of property, 425,G; when two acts are to be done by each party at the same time, 429; when one party is to perform upon the per- formance by the other, ib; when time for performance is enlarged, 456 ; offer to perform, or prevention of performance, equivalent to performance, 429. (See Tender.) part performance of; rights of parties in such case 428,9. 471 to 474. (See Work and Lal>or — Mechanics — Sales — Tender — Money.) evidence relating to; cannot prove contents of written contract by witnesses, but must produce it, 78; unless it is lost, ib; or the op- posite party has it, and has had notice to produce it, ib. (See Evidence;) how the execution of a written contract must be proved, 83,4; when it need not be proved, 81,2. (See Evidence;) defects, omissions, or mistakes, in a written instrument, cannot be corrected or supplied by verbal evidence, 84. 327. 513 note 2; exceptions to this rule, 17.84,5. when an account or other claim is satisfied by taking a sealed instru- ment, or by a jurlgment, or an award, 185 note 1, 288. when a written contract is binding, though contrary to the intention cf the parties, 84 to 86. i>50 COR lliulex. Contract — continued. when a verbal contract can be set iii» so as to change or alter, revoko or discharge the written one, and when not, 84 to 8G. 513 n. 2. if made by two or more, when it is considered Joint and several, or joint only, and how to sue thereon, 15. 19. (.See Farfies to Actions.) suit on contract for real estate cannot be brought before a justice, 7. when money paid on, may be recovered back, 202,3,4. (See ill/' .s7crA-e — Monc}! — Paijmcnt.) when and wlio may i)ut an end to or rescind the contract, and how done, 435. 428; so on account of fraud, 4"27. 436, 440; rights of the parties thereafter in such case, 428. within what lime an acticm on, must be commenced, 363. (See Lim- itation of Actions.) when contract is entire, but one suit can be brought on it, 104. Contribution; joint trespassers or ^\■rong doers, cannot recover from each other any portion of money paid for the injury, 23. when sureties may recover from each other where one has paid more than his projjortion of thedcbt of the princijjal, a.nd when not, 331,2; when sureties liable to each other for the costs of suit against them, 3;52. 400. when there is a division of loss among indorscrs of negotiable instru- ments, and when not, 400. Conversion of property; what amounts to, and when suit therefor may be brought, 12; damages in such suit, ?Z(. 356. Conveyance, (See Wills.) general requisites of instruments affecting real estate, 50 1 to 503. form of a deed of general warranty, 504; what is a breach of the covenants therein, 504,5, notes. form of a release or deed of quit claim, 505. form of a mortgage, 506; of a lease, ift. form of acknowledgement of conveyances, &c., 191. form of bill of sale, and sale by way of mortgage, 512. when fraudulent and void, as against creditors, 318 to 320. Convicts of Penitentiary; what crimes render them incompetent as wit- nesses, 58; not bound to confess their own guilt unless they choose 65; pardon renders them competent, 58. Co-obligor. (Sec Joint Promises end Contracts.) Co-partner. (See Partners and Partncrsliij).) Copy of Instruments; upon proof of the loss and execution of the original, the copy may be received in evidence, 78: and when no copy, the contents may be proved by v.'itncsscs, ib. by whom the loss of, and search for the original may be proved, ib. copies of deeds, &c. certified by county lecorder, may be received without the production of the original or proof of its execution, 79. 81; so copies of records of a public nature duly certified, arc evidence, 79,80; so copies of such records compared by a witness with the original, are evidence, 79; how such records should bo certified, and what proof is required of the official character of the officer, 79,80. Coroner; privileged from arrest for debt, &c., and when, 29. inguest of; when it may be holden b)' a justice, 293; when warrant to issue for a jury, and the command and form thei'eof, ib.; form of return to the warrant, ib. n. 1 ; empanneliog and swearing jury, Index.] cur 551 Coroner — continued, and witnesses, 294; the testimuny must be reduced to writing, and by whom to be signed, with form thereof, 294 ; of what the coroner and jury shall inquire, 295; nature and form of verdict of the jury, ib.; when recognizance of witnesses taken, and the form thereof, ib.; when witnesses may be committed to jail, 296; when the slayer of the deceased may be arrested, &c. ib.; what papers must be made out and returned to the court, with form of memorandum of pro- ceedings, i&.,- n. 1; penalties against coroner, constable, and jury, for neglect of duty, ib.; fees of coroner and jury, ib.; fees of con- stable, 108,9. Corporations; (See Banks— Township — School Districts;) should sue and be sued in corporate name, 17. cannot issue a capias against, 30. how a summons is served upon them, 32. members of private corporations, such as banks, &c. cannot be wit- nesses for the corporation, 60. but members of a public corporation may be witnesses, 60. stock in, cannot be levied upon by execution, 148. Correction of Children, &c.; apprentice, child, and scholar, may be reason- ably whipped, 493. Costs. (See Fees and Costs.) Co-surety. (See Contribution — Joint Promise and Contract — Sureties.) Counsel. (See Attorney at Late.) Counterfeit Check. (Sec Bank Check.) Counterfeit Money; payment of, will not discharge a debt, 377 note 1. (See Bill of Exchange — Promissory Note — Negoliahh Bond.) Court; (See Judge;) when and how a person may be punished for noise or contempt, 278; forujs for proceedings in such cases, 280,1. Covenant; (Sec Coniracts—Adions ;) what is a breach of the covenants in a deed of warranty, 504,5, notes. Covenantee; who is so called, 210 note 1. Covenantor; who is so called, ih. note 1. Cows; (See Animals — Strays.) Credibility of Witness; ditfercncc between the competency and credibility of a witness. 57. if witness is not competent he must be sworn and examined, 57. how the credibility of a witness may be impeached, 64,5. (See Wit- ness.) Credit, Letter of; a proposition to guaranty, not sufficient, 326. what is a sufficient letter of credit to bind the writer, 326,7; the du- ties of the person to whom it is addressed to render the writer re- sponsible, 327. Criers of Courts; privileged from arrest for debt &c. and when, 29. Crimes and misdemeanors; jurisdiction of justice, 477,8; jurisdiction when offence is against the laws of a sister State or Territory, 487. (See Assault and Battery — Fighting Rccogni-rance—C/iallenging to Fight — Penalties.) arrests for without warrant, when proper, 478.9. affidavit whereon to issue a State warrant, 479,80. forms of warrants, 480,1 ; service and return thereof, 482 to 484. adjournment of trial, with forms in such cases, 484,5. form of subpaina for witness, 484. of the trial and examination, 484,6. 552 DAY [Index. Ci-imes and Misdemeanors — continued. amount of the recognizance, and form thereof, and of the mittimus, 48G to 488. recognizance of witnesses, 488. docket entries and transcripts, 489. Crops; who is entitled to, and must sue for injury done to, hefore or after the decease of the owner, 18. on kind of wile, to whom they go on the decease of the hushand or the wife, 336. sown by tenant which ripen after the lease expires, to whom they go, 466 note 2. who must sue for injury to, when the land i.s leased or worked on shares, 466. who entitled to when the tenant who works tlu; land on shares aban- dons his contract, 474. may be levied upon by execution as goods and sold, though unripe, 146; in such case the purchaser has a right to enter and gather it, ib. when taken on execution or attachment, must be sold subject to the claim of the landlord or tenant, 156. Cross Examination of Witnesses; how to be conducted, 63,4. Currency; when mentioned in a contract it relates to the currency of the place where the contract is payable, 457. what kind of money is a legal tender, 456,7. Custody. (See Arrest — Escape.) Damages; amount of, for keeping or converting property by a wrongdoer, 356. 12. amount which may be recovered for an escape, 36. 170. 172; or for a false return, &c. 272,3. how value of goods lost or injured by a carrier is to be estimated, 255. in suit on bond with a penalty, what amount can be recovered, 384, note 1. amount which buyer of property can recover from seller when the latter neglects or refuses to deliver the property, 431 ; or when the seller has tendered the property, and is sued for its non-delivery, 430,1.460,1. (See Tender.) for fraud in the quality of things sold, 435. 441. for false warranty of things sotd, 338,9. 433. effect of tender of damages before suit brought, 455,6. 461. (See Tender.) when landlord forcibly turns out his tenant after the lease has ex- pired, 466. when suit is brought for amount found by fence viewers, 467. when the defendant has trespassed upon land and at the same time taken or injured personal property, ib. how damages may be reduced in suit for price of property sold, '132, 440; in suit for performance of work, 474. Date; not necessary to a note, bond, bill of exchange or other contract, 385; effect of not being dated, or liaving an impossible date, ib. contract &c good, though made and dated on Sunday, ib. instrument takes eiTcct from its delivery and not from date, 86. (See Compu/afioii of Time.) Day Book. (See Account and Account Book.) Index.] bfep 553 Days; when mentioned in a statute, note, contract, &;c. how computed, 157 note 12. Days of Grace; what they are, &c. 403. Deaf and Dumb; how examined as witnesses, 58. Death. (See Decease.) Debt, Action of, (See Penalties;) when it may be brought, 1 1 ; within what time it must be brought, 358. (See Limitation of Actions.) Debtor, Absconding. (See Attachment — Absconding Debtor.) Decease; of principal, destroys power of agent, 21. when one or more joint promissors or promissees, or joint owners of property, die, how to sue and be sued, 16. 19,20. who must sue when the person against whom an injury was commit- ted has died, 18. who must be sued when the person who committed the injury has died, 23. effect of the decease of a party while suit is pending, or after a judg- ment, or after a levy, 24. 154. effect of the death of the defendant upon the liability of the surety for the stay of execution, 134. effect of the decease of the husband or the wife upon the rights of the husband to her property, 336 to 338. effect of his decease upon his liability for debts due or injuries done by the wife before the marriage, 338. effect of the decease of a partner upon the rights and powers of the surviving partners, 372. a person is presumed to be dead when no account has been heard for seven years, 68; and see note (e) on same page, when and how what a deceased witness said on a former trial nnay be proved, 69. the decease of a person may be proved by hearsay, ib. Deceit. (See Falsehood — Frauds.) Decision of Cause; how the testimony to be considered by justice, 102. Deed; justice may take acknowledgment of, while he is in his county, 5. form of certificate of acknowledgment, 191; fee for taking acknow- ledgment, 108. all contracts under seal are called deeds, 281. certified copy of deeds, &:c. from recorder's office may be received in evidence, 79; in such case the execution of the original need not be proved, 81. of sheriff, how to be executed, what it conveys, and when void, 304. conveying lands to husband and wife, what estate each has, 336. by husband alone, of his wife's land, what estate it will convey, ib. general requisites of instruments affecting real estate, 412,13. form of a general warranty deed, 504; of a release or deed of quit claim, 505; a mortgage, 506. Default; how to proceed wlicn one or both parties fail to appear on the day of trial when suit is commenced by summons, 45,6. how defendant may have judgment by deficit set aside and new trial, 45, ' «^ how to proceed when defendant is sued by capias and fails to ajjpear according to his recognizance, 51,2; in criminal cases, when defen- dant fails to appear on the adjourned (Ifiy of trial, and how default is entered, 485,6,7. Defence of possession. (See Assault and Battery — Trespass to Land.) 71 654 DOC [Index. Delivery; written contraet or dectl takes cflect from the time the instru- ment is delivered, and not from its date, 85. in -what cases the ownership of goods passes without delivery, and when not, 422. 425. Demand; at what time in the day demand should be made, 404. 427. 330. when neeessary where suit is brought for wrongfully keeping, using or converting property, 12. when necessary before suit, on a contract of sale, 426. (See Sales.} if note is payable on, when due, 388; statute of limitations does not run on until demand, 359; interest not chargeable on until demand, . 351. what di;lay in making demand upon the rk'btor will discharge the as- signor of a claim not negotiable from liability to the assignee, 214. S28. (See Assignment of Claims not Negotiable.) when and how demand should be made upon negotiable instruments, 402,3,4. (See rromissory Note — Bill of Exchange — Negotiable Bond.) Deposit; by taker up of stray, when to be made, and amount, 447. as security for costs, when it may be made, 27. of the amoimt of a tender, to whom it belongs, 458 to 460. of money in bank, rights of bank and depositor, 240. of goods, to be kept without reward — the rights and liabilities of the parties in such case, 238 to 240. Depositions; of what witnesses, may be read in evidence, and by and be- fore whom they may be taken, 87. form of notice of taking, ib.; when, how and by whom this notice must be served, 88. how attendance of witnesses may be enforced, and forms of subpoena for, 88,9; form of oath to witnesses, 89; refusal of witnesses to an- swer questions, and how punished, ib. form of deposition and of the certiiicate of the justice 90,1 ; when and what certificate is necessary besides that of the justice, 91,2. what defects and omissions will prevent a deposition from being read in .evidence, 92,3. when taken in one suit cannot be used in another, 104. fees relating to the taking of depositions, 108. when a cause is appealed, they must be sent to clerk, and when, 125. form of depositions taken at coroner's inquest, and how signed, 294; must be transmitted to the court of common pleas, 296. when taken to contest an election, and notice thereof, 297; form of the notice in such case, ib. n. 1 ; form of the depositions, 298; what they should contain, and how and to whom transmitted, ib. Detainer. (See Forcible Entry and Detainer.) Deviation from a Voyage; effect of, on liability of a carrier of goods, 251. Devise; forms of, 619 to 522. (See Wills.) Discharge; (See Release — Receipt;) an accused person brought up, exam- ined and dischai-gcd by a justice, rn^ay be again taken for the same offence, 486 n. 2. Discontinuance; what it is, 46; fees for, when jjarty settles suit, &c. 108. Disturbance; of justice, when trying cause, how punished, 278; form of docket entry in such case, 279,80. Divorce; when from bed and board only, its effect on liability of the hus- band, 339. Docket. (As to forms of docket entries, see Entries on the Docket.) how it should be kept, 114. Index.] ELK 555 Docket— contimied. what matters should be entered on, in the progress of a cause, 11 5, 16. may correct clerical errors or omissions, 116. need not state what a party urged, or what testimony overruled, 130. will be received in evidence where a transcript would, 177. should not be taken from office, ih. form of certificate to authenticate transcript from, 179. suits upon certified transcripts from, how conducted, 178 to 1€0> how to obtain the docket of a justice who has removed from the coun* ty, 178. _ . _ what to be done with the docket if the office should become vacant, and how to proceed thereon, 178 to 180. book to enter appraisement of strays, to be kept by justice, 4'54; to whom stray book to be delivered when term of office expires, ib. Dogs; when the owner is liable for injuries done by, and when a person is justified in killing, 10. Doors; when they may be broken open to serve a capias in a civil suit, 35; to seize goods on an execution, 148; to take the body on an execution, 197; to take a person accused of crime, and without a warrant, 479; to take a person on a common State warranty 482,3; to execute a search warrant, 482. Doorkeepers of the General Assembly; privileged from arrest for debt, &c. 'and when, 29. 139. penalty for arresting, 29. justice must give notice to General Assembly of the issuing of criminal process against, 29. Dormant Partner; is a secret partner of a firm, 368 note 2. is liable for the debts of the firm, ib. he need not be joined in an action by or against the firm, 374. Drawer and Drawee of a Bill of Exchange; what parties are so called, 381. (See Bill of Exchange.) Draymen; are liable for loss or injury to goods as common carriers, 248. (See Carrier of Goods.) Drifts; right of taker up of boat, raft, &c. gone or going adrift, and pro- ceedings in such cases, 452,3. [As to entering upon the land of another to remove drift wood, see Stat. 604,5. Driver of Stages; proprietors of stages are liable for accidents which arise from driver not being skillful, careful, or acquainted with the road, &c. 255,6. (See Stage proprietors; and see Stat. p. 865,6. Drunkenness; when defendant may avoid his contract on account of his being drunk when he made it, 284 note 2. Duress. (Sec Restraint.) Dwelling house. (See Breaking oj)en doors — Building, contract for.) Dyers. (Sec Mechanics — Lien.) Easement. (See Highways.) EE; when used at the termination of a word designating the parties to a transaction, it has a passive signification, as grant-ec, &c. 210, note 1. Ejectment; action of, cannot be brought before a justice, 8. Election; of justices, how conducted, 2. how contested, 2,3. when justice m;iy preside at trial of contested olfaction, 3. 556 ENT [Index. Election — coyit imied. may be had before a vacancy, 2. constable to give notice of township election, wlien and how, 271. contest ing of an; qontestor must be a voter of county, 297. how to give notice thereof, and how, when and where served, 297 j form of the notice, ib. who to take testimony, ib. substance of subpama for witness, 298 note 1. form of deposition, ib.; to whom to be sent, and when and how, ib. opening and certifying returns, when, how, and by whom done, 299. form of oath to judges and clerks of, ib. Emblements. (See Crops.) Endorsement. (See Assignment of claims not ncgotiab/e — Bi/I of exchange — Promissory note — Negotinb/c bond.) Entries on the Docket, forms of; [As to general directions how a docket should be kept, see Docket.^ when the suit is an amicable one, ami without process, 25. when suit is brought on an account, 117; on a note, and a capias is- sues, 118; on a bond, 119. when judgment is confessed, 121,2. defendant lails to appear and a trial is had, 1 17. when a set ofT is allowed, 106. 120. when summons is served by copy lel't at dwelling house, 120. jury trial, 122. 100. 101. ■when judgment is set aside and a new trial had, 1 17. nonsuit, 102. 118. judgment on the merits for the plaintilF, 105. judgment on the merits for the defendant, 106. 118. judgment on a discontinuance, 103. judgment for a fme or penalty, 56. 66. suit by administrators or executors, 115 note 1. suit against administrators or executors, 1 19 to 121. when an executor or administrator appeals, 124. suit by partners, 1 18. suit against surviving partners, &c. 1 18. 374 note 1. suit by and against school district, 17. 20. suit by or against a township, ib. suit by or against other corporations, ib. suit by and against infant, 349. suit on a penal statute, 491. proceedings against a witness on an attachment, for not obeying sub- poena, 54; for refusing to testify, 66. when defendant is sued by a wrong name, and appears to the action, 44 note 10. the defendant denying by affidavit, his signature to a note, &c. 82,3. the defendant entering into a recognizance on an adjournment, 119. suit by scire facias on a recognizance of appeal, 128; on a recogni- zance for stay of execution, 136,7. trial of right of property taken by a constable, 175,6; or by a sher- iff, 470. suit on transcript from or on docket of another justice, 181. suggestion that the defendant has lands liable to execution, 163. proceedings by an apprentice or others against his master, 199, n. 3. in attachment against a debtor, 233. 236. in cases of bastardy, 268,9. Index.'] Evi 557 Entries on the Docket, forms of — continued. in suit against a constable and his sureties, 275. 277. proceedings against a person for contempt in justice's court, 279. in action of forcible entry and detainer, 313 to 315. in cases of tender of damages or debt, labor, &c. 459 to 461. in criminal cases, 489. Entry, Forcible. (See Forcible Entry and Detainer.) Erasure; effect of fraudulently altering an instrument, 291. 416. Errors. (See Mistakes.) Escape; in criminal cases, 483. on a capias: what will be deemed, and the rights and liabilities of the constable in such case, 36; when and where and how the prisoner may be retaken, ih.; ofhcer not liable in such case if the defendant is sick or rescued, 37. on an execution for the body: what will be deemed, and the liabilities of constable and parties, 170 to 172; in what cases, and when and where and how the officer may retake the defendant, vi.; whether the officer is liable if defendant is rescued, 168. 171 n. 8; when es- cape is by consent of the plaintiff, the judgment is discharged, and the officer is not liable, 171; but consent of plaintitf thereto after the escape, will not discharge the officer, ib. n. 7. Estrays. (See Strays.) Evidence. (See Transcript's — Account Book — as to the attendance, exam- ination, and competency of witnesses, see Witnesses.) of the plaintiff: must be lirst examined, 63; must be confined to his bill of particulars, 38; except to prove defence or payment, or a set-off, 38,9. of the defendant: as to set-off, must be confined to his bill of particu- lars, 38. (See Set-off — Bill of particulars;) when the opinion of a witness or his statement of the substance of a conversation will be received, and when not, 64. hearsay evidence: what others have said, not in general admissible in evidence, 68; not to prove what witness beyond reach of subpoena swore on a former trial, 69; but may prove what a person said when he did an act, if the act itself be otherwise proved, and is material, 69; and so may prove what the other party has said, ib.; and so, to discredit a witness, may prove what he has said, 64; when a party may prove what he himself has said, 69. 71; may prove by hearsay the decease of a person, 69; so, what a person has said from whom both parties claim or derive title to the j)roperty in dis- pute, 69. 306; so, as to the time of the birth of a child, 70; so, what a deceased witness swore on a former trial between the same ])ar- ties, 69 admissions and confessions; by parties to the suit: when a party may prove his own declarations, 69. 71 ; by words and conduct and si- lence, 71 ; when a party may prove that his admissions were false, 71; cannot be received to prove contents of a paper unless the paper be lost, or its absence be accounted for, 72. 77; but may be received to prove facts admitted out of the paper, 72; when made in order to avoid a suit and to induce a com{)romisc cannot bo re- ceived, 74,5; so when made to an attorney in his professional char- acter, 76. by tenant, 72. 550 E V I [liKkx. Evidence — confinued. admissions and confessions — continued. by person under wliom the defendant el;iims, when admissible against him, 69. 30G. by agents, wlien a(hnissil)k! against their i)rinci|>als, 72. by tlie wile, when aeting as the agtuit of her luisband, 72,3. by one joint promissor, wlien a(hnissil)le against all, 73.362. by a ])artncr, when evidence against the iirm, ib. by a trespasser or wrongdoer, wlien evidence against his confeder- ates, 73. by a criminal, cannot 1)C received in evidence unless voluntary and without promise or threat, ib. how to be construed — the whole must be taken together, 74. what others than parties to the suit have said, cannot in general be received in evidence, 69,70; exception to this rule, 69,70. 306. presumptive or circumslanlial evi'/cnce: what it is, and the dincrencc between it and positive proof, 67; any fact is capable of proof by it, 67; when payment is presumed, 68; or that a person is the owner of property, ib.; or that a person is dead,?'^.; or that a person holds an office, ib. by writings: what verbal agreen)cnts and testimony may be set up to vary, explain, correct, discharge, or revoke a written or a sealed agreement, 84 to 86. verbal evidence of contents of written instruments, cannot be re- ceived in evidence if objected to, and the instrument must be produced, 77; unless the instrument is lost, 78; (See Bill of Exchange — Promissory Note — Negotiable Bond;) or the instru- ment is in the possession of the opposite party, and he has had notice to produce it, 78; or when the instrument conveys or af- fects lands, and is recorded and a copy thereof is produced, 79; or when the instrument is a record of public nature and authen- ticated copy is produced, 79,80; or the writing is a receipt or ac- count book, or pi'ivate memorandum, ib. how copies of records and instrum.ents affecting land, must be au- thenticated, 79,80. the execution of written instruments must be proved before they can 1x3 received in evidence, 80; unless an authenticated copy can be received as above mentioned, 8 1 ; or one party who claims an interest under it, produces it for the other party, ib. or the suit is brought on an instrument under seal, or upon a promissory note or bill of exchange, yZ». proceedings and evidence when defendant fdes an affidavit denying the execution of a promissory note, bill of exchange, or writing under seal, 82,3. how the execution of writings must be proved, and when the at- testing witness can alone prove their execution, 83,4. when an appeal is taken, the justice must send the written evidence and depositions to the clerk of the court, and when, 125. by d/"j)osiiions; when allowed to be given in evidence, 87; what de- fects in certilicate, notice, deposition, &c. will prevent a depo- sition from lx?ing received in evidence, 92,3. (Sec Depositions.) parol evidence; is such evidence as arises from the verbal testimony of witnesses, 281 n. 1. cannot be received to prove the contents of a written instrument, 77; exception to this rule, 78. 80. Index."] EXE 559 Evidence — j)aroI — continued. cannot in general be received to change or alte*r, or to show a mis- take in a written agj-eenient, 84. 327. when it can and when it cannot be received to show that the parties aftenmrds, by verbal agreement, changed, discharged or revoked the written agreement, 84. cannot be received to prove that a witness has been convicted of a crime, 58; but the witness may be asked if he is guilty of the al- ledged crime, 59. on whom ihe burden of proof resfs: where the defendant attempts to avoid his contract on the ground of insanity, 284. in suit against the hirer of an article, for its injury or loss, 245. in suit against the carrier of goods for injury or loss, 245 n. 1. 254. in a suit on a negotiable instrument that has been lost, 4 1 8. in a suit on a warranty, or for fraud in quality of goods sold, 440. the plaintiff'must first make out a cause of action by proofs or the admission of the defendant on the trial, (i3. what proof necessary to show an absolute sale or mortgage of goods without possession fraudulent, 318 to 320. when parties may prove that the return of an officer to a writ is false, and when not, 41,2. in a suit on a judgment, what defendant may pi-ove in defence, 180. what the defendant may prove ^^•hen sued on an award or arbitra- tion bond, 209. how partnership may be proved, 375. in crbni'ud cases; party injured may be a witness, 486. what proof of guilt should be required by the justice, 486. confessions of accused, when received and when not, 73. Examination of Criminals; proceedings on the trial, 485; amount of re- cognizance, 486; form of recognizance and mittimus, in such case, 484. 487; docket entries in such case, 489; what to be done with the transcript and recognizance, 489. Examination of a Witness; how conducted, 63,4. (See Witness — Evidence^ Exceptions, bill of; 98 to 102. Exchange, Bill of; (See Bill of Exchange.) Execution. stay of; when allowed and when not, 131,2. for what time allowed, 132. when and how to be obtained, with form of recognizance tlierefor, 132,3. no delay in issuing execution to give defendant time to enter into such recognizance, 133; but if execution has been issued, justice must recall it, and how, 133. when second recognizance for, may be required, 134; which recog- nizance to be first prosecuted in such case, J 35. surely for stay of ; how made liable to judgment, 134. execution must ijc first issued and relurned against defendant, before proceeding against such surely, ib. effect of death of defendant on his liability, ib. form of scini facias against, and how prosecuted, 135,6. may be proceeded against if in the county, 5. may have execution issued on the original judgment, 133,4. 137,8. may sue defendant on a transcrii)t of th(^ judgment, and how and where, 137. when he may recover from the surety of tiie defendant, 332. 560 EXE [Index. Execution — surety for siay of — continued. justice not bound to issue execution nftor the stay expires, unless requested, 141. eficct of defendant staying proceedings, after ;i levy, 154. 163 n. 7. entering stay docs not prevent delV;ndant from entering appeal, 118. issuing of; what kind first issued, i38. form of affidavit to procure execution against the body, 140. when further execution may be issued, 157. 139. Avhen to be issued against goods, liability of justice for delay, 138. cannot be issued against a township, ih. (See Tomisliij).) when it may be issued to another township of county, 140. when to issue before the time of stay expires, 133,4; or for the benefit of surety for stay, 137; or for the benefit of surety for an appeal, 129. when plaintitfmay issue on the original judgment, after execution returned against the bail for stay, 137. at what time and how, against executors and,administrators, 194.143 by judge, for costs of a contested election, 3, to compel either party to pay his own costs, 1 10 n. 3. for the sale of j)ropcrty taken on an attachment, 228. against a garnishee in attachment, 229. when it must issue against property remaining unsold, 141. form of; against goods and chattels, 142; against goods, chattels, and body, 142; against co-defendants, wlien some are certified to be sureties, 142,3; against executors dr.administrators, 143; against property taken on attachment,' 228,9 note 2^f against property re- maining in the hands of an officer unsold, 143,4; to compel either party to pay his own costs, 1 10 note 3. i7idorsemcnt of; must be indorsed with the amount of costs made by the party against whom it issues, 109; how indorsed when issued for the tenefit of the surety to an appeal, 129; or issued for the benefit of the surety for stay, 137. when execution or judgment void, proceedings under it are void, 166; the constable should not execute such writ, 34; when execution in- formal or irregular, proceedings under it good, 166; and the con- stable must execute such writ, 34. what search must be made for goods, by the officer, 158. levy hj; what property exempt from, and how value thereof to be as- certained, 145,6; when and what force may be used in entering houses, and breaking open trunks, doors, &c. to obtain property, 148,9; duty of the officer to seek for goods, and his liability for neglect, 158. 163; what property may be taken as goods, and what not, 146 to 148; upon property mortgaged or hired, 148; upon property sold, but not delivered, 422 to 425; (See Sales;) when the execution is against or in favor of a bank, 264; or against a silent partner of a firm, 377; cannot be made after the decease of a party to the execution, 154; may be made on return day of the execution, but not after, 158; the goods should be taken into the possession of the officer, 149,50; what is a good levy and what not, 149,50; if made before or after the officer has paid the execu- tion, it is void, 150; when sufficient goods are taken to pay the execution, while the levy subsists, the judgment is satisfied, though the goods are afterwards wasted by the officer, &c. 151; officer lirble to both parties after the levy, for the due application Index.] EXE 561 (Execution — levy hy — continued.) of the goods, 150,1 ; lialjility of officer for taking goods not belong- ing to the defendant, or for not taking goods of the defendant, 173; when and how a priority of a levy will gain a preference, 163,4; is destroyed if plaintitf stays proceedings after the levy but for an hour, 153 note 7; or permits the property to remain with the oflicer an unreasonable time, 154; when the levy is so destroyed, how it may be restored, ib. redelivery to the debtor of goods levied on; if done by the direction of the plaintitr, without bond for redelivery, it destroys the levy, ib,* when and what kind of pi-operty levied upon may be left in the pos- session of the debtor by the constable or plaintiti", 151 to 154; form of bond for redelivery, in such case, 151 note 4; liability of officer if the goods are not redelivered, 152. trial of claimant's right of property, how conducted, &c. 173 to 176. (See Claimant.) when execution to be recalled, and how, 125. 133. when a venditioni exponas may issue, &c. 141 . sale on; maj' be made, though both parties to the execution die after the levy, 154; how sale to be advertised, and form of advertisement, 154,5 note 8; in attachment is made as in other cases, 229; the pro^ perty must not be sold in amass, 155; need not be made if the pro^ perty will be greatly sacrificed, ib.; penalties &c. if justice or con- stable purchases, ib.; effect of combinations at, by purchasers, to prevent competition, ib.; will be good, though made on the young- est of two executioKiSj 164; when property of a partnership is levied on to satisfy^ thc,e shown, 305. against an occupier vnthout any color of title: what title the plain- tifi' must prove, 306; what defence may be set up against the plain- tiff, ib. verdict of the jury, what it should contain, 306,7; forms of, 311,12. judgment of justices, how to be given, 307. 303 n. 5; forms of, 313; no appeal allowed, 307. Index.l FRA 5G5 Forcible Entry and Detainer, — continued. no certiorari allowed after ten days, 307; effect of granting it, ii. writ of restitution, when to issue, and form thereof, 307. 313. forms of docket entries, 314,15. costs in, 107,8. [Sfat. 421, ^20.] Foreign Attachment. (See Attachment against dehlors.) Foreign Judgment, how it must be authenticated, 79,80. Foreign Laws; effect of a certificate of an insolvent debtor procured in an- other state or country, 30. their effect upon the rate of interest charged upon a claim payable in another state or country and sued here, 351. (See Currency.) Forfeiture. (See Recognizance — Bail — Penalties.) Forfeiture of the Condition of a Bond. (See Bond.) Forgery. (See Alteration — Counterfeit money.) The rights of the assignee against the assignor when the note &c. is forged, 214.395. 417,18. the innocent holder of a genuine note, bond, or bill, which is indorsed by forgery, cannot recover upon it, 418. acceptor of a forged bill of exchange is liable on his acceptance, ib. indorser of a forged note, bond, or bill, liable on his indorsement, ih. rights of parties when a bank check is forged or altered, 420. Former Recovery. (See Judgment.) Forms. See Entries on the ducket — Summons — Capias — Warrant — Ex- ecution — Scire facias — Bail — Recognisance — Oalhs 4* affirmations — Affidavit — Bond — Contract — Deed — Bill of sale — Power of aitor7iey — Mortgage— Will, cf-c. Frauds, and Fraudulent Misrepresentations; when a person may sue an- other for a ftdsehood, 316,17. when a person is liable for misrepresenting the pecuniary circum- stances of another, 10.316; or for transferring a void note, 10; or for misrepresenting the pecuniary circumstances of a debtor when transferring a claim to a third person, 212. as to the quality Sj-c. ofthinss sold: what will amount to a fraud, 432 to 436.317; damages in such cases, 433; the buyer may tender back the article, and recover what he paid or delivered in exchange, and when, 432. 435; the plaintitfmust prove the defect in the qua- lify, 440; in a suit by the seller for the price, the defendant may reduce the recovery by showing the fraud and defect, 440. 432. to defeat creditors: when conveyance by debtor is void as against his creditors, 318; conveyance for the benefit of one's self is void, /^. so when c(jnveyance is not recorded, i/;. so a conveyance by an in- solvent after his ap[)lication for relief under the insolvent law, ih. und(;r what circumstances void when debtor retains goods sold or moi-tgaged, ib. or when purchaser on an execution leaves the goods witli the debtor, 319; or when a gift is made by a jjarent to a child, 319,20; when a sale or conveyance is fraudulent, it is void, though the buyer paid full price and took possession, 320; is not void as Ijctween the parties to it, ib. when purchaser from the fraudulent buyer will hold the property, 320. 425; property may be transferred so as to give some creditors a preference, 320. what concealments from a surety will be deemed fraudulent, and dis- charge him, 327. if a buyer induces a sale by false pretenses or fraud, when the goods may Ik; recovered back, 425. master, in general, liable for fraud of his servant, apprcntice&c. 21,2. 5G6 HAN \Inde£. Frauds, Statute of. Bcc Frauds — Surchj — Contract — Adminislraloj's aiid executors. Freeholder, in what townsliip or county he may bo sued, 25,G. Freight. Sec Carrier of goods. Freight Boats. Sec Carrier of goods — Boats on canal. Fresh Pursuit, what, .36 n. 11. Fugitive; who may pursue, and where, 112.483; fees for arresting one charged with crime who removes from county, 1 13. (See Rescue.) Furniture; what property exempt from execution, 145,6. Gaming; action cannot be brought to recover a wager or bet, 288. (Sec Stat. 426,7.) Garnishee, who is so called, 218. Gift; promise of gift not binding, 288. when delivered, cannot be recovered back, nor compensation for it, ib. by parent to child, when void, as against creditors, 319,20. Gleaning; one who enters to glean in another"'s field is a trespasser, 464. Goaler. See Jailor. Gold Coin, which is a legal tender, 456,7. Good Behaviour, Surety for, when it may be required, and proceedings in such cases, 495 to 498. Grace, Days of. See Daijs of grace. Grantor and Grantee, what parties to a deed arc so designated, 210 n. 1. Guaranty; (see Sureties;) is an undertaking that a certain stipulation will be performed by another person, 321. it will be void under the statute of Frauds if not in writing, ib. what undertakings come within the statute, and what do not, 322,3,4. it will be void unless there is a sufficient consideration for it, 325. this rule illustrated, 325,6. what is a sufficient agreement in writing, with instances, 326,7,8. the guarantor will be discharged if the guaranty was obtained by con- cealing the extent of the risk, 329, or by the guarantee giving fur- ther time to the debtor, ib. or by the guarantee failing to sue the debtor after notice in writing from the guarantor to do so, ib. or by guarantee parting with property received to secure the debt, 330,1. or by neglecting to make demand of the debtor an unreasonable time, 328. 409. or by neglecting to give the guarantor notice of the nonpayment by the debtor, 327. 409. the rights and remedies of guarantor against the debtor, 330,1,2. Guardian. Sec Infants — Parent and child. may bind out his ward as an apprentice, and how long, 195,6. must protect the ward during his apprenticeship, 197; proceedings by guardian for benefit of apprentice, against the master, 197,8,9. when his power as guardian ceases, 333,4. extent of hi-^ power over the person and property of his ward, 333. how he is to sue and be sued, and his general duties and liabilities, 333,4. when liable for costs of suit prosecuted by him as guardian, 349. parent may appoint, in his will, 518. form of such appointment in a will, 519. Hamilton County: (See Lien:) witnesses attending in more than one crim- inal case, allowed but one dollar per day, 109 n. 2. Hand-writing, of attesting witness to an instrument, when it must be prov- ed, 83,4. of the maker of a written instrument, must in general be proved be- Index.] II u s 567 Hand^friting — continued. fore the instrument can be received in evidence, 80; exceptions to this rule 81. (See Evidence.) cannot prove the handwriting by a witness who only knows it from a mere comparison, 84. Hearsay Evidence. (See Evidence.) Heirs; may sue for injuries to the land, done after the decease of their ancestor, 18. when they niav be witnesses for their ancestor's estate, and when not, 60. Highways; general rule as to turning out where two teams meet, 256 n. 2. right of the owner of land through which a highway runs, and for what injuries done thereto he may sue, 465. when impassable, a traveler has right to go on the adjoining land, 464. Hire of Articles, or Goods; the rights, remedies, and liabilities of the hirer and letter of property, 244 to 246. when rights of the letter must appear in writing and be recorded, 245. Hiring and Service. (Sec Woi'k and Labor.) Hogs. (See Strays.) Holder of promissory note, bill of exchange, or negotiable bond, who is so called, 382,3. Horses; (as to taker up of a stray stoned horse, see Strays.) what concealment of defects or misrepresentation of quality of, will render the seller liable to action, 432 to 435. 437; remedy of buyer in such case, 434,5. warranty of, on a sale, that the seller is the owner, 437,8 : remedy of buyer if seller had no title, 436,7. what amounts to a warranty of quality, 438; must be made at, or form a part of the terms of the sale, 438; if made after the sale, is void, ib.; to what defects warranty of soundness extends, ib.; when the buyer may return the horse and recover back the price, and Avhen not, 439. remedy against the seller when there is both fraud in, and warranty of, the quality &c. 43 1 ; damages upon a breach of a warranty, 433,4. 439. if taken by buyer on trial, when to be returned, 440. House. (See Building, contract for; and as to breaking open doors to serve civil or criminal process, see Breaking open doors.) Householder; in what township or county he may be sued, 25,6; of one county, when he may be sued in any other, 26. Husband and Wife; rights of husband in his wife's land, 336; to whom it goes on his or her decease, ih. ellect of his conveyance or lease of her lands, ib. to whom the crops thereon go on his death, ib. effect of conveyance of land to husband and wife, ib. rights of the husband in leases belonging to the wife, 336,7; to whom they go on his or her decease, ib. rights of the husband in debts, &c., due the wife, 337; he alone can transfer a negotiable instrument made to her before the marriage, 391 ; to whom the debts, &ic.. go, on his or her decease, 337; wiieii an action on such debts is barred by the statute of limitations, 360,1, rights of the husband in the personal property of the wife, 338. his liability for debts owing and injuries done by lier before the mar- riage, ib. clfcct of his or her death upon the liability of each in such, cases, ib. 568 INK [Index. Husband and Wife — continued. when he is liable for necessaries and other things furnished her, 338,9. of notice not to trust her, and its effect, ib. when he is liable for crimes and injuries connnitted by her during the marriage. 339. when she can act without her husbantl, 340. 72,3. when her admissions arc evidence against him, 72,3. when they are incompetent witnesses for or against each other, 340,1. slie cannot be arrested for a debt, &c., 141. when they must join as plaintills, 341. when he must sue alone, 342. when she may sue alone, iJj. when they may join or not, as they please, 343. who must sue on the (U.'ath of husband or wife, 343,4. the effect of their death upon suits pending, ih. when they must be joined as defendants, 344. when she may be sued alone, ib. who to be sued upon the death of both, and its eifect upon suits pend- ing, 345. effect of mistake or omission in making them parties, ib. effect of marriage of a female upon suit pending by or against her, ib. claim due them cannot, in general, be joined in one action with a debt due to the husband, 14. Ignorance, is no excuse for not properly performing -what one undertakes, 241. (See Mistake.) Illegal Consideration; what is, 288,9; promise founded on it void, ih. if paid, it cannot be recovered back, 289. effect of part of the consideration being illegal and part good, 290. Illegal Contracts; are such as tend to promote crime or immorality, 288; (for effect thereof, see Contract.) Illegitimate Children. (See Bastards.) Immorality; contract which encourages, will not be enforced, 288; instan- ces of the application of this rule, 288,9. Implied Promise or Contract; what is, 282. Imprisonment; when defendant may avoid a contract on account of its hav- ing been made while he was imprisoned, 284,5. when and how long it excuses a party from bringing an action on claims due him, 360,1. Incompetent Witness. (See Witness.) Indentures of Apprenticeship. (See Apprentice and Apprenticeship.) Indorsement; liability of the assignor of a claim not negotiable by writing his name on it when he delivers it, 213,14. 409. (See Assignment of Claims not Negotiable.) effect of a third person indorsing his name on a note when, or after it is made, 325. 327. of negotiable instruments, how made, and the rights and liabilities of the parties thereon, 380. (See Promissory Note — Bill of Exchange — Negotiable Bond.) Indorser and Indorsee; who are so called, 382,3. (See Assignment of Claims not Negotiable — Promissory Note — Bill of Exchange — Negotiable Bond.) Infants; who are deemed, 34G; on what day they arc of age, 157 n. 12. when their age excUules them from testifying, 58; in such case what thev said is not evidence, ib. Index.] I N T 569 Infants — continued. when liable for necessaries furnished them and when not, 346,7. when parents liable for necessaries furnished them, and when not, 365. what contracts of an infant arc void, 347,8. for what injuries liable, 348. how, by whom &c. they may be apprenticed, 195,6. (See Apprentice.) how they may contirm a voidable contract, 348. liability of a person who contracts with them, 348,9. how they should sue and be sued, 349. (See Parent and Child.) how liable for costs, 349. when claims in favor of are barred by the statute of limitations, 365. at what age they may marry, 363 ; cannot marry without consent of parent &c. ih. how justice should be satisfied thereof, 364. parent cannot lease land, or recover rent or other debts of, 365 j but may sue for injuries done to his child, Ih. parent entitled to earnings of child, ih. but may permit his child to contract for his services, ih. the rights and powers of a guardian over the person and property of his ward, 333,4. 195. (See Guardian.) Innkeepers; who are deemed such, 261 ; who are guests, ih. liability for goods, baggage &c. of guests generally, 259 to 262. when exonerated from liability for the loss of goods of guests, 263. must receive such guests as he can accommiodate, 261. has a lien on the person and goods of his guests for bill, ih. has a lien on a horse though left by a thief, 355,6. if guest behaves rudely he is a trespasser, 464. Inner Doors. See Breaking ojjen Doors. Inquest of Coroner. See Coroner. Insane Persons, and Insanity; when plea of insanity is a good defence against a contract, and who to prove it, 284. within what time a claim in favor of, must be sued, 360,1. Insolvent Debtor; when privileged from arrest, 30. 139. of another State, when privileged from debt and arrest, 30. copy of his certificate should be returned by constable with the pro- cess, 30; form of such return, 169. when his assignment or sale of property is void, 318; when his con- tracts are void, 289. negotiable instruments due him may be indorsed by the commissioner of insolvents, 391. Insolvent Laws of other States; hov/ they affect the debt of the insolvent when he comes to this State, 30. Installmenls; how interest to be computed, 352. Interest; what rate of interest may be contracted for ruid recovered, 350; whether usurious interest can be recovered back, 351 ; usurious in- terest taken by a bank avoids the contract, 264. what rate recoverable on contracts made or payable in other States, 351. may be calculated from the Uma a claim is due if contract is silent as to interest, 351. when it commences; on a note payable on demand, 351 ; on a due bill, ih. on a merchant's or other account, ih. on cash advances, 351,2; on uncertain damages or amounts, 351. how computed; when payment is made before the debt is due, 352; or e.xceeds or is less than the interest, ih. example of calculation 353 note 1; when interest upon interest may be comi)uled,354. 73 570 J o I [Index. Interest — continued. in what cases interest may be stopped by tender of money, 458. 455. when payment of interest on a debt barred by the statute of limitations will revive the debt, 36 1,2. Interlineation; effect of fraudulently altering an instrument after it is made, 292.416,17. Intermediate Parties to a Negotiable Instrument; who so called, 411 n. 2. Interpreter; form of oath to, when the witness docs not understand tho English language, 94. Inventory; constable must make out schedule of goods levied upon and sold on execution, 156; form thereof, 160; penalty for neglect, 156. appraisement and inventory of property attached, how made out, 219 ; form thereof, 232. Irregularity. (See Warrant — Appearance — Mistake — Execution.) Jailer; if not at prison when constable takes prisoner there, and there is no one to receive prisoner, the jailer will be liable for escape, 167. Jews; how oath to be administered to, 58. Joinder of diflcrent Causes of Action in one Suit; what causes of action may be joined in one suit, 13. •when the plaintiffs claim is entire, he can have but one suit, 104. each officer or witness must sue separately for their fees, 111. when the property of different persons is taken or injured, they must sue separately, 19; but not where property is owned jointly, /Z*. Joint Promise or Contract; (as to contracts made by and with partners, see Partners and Partnership; as to rights &c. of sureties, sco Surety;) what are joint promises, and what are joint and several, 1 5 note 2. if one of the joint promissors or promissees die, the survivor must sue and be sued, 16. 19,20. cannot join in same action a claim against two or more defendants with a claim against one, 14; so, cannot set off a joint demand against a separate debt, or a separate debt against a joint demand, 443,4. how to sue when two or more joint promissors reside in different townships or counties, 26. cannot sue them by attachment unless all have absconded or are non- residents, of the county, 210. effect of omissions or mistakes in making parties to the action, 19, 23. release or discharge of one, will discharge all, 187. when admissions of one joint promissor are evidence against all, 73; such admissions will revive a debt barred by the statute of limita- tions, 362. Joint Wrongdoers; how sued when they reside in different townships, 26. claim against all and a distinct claim against one cannot be joined in the same action, 13; but distinct injuries by all may, 23. they may be all sued separately and judgments had against each, but only one satisfaction, 23, and note 13. liability of promoter of injury, 23. release or discharge of one, will discharge all, 187. declarations by one, when evidence against all, 73. when sued separately, are competent witnesses for or against each other, 60. judgment, when some of the defendants are guilty and some not, 23. Lidex.] JUD 671 Joint Wrongdoers — continued. they cannot sue each other to recover back a portion of the money which they have been compelled to pay for their misconduct, 23. Journeymen; for what contracts entered into and injuries done by them, their employers are liable, 21,2. in what cases they cannot be examined as witnesses for their employ- ers, 59,60. effect on their compensation if they abandon the service before their term of service expire, 471 ; or are dismissed, ih. Judge; duties of an associate judge on the trial of a contested election of a justice, 2,3. is priviledged from arrest for debt &c. and when, 29. 139. Judges of an Election; form of oath to, 299. Judgment; the difference between an irregular and a void judgment, 103,4. on the merits of a cause; form of, for the plaintiff, 105. 117; for the defendant and for costs, 106. 118; for the defendant for a balance due him, 106; effect of, as to bringing a new action for the same cause, 104,5; is only evidence against the parties themselves, and those who claim under them as assignees &c. 104. by default; form of, 117; may be rendered in absence of the defend- ant, 45; how it may be set aside and a new trial had, ih.; form of docket entry in such case, 117. ofnon suit; form of, 103; when to be rendered, and effect of, as to bringing a new action, 102,3. of discontinuance; i'ovm o^, 103; when to be rendered, and effect of, as to bringing a new action, ih. fees for entering various judgments or satisfaction thereof, 108. whose costs to be entered in the judgment, and whose to be indorsed on the execution, 109. hy confession: form of, 121,2; may be rendered for two hundred dol- lars, 6; no appeal lies therefrom, 123. (See Warrant of At- torney.) on a scire facias; forms of, on recognizance of appeal, 128,9; on re- cognizance for stay of execution, 137; on transcript or docket of an- other justice, 181. 137; against a constable and sureties, 275. 277. on trial of right of property taken by a constable, form of, 1 80; when taken by a sheriff, form of, 470. on trial of right of claimant, in attachment, 222 notes 3,4. 236. in attachment, forms of, 234,5. in actions of forcible entry and detainer, form of, 313; when for costs in such case, and when not, 313 n. 1. 307. for a fine, form of, 56. GG. how di.'icharged; by the plaintiff releasing a levy, 150; by seizure of sufficient goods on execution, though the officer wastes them, or their proceeds, 151; by plaintiff releasing the body of defendant after his arrest on an execution, 171. general effect of; when rendered for the value of goods wrongfully taken, payment thereof vests the ownership of the goods in the de- fendant, 12. 467; when such suit is brought by the person in pos- session of tlie goods, owner cannot afterwards sue, 22; when a per- son has but one entire cause of action, and sues for and recovers a part, 98; judgment on the merits satisfies claim itself, 185, n. 1. money paid on, liowever unjust, cannot lie. recovered back, 104. what defence may be made when an action of debt or scire facias is brought on a judgment, 180. 572 JUS [Index. Judgment — conlinued. how assigned, 211. (Sec Assignment, of claims not negotiahle.) against a township, how collected, 138 n. 1. Jurisdiction of Justice; in civil proceedings; in general, limited to town- ship, and one hundred dollars, 5; when balance claimed docs not exceed one hundred dollars, has jurisdiction, G. 384 n. 2; in what cases co-cxtensive with the county, 5. 25; when it extends to more than one hundred dollars, G; in what cases a justice has no jurisdic- tion, 7,8. 26; conseut of parties will not give jurisdiction, 8; con- sequences of proceeding M'ithout jurisdiction, 8. as to the peison sued; freeholder or other person residing in one coun- ty may be sued in any other county, if he can be served with pro- cess, 25; so, a person who is neither a freeholder nor a householder of county may be sued in any township thereof, if process can be served on him, 26; but a householder or a freeholder of the county cannot in general be sued in any township, except in the one whore he resides, ib.; exception to this rule, 26,7. in cases against a constable and his sureties for official misconduct, 272.275; in forcible entry and detainer, 301; when the docket must show a case for the special jurisdiction, 122. 115. in criminal cases; extends to the county, 477,8. (See Penalties — Assault and Battery — Fighting — Affray — C/ial/enging to Jiglit. how to punish for contempts and disturbances wliile holding court 278. Jury; when jurors privileged from arrest, 29. 139. in what cases allowed in civil cases, and the selection, talesmen, pro- cess, oath, verdict, proceedings, &c. 95 to 98. when and how summoned, and proceeding of, upon complaint against a master, for the protection of the apprentice, 198,9; like ])roeeed- ings by master against apprentice for bad conduct, 199. 200. at coroner's inquest, how summoned, impannelcd, sworn, and their duties and verdict, with forms, 293 to 295; penalties for neglecting to obey the venire of the coroner, 296. in an action of forcible cnlry and detainer; when venire to issue, 302. requisites and form of the venire, 310; for what may be challenged, 303; how panel fdlcd, ih.; form of oath and affirmation to jury, 311 ; what they should find by their verdict, 306,7; form of their verdicts, 3 11,12. on trial of right of property taken by shcrifF, form of venire for, 468 note 1 ; panel may in such case be filled by talesman, 469; form of oath and verdict in such case, ib. fees in relation to; issuing venire for, 107; service of venire for, 108; swearing jury, ib.; fees of jury generally, in civil cases before jus- tice, 98; for sitting at a Coroner's inquest, 296; on trial of right of property taken by sheriff*, 470; in proceedings between a master and his apprentice, Stat. p. 65, sec. 12; in proceedings in forcible entry and detainer, Stat. p. 421, sec. 20. Justice of the Peace; number in each township, and increased or dimin- ished, 1 ; term of office, 1. when and how elected — how election contested, 2,3. his official oath, and form of certificate thereof, 3 note 2. when he must transmit to the township clerk the date of his com- mission, 4. form of his official bond, 4 note 3; what is a breach of its condition for which his sureties are liable, 165; his sureties cannot be sued before a justice, 165. Index.] LAN 573 Justice of the Peace — conlinucd. resignation of, and when the office is vacant by absence, 4 ; neglect to give bond, &c., ib. what must be done \\\\\\ laws, his docket, &c., when his office be- comes vacant by death, expiration of term, or otherwise, 178. may preside, in the absence of a judge, on the trial of a contested election of a justice, 3. what relationship to parties prevents him from trying a cause, 26. jurisdiction in civil cases, 5 to 8. (See Jurisdicliun of Justice.) how to open and certify the returns of an election, 299. jurisdiction in criminal cases, 477. 487. 491 to 498. (See Jurisdicliun of justice — Affray — Penal lies — Assault and halter y — Fighting — Challenging to fight, 6)-c.) may arrest, or cause an arrest, without warrant, and when, 478. when to act as coroner of county, 293. (See Coroner.) when he may appoint a constable, and how, 271. what instruments upon which judgment is rendered must be filed, in- dorsed and retained by him, 40; or upon appeal sent to the clerk of the coui-t, 125. effijct upon a suit of his unreasonable delay to proceed, 46. may certify transcript from the docket of an absent justice in his pos- session, 79. how to decide a cause when the testimony conflicts, 102. may punish, and how, for disturbances, &c., while he is trying a cause, 278. when he may be proceeded against for refusing to pay over money, and how it should be demanded, and its payment with penalties, en- forced, 164,5; in such case, no stay of execution allowed, 131. liable to a party injured for official negligence, 133; so for delay in issuing execution, 138; so for proceeding without jurisdiction, 8; so for issuing process against the body when he knows the defendant lobe privileged from arrest, 167. penalties against, for purchasing at sale on execution issued by him, 155. ought not to receive money on a judgment while an execution Is in the hands of an officer, 164. must keep a docket, and stray book, 114. 454. (See Docket — Entries on the docket — Strays.) Keeping the Peace, Recognizance for; when it may be required, and pro- ceedings in such cases, 495 to 498. Laborer; for what contracts entered into, and injuries done by a servant, the master is liable, 21,2. when he may be a witness for his master, and when not, 59,60. compensation of, when he abandons the service, or is dismissed before his term of service expii'es, 471. is liable for gross negligence, though doing the work gratis, 240,1. Lading, Bill of. See Bill of lading. Land. See, also. Trespass upon land — Crops — Forcible entry and detain- er — Landlord and tenant — Lease — Heirs. form of suggestion that the defendant has lands, when to be made, and the effect thereof, 163. what is included in the term land, 463. contract for purchase of, does not, in general, give Iniycr a riglit to take possession, nor to cut timber, 464; exceptions to tliis rulr, //;. 574 L I E [htdez. Landlord and Tenant. (Sec, also, Forcihlc entry and detainer.) Interest of landlord or tenant not aiU'ctcd in certain cases when the crop is levied upon by an execution, 156. verbal lease, when binding, 304. tenant only, and not the landlord, can sue for a trespass upon the leased land, 465,G. but landlord may sue the trespasser for trees cut down, 465. tenant may sue his landlord for entering upon the leased land with- out license, 466. or for turning him out, even after the expiration of the lease, ih. rights of landlord when tenant on shares abandons the crop, 474. tenant cannot dispute the title of the person under whom he claims, 72. exception to this rule, ib. the tenant's estate in the land may be sold by constable as a chattel, 147; form of return to execution and bill of sale in such case, 161. what buildings erected by the tenant may be removed by him, or may be sold on execution as his goods, 147. landlord entitled to crops sown by tenant, which ripen after the ex- piration of the lease, 466 n. 2. Larceny. Sec Stolen properly. Lawyer. See Attorney at law. Leading Questions; what, and who may ask tl)em, 63. Lease. (Sec Landlord and tenant.) Form of, 506. verbal lease, when good, 304. by a guardian, for what period good, 333. by a husband, of his wife's land, for what period good, 336. parent, unless appointed guardian, cannot lease his child's land, 365. Ledger, when it must be produced on trial, 190. Letter of Credit; vi proposition to guaranty, not sufficient, 326. what is a sufficient letter of credit to bind the writer, 326,7; the du- ties of the person to whom it is addressed, to render the writer re- sponsible, 328. 409. Letter of Goods, who is so called, his rights and remedies, 244. Levy. See Execution. License; to pass and repass on another's land, how far binding, and how revoked, 287. 463. in what case marriage license must be obtained, 363. agreement for sale of land, when an implied license to the buyer to take possession, 464. Lien; what is meant by this word, 355. possession, in general, necessary to create a lien, ih. when it exists on property, it cannot, in general, be taken by process against the owner until the lien is satisfied, by tender or payment, 148.220. of the tenant, or the landlord, upon the crop, how affiscted by an exe- cution levied on the crop, 156. of a bailor, on goods deposited, extent and nature of, 240. of a borrower, on goods borrowed, for extraordinary expenses incur- red about the goods, 242. of a carrier of goods, for freight, extent and nature of, 254. of a storage merchant, 355. of a stage proprietor, on the baggage, for the fare, 258. of a tavern keeper, for bill, and extent of, 261 ; he may retain horse, though left by a thief, until charges of keeping are paid, 366. Index ^ L u N 575 Lien — continued. of Mechanics: on an article they have worked, 355; extends to tlie whole entire work, ib. does not exist when time is given to pay tor work, ib. nor after parting with the possession of an article, 35G. cannot sell the article, if it belongs to the employer, upon paying merely for the work, ib. cannot retain the article for charges upon other articles, or for other debts, ib. remedy of mechanic when the owner or others wrongfully take the article, ib. owner cannot sell the article so as to destroy the lien, ib. (As to lien of mechanics and furnishers on houses and buildings, &:c., in the counties of Ham- ilton, Washington, Montgomery, Scioto, Muskingum, and Knox, see Chasers Statuies, 2160, and 3Sth vol. Local Laws, 1 15.) of factor, or general agent, or commission merchant, for his advances &c. to his principal, 356. of seller, (for price,) upon goods sold, 356,7; exists only, in general, where the purchaser is insolvent, 357; seller can take them only while on their way to the buyer, ib. what will be deemed taking possession in such case, ib. when a lien will be created by the wrongful act of a servant or thief, &c., 355,6. finder of goods has no lien for charges, 355. but may recover his charges by suit, ib. lien is divested by the delivery of the property to the owner, 356. but is not aflected by the owner selling the article, ib. when article of another is retained on account of charges, it cannot be sold, ib. nor retained on account of any other claim or demand, ib. (See Factor.) remedy of person who has lien, if the owner or other person takes or injures the article while retained on account of the charges, 356. Limitation of Actions; within what time civil actions must be brought, 358. at tchat period the time limited for bringing the action commences ; not until there is a right to sue, or breach of contract, 359 ; where a bill of exchange is payable after sight, ib.; where there is no breach of the contract until a demand made, ib.; when a person takes or withholds property from the owner, ib.; where there is a running account, ib.; where there has been a settlement by striking a bal- ance, 360; where a wrong or injury has been done and subsequent- ly discovered, 358. 360; where the cause of action arises in the lifetime of a decedent debtor, or afterwards, 360; where the plain- tiff is a female and was married, or was an infant, or was insane, or imprisoned, when the cause of action accrued, 360,1 ; when the defendant left or removed out of the State, or ran away, or went to place unknown, ib.; where judgment has been arrested, revers- ed, or suit abated, or a nonsuit, 361; where there has been an acknowledgment of the debt or claim, 361,2, Lost Goods, and Lost Negotiable Instruments, &c. ; when innocent holder from fmder of negotiable instrument, can recover on, and when not, 417,18. 420; when owner thereof cannot sue on, 418. 420. plaintiff may be a witness to prove the loss of an instrument, 418. (See Evidence.) rights of parties to a lost or stolen bank bill or check, 420. the owner of lost goods is entitled to them on demand though sold by the finder to an innocent purchaser, 425. 23. (See Finder, Sf-c.) Lunar Month; when months arc mentioned in u statute, note, contract, &c. how computed, 157, note 12. / 576 MEM \lndex. Lunar Month — conlinucd. when note 'Sic. due, if pay bio limited number of months after date, 402. Lunatics, Idiots, and Insane Persons; when plea of insanity a good defence ai^ainst a contract, and \sho to prove it, 284. within wliat time a claim in favor of must be sued, 360,1. Madmen. See Liiitalics, ^-c. Majority. Sec Agent. Mail; money sent by, and lost, who shall bear the loss, 379. Market, Sales at; when articles are sold for domestic use, the seller impli- edly warrants that the article is sound and wholesome, 437. Marriage; may be solemnized by a justice anywhere in his county, 5. form of ceremony, 364; fee for, and for making return, 108. who may be married, 363; when consent of parent or guardian ne- cessary, ib. how justice to be satisfied thereof, 364. must be publication of bans, or a license obtained in the county the female resides in, 363. certificate of, must be transmitted to clerk of court, and when, ib. form of the certificate, ib. note 1. i\Iastcr and Servant; (See Ajrprentices;) for what contracts entered into, and injuries done by the servant, the master is liable, 21,2. when the servant may be a witness for or against his master, 69,60. as to wages of servant when he abandons the service before his term expires, or is dismissed, 471. I\Iechanic. (As to tender of work, see Tender.) what tools of, exempt from execution, 145,6. not bound to perform what he has agreed to do gratis, 240,1. but if he performs in such case, cannot recover compensation, 288. is liable for gross negligence in doing such work, 241. to what extent liable for unskillfulness in his v/ork, 245,6,7. when liable for loss or injury to property worked on, 247. employer not bound to take the article unless made in a workmanlike manner, 472. how amount of claim for work may be reduced, 474. cannot recover for making a ga.ming device or gaming machine, 288. work to be done on demand, when it may be done, 456. who owns the article before delivery where the employer finds part of the materials, 424,5; or when an article is ordered and paid for in advance, 424. his lien on an article, for his work; it extends to the whole entire work, 355; does not exist where time is given to pay for work, ib.; nor after parting with the possesssion of the article, 356; cannot sell the article if it belongs to the employer upon paying merely for the work, ib. cannot retain the article for charges upon other ar- ticles, or for other debts, ib. rem.edy when the owner or others wrongfully take the article, ib. owner cannot sell the article so as to destroy the lien, ib. (See Lien.) Members of CongVess; privileged from arrest for debt, &;c. and when, 28. 139. Members of General Assembly; privileged from arrest for debt, &c. and when, 29. 139. penalty for arresting, 29. justice who issues warrant against, for a crime, must give the Gene- ral Assembly notice thereof, 29. Index.l MON 577 Memorandum; made merely to refresh memory of a fact, cannot, in gene- ral be received in evidence, 80; cases in which such memorandum may be received in evidence, 69,70. Mesne Process; what is so called, 16 note 4. Messengers of the General Assembly; privileged from arrest for debt, &;c. and when, 29. 139; penalty for arresting, 29. justice must give notice to General Assembly of the arrest of, in a criminal case, ih. Mileage; fees of constable for traveling to serve process, 109. Militia; when privileged from arrest, 29. 139. Minors; who are, 346. (See Infants — Apprentice.) Misjoinder of Parties; its efiect on the action, 19. 23. Misnomer; is a mistake in the name of a person, 43. effect of, in names of parties to actions or contract, and how cured, 43,4; in a capias, 34; in an execution, 167. Misrepresentation; (See Falsehood — Fraud.) Mistake; how to sue when there is a mistake in the name of the person to whom or by whom a contract, note, &c. is made, 17. 43. effect of; in a bill of particulars, 38,9; in making icrong parties to an action by or against partners, 374: or by or against other parties, 19. 23 ; in the natne of the right parties to an action, and how cured, 43,4; in a summons, or its service, and how cured, 43,4. 302; duty of a constable when mistake of name of defendant in a writ 34. 167. when mistake in an entry on the docket may be corrected, 116. 130. remedy when a mistake is made in a settlement, or after a receipt in full is given, 190. when a person receives his own property to keep and re-deliver to depositor, 239. when in a written or sealed contract, it cannot be set up to change or vary its terms, 84 to 86. 327. where money or property is paid by mistake, in what cases it may be recovered back, 282 to 284. Mittimus; ybrms of; for commitment of defendant to jail when suit is com- menced by capias, and is adjourned, 52; against a witness for refu- sing to testify, when deposition is to be taken, 89 note 5; against a person for disturbance or contempt while justice is trying a cause, 279,80; against a garnishee in attachment, when arrested on a warrant, 225 note 4; against an accused person pending a trial, 485; against an accused person after his examination, 488; against a pcason who has been ordered to enter into a recognizance to keep the peace, 497 note 1. form of return to, 52. fees for issuing, 197. for the service and return, 108,9. Mobs; who may suppress, and how, 497 note. Moderate Correction; who may give it, and to whom, 493. Money; in what cases money may and may not be recovered back, whicli has been paid on a contract, 9. 430; or by mistake, 283,4; or under false representation, or false warranty, or concealment of quality of goods, 435. 439. what kind of money is a legal tender, 456,7. may be levied upon and aj)plied without sale to an execution, 147. Months; whether calendar or lunar, when mentioned in a statute, contract or note, &c. 157 note 12. 402. 74 / 578 N E o [^Index. Months — ccmiinued. when note payable certain number of months after date, the day of the date is e.xcUuled in the computation of the time when due, 402. Moral Obligation; when promise to do a thing on account of a mere moral obligation to do it, is void unless there was a previous legal obliga- tion to do the thing, 287. Mortgage; form of, for lands, 506; how to be executed, and when to be recorded, 601 to 503. of goods and chattels; form of, 512; when fraudulent and void, as against the creditors of the mortgagor, 318. 320; but is good as between the parties, though void as to creditors, 320; when to be recorded, 245; cannot, in general, be levied upon by execution against the mortgagor, until the mortgage is satisfied, 148. 220; effect of mortgage on the ownership of the goods, after the time for the payment of the mortgage money has ex})ircd5 243 note 1 ; (See Pawnor and Pawnee.) Mortgagor and Mortgagee; who arc are so called, 210 note 1. Mother; if father of children dead, the mother may bind out her children as apprentices, 195. Mulatto; who is, 58 ; when not a competent witness, ib. Name; effect of suing a person by a wrong name, and how corrected, 43,4. in what name to sue when there is a mistake of the name in the con- tract, 13. christian and surname should be written out in full on the docket, 1 16. when a mistake of name in the process, Avhat the constable must do, 34. 167. Navigation. See Vessels. Necessaries. See Infants — Husband and Wife. Negligence. See Borrotcer — Hirer of goods — Carrier of goods — Tres- pass zipon lands — Work and labor, Sf'C. Negotiable Bond. (As to other bonds, and the assignment of them, ice. see Bond — Recognizance — Assignment of Claims not Negotiable; as to sureties in, see Surety.) when balance due is less than one hundred dollars, though the penalty more, may be sued before a justice, 6. 384 note 2. form of, 384. the action against the maker, should be debt and not covenant, 1 1. what other claims may be joined in the same suit, 13. of the proof of the execution of, on the trial, and when required, 81 to 84. must be fded with the justice and indorsed by him, and on appeal filed with the clerk, 40. 125. nature and effect of a penalty in, and what part may be recovered, 384 note 2. docket entries in suit on, 1 1 9,20. bank must sue makers find indorsers jointly, or pay costs, 264. maker or obligor of, is the person who executes or makes the instru- ment, 384. payee or obligee of, is the person to whom the maker promises to pay the money, ib. indorsee of, is the person who transfers the bond by indorsement, 383. 385. indorser of, is the person to whom a bond is transferred by indorse- ment, ib. Index.] NOT 579 Negotiable Bond — continued. holder of, is the payee, indorser, or other party, who for the time being owns and holds the bond, 382. the rights, duties and liabilities of the payee, indorser, indorsee, and holder of a bond, are the same as the payee, indorser, indorsee and holder of a promissory note, 385. (See Pro7nissory Note.) the requisites of a negotiable bond in, general, the same as that of a promissory note, except that a seal is annexed to the bond, 383. 385. (See Promissory Note.) the rights and liabilities of sureties in a negotiable bond arc the same, in general, as sureties iu a promissory note, 328,9. (See Surety.) exception to this rule, 416 n. 1. effect of a third person, (not the holder or transferrer of the bond,) writing his name on it as a surety, 327. 325. made by infant, is void, 347. within what time an action on, must be commenced, 358. (See Lim- itation of Actions.) interest on, 350. 584 n. 2. (See Interest.) partner cannot bind the firm by a sealed instrument, 372, exception to this rule, ih. Negotiable Instrument; what, 210. (See Bill of Exchange — Promissory Note — Negotiable Bond.) Negroes; when not competent to testify, 58. if nearer white than mulatto, are deemed white, ib. Newspaper Advertisement. (See Advertisement.) New Trial; when and how defendant may obtain it, 45. 98; form of entry on the docket in such cases, 1 17. Non est Factum; form of plea of, before justice, with affidavit, 82. Non-joinder of Parties; effect thereof upon the action, 19. 23. (See Par- ties to Actions.) Non-suit; form of, 103. when to be rendered, and effect of, as to bringing a new action, 102,3. (See Limitation of Actions.) Note. (See Promissory Note.) Notice; (See Advertisetnent;) 2vhen, by whom, and hoio given, and form thereof: by claimant of property taken on execution by a consta- ble, 173,4; to take depositions, 87,8; must be inclosed with the depositions, 92 ; of the issuing of an attachment, 2 1 9. 23 1 ; by claim ant of property attached, 221,2; when an election is contested, 297,8; in forcible entry and detainer, 301. 306; [etfectof not giving it, as to costs, 303, and n. 5;] by taker up of stray, and the appraise- ment thereof', 445,6,7; by claimant of property taken on execution by the sheriff, 468,9; of a sale on execution, 154,5 note 8. how the service of notice may be proved, 78. when notice of new trial after judgment by default must be given, 45. to plaintiff, to i)roceed to trial when the defendant is brought up on a capias and how served, 49. to produce papers on the trial, must be given to opposite party before proof of contents of papers in liis possession can be received, 78. to wliom, and when such nc^tice slujuld be given, ib. how the rights of a debtor are affected by notice of the assignment of the claim against him, 212. effect of notice by carriers of goods that they will not be responsible for losses &c. and who are bound by it, 253,4. 580 o R [Index. Notice — continued. to a creditor by a surety to prosecuto the principal, must be in writing, and the eOect thereof, 327. 329. by husband not to trust his wife, its effect, 338. to a partner is notice to the firm, 372. of the dissohition of a partnership, how to be given, 373; its effect on the liability of partners for subsequent debts of the firm, ib. by holder of negotiable instrument, to charge indorsers &c. 405,6. (Sec Promissory Note — BUI of Exchange — Negotiable Bond.) to gunrantor of a debt or claim, when to be given to render him liable, 409. to the assignor or transferrer of a claim or demand not negotiable, when to be given to render him liable, 409. (See Assignment of Claims not Negotiable.) what is constructive notice, 369 note 3. Nuisance; civil suit on account of, cannot be brought before a justice, 6,7. may be removed by person annoyed by it, 464,5. Oaths and Affirmations; (for the forms of afBdavits, see Affidavit.) forms of: to witnesses, on a trial, 93,4; when a party is examined as to his account book, 190; trial before arbitrators, 203 n. 3; when depositions are taken, 89,90; to an interpreter, 94; to the truth of an affidavit, 94; to a woman on cotnplaint of bastardy, 266 note 1 ; to authenticate an account against an estate, 193; by taker up of stray, 446 note 2; by appraisers of a stray, 447 note 1 ; to arbitra- tors, 203 note 1 ; to clerks and judges of election, 299. to jury: in civil cases generally, 97; on trial of right of property ta- ken by sheriff, 469 n. 2; when trying a complaint by or against the master of an apprentice, 198 n. 3; at coroner's inquest, 294. may be administered by justice in his county, 5. substance of official oath of justice, when and before whom to be made, and form of certificate thereof, 3 note 3. substance of official oath of constable, 269. fees relating to, 108. Obligation. (See Bond — Negotiable Bond — Bail — Surety.) Obligor and Obligee; who are so called, 210 note 1. Occupation. (See Possession.) Officers; when, and when not personally liable for their public contracts, 21. when three or more appointed to do an act, the act of the majority will be binding, ib. who are privileged from arrest, and when, 28 to 30. 139. cannot issue capias against an officer for official or corporate debt, 30. proof that a person acts in an official capacity, is sufficient evidence that he is duly commissioned, &c. 68. when contract to indemnify for illegal act is void, and when not, 171. promise to pay officer for neglecting to perform his duty, is void, 288. township officers must be notihed of their election by a constable, 271. sureties of, extent of their liability, 328. (See Justice of the Peace — Constable.) suits against, cannot in general be brought before a justice, 8. (See Jurisdiction of Justice — Constable.) have a right to go on the land of another to execute process, 464. Opinion of Witness; when it may be inquired into, and is evidence, 64. Or — when used at the termination of a word designating the parties to a transaction, it has an active signification, as grant-or, &c. 210 n. 1. Index.l PAR 581 Order; form of an order for restoration of property to claimant, 174, n. 2. such order may be disregarded by the constable, 175; but not one issued on trial of right of property .taken on attachment, 223. when order for restoration of property taken on attachment must be issued, ib. directions for making out such order, ib. n. 1. on merchant &c. for property, is better evidence than the charo-e in the account book, and should be produced, 190. the word order, bearer, or assigns, necessary to a negotiable instru- ment, 386; payable to 'A or order,' or 'to order of A,' how to be transferred, 386. 389. form of order to appraisers of a stray, 447, note 1. recalling execution, when and how done, 133. 125. Ordinances. See Toitns. Overseers of the Poor; when liable for money expended for a pauper, 9. form of bond to, by the father of a bastard child, 266 n. 3. when they may prosecute the father of a bastard child, 268. Ownership of Property ; (sec Parties to actions;) when it passes to the buy- er on a sale, 422 to 425. passes to a trespasser, on paying a judgment for its value, 12. 467. after tender on a sale, the seller may consider the goods the buyer's, or not, 429. no one but the owner, or person authorized by him, can transfer the ownership to another, 23. 427. person in possession, not being the owner, may sue a person who takes or injures the property, 12. purchaser on execution takes the interest that the debtor had in the goods, 156. on a sale, there is an implied warranty that the seller can convey the ownership, 436. Packet Boat. See Boats on Canal. Pardon; by governor, of a felon, restores his competency as a witness, 58. Parent and Child; the parent may bind out his child as an apprentice, 204. how he may proceed against the master for the protection &c. of the apprentice, 197 to 199. (Sec Apprentice.) parent is bound to support his minor children, 365; when liable for necessaries furnished to his child, and when not, ib. when entitled to the earnings of his minor children, and when not, ib. when the child may contract and sue for his earnings, ih. when the parent may sue for a personal injury done to his child, ib. father entitled to the custody of his child, 366. (See Bastards.) when child may recover from a parent for his labor, 366. when minor child must have the consent of his parent before marry- ing, 363. when a gift by parent to his child void, as against creditors, 319,20. Parol Evidence; is the verbal testimony of witnesses, 281, n. 1. (See Evidence.) Particulars, Bill of See Bill of particulars. Parties to Actions. (See Husband and ivife. As to Admissions, &c., see Evidence.) on contracts and pro)nises; who to be jj/aintif; when suit is not on a negotiable instrument, 15; when made to two or more, 15,16; when made to two or more, and one or more are dead, 16; when made to partners, 374; in suit for fees or costs. 111; in suits by corporations, the Ohio Pen- i82 PAR llndex. (Parties to Actions, on contracts and promises — continued.) itcntiary, school districts, und townships, 16,17; when sureties sue their principal, 330; when the contract is made by an a^ent or servant, 17; when a mistake of the name of the plaintiff is made in tlie contract, 17. 43,4. effeet of mistake in making parties plaintiff, 19. 24. effect of mistake in the names of the right party, 43,4. who to he Defendant: in general, 19; when contract is joint and several, or joint only, 19,20; when contract is joint &c. and one or more die, ib. when contract is made by a partnership, 374; when contract is made by one partner in the name of the firm, and without authority, 372; when contract is made by an agent or servant, 1 9 to 22 ; when contract is made by a township, school district, or other corporation, 20; or by a person under a ficti- tious name, 43; or by a guardian, 333; or when a mistake of the defendant's name is made in the contract, 17. 43,4. for wrongs: who to he plaintiff; when the property injured, taken or destroyed, was in possession of one and owned by another, 12. 17,18; or is owned by two or more jointly or separately, 18,19; or the inju- ry was done before or after the decease of the owner, 18; or the action is for trespass to land, 465,6; when guardian may sue in his own name, 333. effect of mistake in making parties plaintifl*, 19. 23. effect of mistake in the name of the right party, 43,4. who to he defendant; when the injury is done by an agent, appren- tice, laborer, or other servant, 21,2; when two or more did the injury, 23; when one has aided or procured another to do an in- jury, though not present, 23; when the party who did the injury dies, ih. effect of mistake in making parties defendant, 23. effect of mistake in the name of the right defendant, 43,4. one party, if willing, may be sworn and examined by the opposite party, 61. a party may be a witness in his own cause to prove his account, 187. (See Account and account book.) so, to prove the loss Of, and search for, a paper, to excuse him from producing the original, 78. when privileged from arrest for debt &c. 28 to 30. how' they should be named in the summons and on the docket, 32. 115. Partners and Partnership; what constitutes a partnership, 367. to allow an agent or clerk a portion of the profits may not make him a partner, 368 n. 1. who is a dormant partner, ih. n. 2. when common carriers of goods, or stage proprietors, are deemed partners, 249. each partner liable for debts &c. of the firm, even though stipulations to the contrary in the articles of partnership, 368. how a partner may limit his liability, ib. who may be charged and sued as a partner for the liabilities of the firm, though not a partner, ih. secret partner is liable, ih. poiccr of one partner to bind tlie firm; by drawing, indorsing, or ac- cepting a bill of exchange or promissory note, 369 ; or doing any Index.'] PAU 583 Partners and Partnership — continued. other act coming within the scope of partnei-ship business, even though such partner abuse the power confided to him, 370; excep- tion to this rule, 371,2. one parl7ier cannot hind the firm; by act not relating to or coming within the scope of the partnership, unless the firm consents to it, 370 ; nor by entering into a contract of surety or guaranty, 372 ; nor by a sealed instrument, ih.; [the partner who seals the instrument may be sued, il>.;'\ nor by a submission to arbitration, ih.; [excep- tion, tJ.;] when the other partners forbid the act, and the person for or with whom the act is done, has notice thereof, 571. how a partnership may be dissolved, 372. notice of dissolution must be given, or partners liable for subsequent contract, 373. effect of dissolution upon the liabilities and powers of the partners thereafter, 373. 391. decease of partner dissolves the partnership, and vests all powers and rights in the survivor, 372,3. by discharging one partner all are discharged, 368. when admissions of one partner will bind the firm, 372,3. 362. not, in general, if made after the dissolution, 373. notice to one partner in matters relating to the partnership business, is notice to all, 372. one partner cannot sue another in matters relating to the partnership, 375; exception to the last mentioned rule, /Z». suit hy and against; how they should be named in the summons, 32. 374 note 1 ; form of entry on the docket, 118; cannot in one suit join a claim due to or from them as partners with a claim due to one of them, 13; unless the suit is by or against a surviving part- ner, 13,14 ; what dem.ands may be set off by or against them, 443,4 ; plaintiff must prove the partnership or be nonsuited, 374; how the partnership may be proved, 375; if plaintifts sue as partners, and one or more are omitted, they must be nonsuited, 374; when plain- tiff sues as surviving partner, what he must prove, ih.; one who in fact had no partner, may sue alone, ih.; dormant partner need not be joined in the action, ih.; effect of omission of partner as de- fendant, ih.; if defendants are not all partners, plaintiff must be nonsuited, ih. execution against; when against one partner for his private debt, how executed against property of the firm, 375; when against the firm, how executed, ih. Part Owner. See Parties to actions. Part Performance of a Contract; right of parties when the contract is for the payment of money or property, and part of the money or pro- perty is paid, 428,9; when for labor for a fixed time, and part of the labor is done, 471 ; when to do a particular piece or job of work, and remains unfinished, 472. 474; when for building, and not com- pleted, «Sic. 473. Passenger Carriers. See Stage Proprietors. Patent for Lands; its execution need not be proved when offered in evi- dence, 30G. copy from land ofTicc, or certified copy from recorder's office, may be received in evidence, 306. Pauper; when ])erson may recover from the overseers of jtoor, money ex- pended for, 9. 584 PHY [Index. Pawnbrokers; their rights, duties, remedies, and liabilities, 242,3. Pawnor and Pawnee; wiio arc so called, 242; their rights, &;c., 242,3. giving up the pledge will discharge the surety of pawnor, 329,30. Payee; is the person to whom a note, bill of exchange, or negotiable bond, is made payable, 381.383,4. Payment; (see Tf.ndcr;) the dillbrence between payment and set-off, 376. to whom it may be made, 378. money sqnt by mail and lost, 379. may be proved by a witness, though a receipt w.as given, 80. of a bond, is in general presumed after t\Venty years, 68. how this presumption is destroyed, ih. receipt for rent last due, is presumptive evidence that previous rent was paid, ih. when payment of part of a debt in discharge of the whole, will dis- charge the whole, and when not, 183,4. when payment of i)art of a debt, or interest, will revive a debt barred by the statute of limitations, 36 1,2. remedy of a party who receives counterfeit bills, or bills of a broken bank, in payment, 378 n. 1. the rights of the assignee against the assignor, when claim against another who is insolvent, is transferred as a payment or in ex- change, 213. when money paid in performance of a contract may be recovered back, 9. when money or property paid under a mistake as to facts, may be re- recovcrcd back, 282 to 284. when payment ol' an unjust claim, or more than due, may be recovered back, and when not, 282,3. money paid on unjust judgment cannot be recovered back, 283. judgment against a wrongdoer for the value of goods, and payment thereof^vests-.ttic goods in the wrongdoer, 12. 23. 467. how surety may recover from principal and co-sureties, 330 to 332. when two debts owing by party paying, to which the payment must be applied, 376,7; cannot, in such case, be applied by creditor to disphargc a debt created after the payment, 378. Peace, Recognizance to Keep; when it may be required, and proceedings in such cases, 495,6. Penal Action. See Penalties. Penalties; action of debt may be brought for penalties, 11. 481; must, in general, be brought within one year 358; in whose name to be brought, and how commenced, 491,2; how parties should be de- scribed in the writ, and on the docket, when suit is brought for, 32. 491 ; who liable for fees in action for, 112,13. appeal lies from judgment for, 123. stay of execution allowed on judgment for, 132. informer cannot discharge defendant from custody on execution for, 170. in suit on bond with penalty, what amount can be recovered, 384 n. 2. Penalty of Bond; nature and effect of, and what amount can be recovered, 384 n. 2. Penitentiary; in suits relating to, how to sue, 16. Performance of Contract; (See Contract — Tender — Sales.) Perjury ; how proved, 66. Physicians; are liable for improper prescriptions, &c. if it arise from want of common professional skill, 241. Index.^ PRO 585 Pictures ; seller of indecent pictures, or such as are corrupting to the morals, cannot recover their price from the buyer, 288. Plaintiff. (See Parties to Actions — Evidence.) Pledges and Pawns. (See Pawnor and Pawnee.) Porters; ai-e common carriers of goods, and liable as such, 248. (See Carrier of Goods.) Positive Evidence; what is, 68. Possession; is presumptive evidence of ownership, ti. sufficient, without ownership, to entitle an officer or other person to sue for a trespass to personal property, 12. 151,2.356; but if the value of property is recovered, owner cannot afterwards sue, 23,4. effect of possession by one joint owner upon the rights of the other, 1 8. when proof of the possession of goods by a judgment debtor, shows the return of a constable of " no goods," false, 158. when officer should take goods into possession on levy, 149,50,1. 153. when retained by seller or mortgagor will be deemed fraudulent, as against his creditors, 318 to 320. when necessary to maintain an action of trespass upon lands, 465,6. Power of Attorney ; (See Agents and Servants;) form of, to sell lands, 507; to lease lands, ib.; to collect debts, ib.; to confess judgment, 508. made while in custody, to confess judgment, how to be executed, 285. when relating to real estate, how to be e.\ecuted, acknowledged, and recorded, 501 to 503. form of acknowledgment of, 191. the power to act under it ceases on death of person executing it, 21. Premium on a Loan. (See Interest.) Precept; form of, for the body of defendant when in jail on an adjournment of a cause, 53. Presumptive, or Circumstantial Evidence; what is, 67. (See Evidence.) Principal and Agent. (See Agent.) Principal and Surety; (See Sia^etij;) who is called principal, and who surety, 32.1. ' ' '"'■'^ "" "" Printers. (See Mechanics.) Prisoner; (See Arrest — Escape — Warrant — Mittimus — Capias ad Bes- pondendum — Execution;) confessions by, when they may be receiv- ed in evidence, 73,4. warrant of attorney by, to confess judgment, how to be executed, 285. what contracts made by, while imprisoned, will be binding, and what not, 284,6. Private Papers; cannot be taken on execution as goods and chattels, 147. which need not be produced on trial, 80. Privilege from Arrest; who are, and when, 28 to 30. summons should issue against persons so privileged, 28. liability of justice for issuing capias or execution for body, 167 n. 3; if such process issue, in what cases it may be served, 167. Process. (Sec Commencement of Suit — Summons — Warrant — Execution — Scire Facias — Venire — Capias ad Respondendum — Mittimus^ Src.) Prochein Ami. (Sec Infant.) Proclamation; how to Ix; made, when there is an unlawful assembly, or riot, 497 note. Promise. (See Contract.) Promiss(^r, and Promissee; who are so called, ItlO n. 1. Promissory Note; (a.s to transfer, (Sic, of claims not negotiable, see .^s^i^n- ment of Claims nol Negotiable;) form of, 512. 383. 75 686 [Index. Promissory Note ■ — continued. parties thereto described, 383. when hahiiice (Uie on, is less than one hundred dollars, may be sued before a justice, 6. may join in one suit ditlcrcnt notes, d:c., and other ckiims against tho defendant, 13. when capias may issue on, 27. when it must be filed with tho justice, and indorsed and retained ])y him after judgment, 40; wlien appeal taken must be filod with clerk of court, 125. defendant's signature must bo proved, if he files affidavit denying it, 82; form of aflidavit, entry on the docket, &c., in such case, 81,2. bank must sue drawers and indorsers jointly, or pay costs, 264. made by infant, void, 347. interest on, rate of, and when to commence, 351,2. See In/crest. effect of a third person (not the transferrer or holder) indorsing his name on it as surety, 327. 325. surety in; how discharged; by the holder making a new bargain with the principal, 328,9; by concealment of the risk from tho surety, &c. 329; by holder giving further time to the principal debtor to pay, ih. by holder giving up other security, ih. by holder not suing j)rincipal when notified in writing to do so, il). his reme- dy against his co-sureties, 330; when liable to the surety for the stay of execution, 332; not liable to tho special bail of the princi- pal, ih. not liable to the guarantor of the note, ih. is liable for in- terest, 328; one who transfers by indorsement is not, in_general, deemed a mere surety, 416; when surety signs his name on the back of the instrument, how liable, 325. 327. requisites of; as to the date, 385; good, though made on Sunday, ih. to li'hom jxiijable; may be to bearer only, ih. when to a fictitious per- son, ih. AiiJinn name of payee is blank, ih. when a mistake is made in the name of the payee, 386. the words "order," "bearer," or "assigns," or "to the order of" a person, ih. in what it must be payable, 387. %ohen payable; to be negotiable must be payable at some period, or ujjon some condition that must happen, ih. if no time mention- ed, is payable immediately, 388; if payable after date, and has no date, ih. time of payment cannot be varied by proof of mistake or a different intention from that expressed in the instrument, i&. if due a certain number of days or months after date or on de- mand, 392. 402. (See Days of Grace — 7"/???^.) the words 'for value received' not necessary, 388. maker of; is the person who signs and executes the note, 383; no demand on him in general necessary before suit, 397; not discharg- ed by delay of demand, ih. but demand on him necessary to render indorsers liable, 398. 404; not in general liable for the costs of the indorsers, 398; when liable to an innocent holder who received it from a thief, &c. 418. who 7nay transfer or indorse, 390,1. how transferred : when by delivery only, and when the note must be indorsed, 393. 395,6; when the payee is a fictitious person, 389; cannot be transferred for part only of amount due on it, 389. indorsement of; who to make, 390. 370; form of, 391,2; form of, by an agent, 391 ; no particular form for, required, ih. in blank, how Index.'] PRO 587 (Promissory Note, indorsement of, — continued.) made, and its elTect, 392,3. 384; may be filled up by the holder so as to make it payable to any one, 393 ; may be stricken out by the holder of the note, «Z>. if stricken out by mistake, it .will not dis- charge the indorser, ih. in full, what its legal effect, and the form thereof, ib. when so made, what will divest the indorsee of his le- gal title to the note, 393,4.418; may be canceled by the holder of the note, 393; so as to prevent its negotiability, how made, and by whom, 393,4; waving demand and notice of non-payment, how made, 394; without recourse on the indorser, form of, ib. directing the money to be paid to the use of the indorser, its cticct, ib. indorser of; is the person who transfers a note by indorsement, 382; conditions upon which he is liable, 401; not liable unless due de- mand is made of maker, and he has notice of the non-payment by the maker, 398,9; liable only to the person to whom he indorses, and to those to whom the note is (fierwards transferred, ib. may take up the note by paying it, and then suing all previous parties, 398; need not in such action produce receipt or reindorsement, 400; when an indorser is paid by an indorser, all who indorsed after the party did who is paid, are discharged, 399 ; cannot recover his costs from the other parties, 400; cannot recover from co-indorsers a rateable share of amount paid, ih. exception to this rule, ib. who pays and takes up the note may negotiate it, ib. if he pays note is entitled to its possession, ib. always warrants that the note is not forged, 418; is discharged from liability by the holder delaying to jflfiake demand of payment of the maker, 403; is discharged by not receiving due notice of such demand and non-payment, 398. 404. transferrer of, by mere delivery without indorsement, when liable, 400,401. must have notice of the demand upon, and non-payment by the ma- ker, 409. -• liolder of; is the payee, indorsee, or other party, who, for the time being, ow'ns and holds the note, 382. may sue all the })arties at once in separate suits, 399,400. how he should proceed to save his costs, 400. at jvhat time demand to be ?}iadc; when note is payable on demand, or negotiated after due, or no time of payment mentioned in it, 401. when the time of payment is stated in the instrument, 402,3. must be made during the usual business hours, 404. how demand to be made; the note should be produced, 404. may be made by any person who has possession of the note, ib. when the maker has gone from home, ib. when he has changed his residence, or absconded, or gone out of tlie State, ib. when the note is expressly made [jayable at a particular place, ib. demand of payment need not l)e made, when party promises to pay, who was discharged for want of demand, 40fi. when the maker has absconded, or moved out uf llu slate, or can- not, on due inquiry, be found, ///. when the note is forged, or givf^n for a gambling debt, 409. when delay in making demand will be excused, 408,9. notice of non-paymeni : must l)0 given to indorsers or tiiey will be dis- charged, 398. 404; transf(;rrer of note by mere delivery without indorsement, is disfliarg»'d mdess he has notice, 409. 588 REc [Index. Promissory Note ; not ice of non-payment — conlinued. when it should be given, 406 ; how it should be given, 405. what the notice should contain and the forui thereof, ib. to whom and l)y whom it should Ix; given, 407. in what cases the notice need not be given, 407,8. (See Accomniodalion paper.) in what cases dc/ai/ in giving the notice will be excused, 407,8. etFect upon liability of parties when note is negotiated after it is due, 411,12. when demand should be made upon the maker in such case, 400,1. blank note with signatures, liow it may be fdled up, 309. when good, though not Idled up according to agi'eement, 389. if note payable on demand, when due, 308. when interest commences on, in such case, 351. when demand to be made to charge indorsers in such case, 401. when payable at a particular place, when demand necessary at the place, 386; is necessary at the place to charge indorsers, 404. statute in relation to bail and sureties, not applicable to indorser of note, 416; exception to this rule, ib. when and what parties discharged by one giving time to, or rcleas ing or discharging another, 414,5. the rights and obligations of the parties, &c., to a note that is stolen, lost or destroyed, 416; how demand made on a lost note, 404. rights of innocent holder of such note^ 417,18. rights and liabilities of parties who make or indorse a note for the mere accommodation and benefit of another, 414. 408. 400. the principal debtor is, in such case, liable for the costs, 331. 400. defence to an action on: by the payee against the maker, 410; or by the indorsee against his indorser, ib. or by an indorsee against the maker, 410 to 412; or by an indorser against an intermediate in- dorser, ib. or when the note is payable on demand, 412,13; or on accommodation paper, 414. days of grace, what they are, 402; when allowed, 402,3. Property. See Ownership of j>ropertij. Proof. See Evidence. Pi'osecuting Attorney; not bound to attend to cases of bastardy, 268 n 1. Prostitution; contracts founded on, when void, 288. Public Enemies; who are deemed, 250. carrier of goods, not liable for loss occasioned by, ib. Publication. See Advertisement. Purchase and Purchaser. See Sales — Ownership of property. Putting off Trial. See Adjournment. Questions. See Leading questions. Qui Tam Actions. See Penalties. Quit Claim Deed ; form of, 505. general requisites of deeds &c. affecting land, 501 to 503. Raft. See Drifts. Rasure. See Erasure. Ratification of Contract. See Contract — Infants — Partners, SfC. Real Estate; (see Laiul — Deed — Crops — Lease — Landlord and tenant;) actions on contracts for, cannot be brought before a justice, 7,8. but suits for trespass may, ib. (See Trespass upon land.) Recaption of Prisoner; in what cases, when, where, and how it may be made in civil cases, 170. 36; in criminal cases, 483. Lidex.^ SAL 589 Recommendation. Sec Fraud — Letter of Credit. Receipt. See also Release. when in full of all demands, its effect, 85,6. 190. payment may be proved by a witness, though the party has a re- ceipt, 80. for costs, must be made out when requested, 111. for rent last due is presumptive evidence that former rent was paid, 68. . Recognizance. See Bail. Records and Transcripts. See Authentication of copies of records a?id transcrij)ts. Recovery, former. See Judgment. Refei'ence to Arbitration; when suit before a justice may be referred to arbitration, and proceedings in such case, 202 to 205. fees for entering same on docket, and for copy, 108. Release; when release of one of two or more joint debtors or wrongdoers will release all, and when not, 187. so, release of principal will discharge the surety, 328. form of; of all claims and demands, 513; [effect of such release when under seal, 190;] by a party to a witness to divest him of interest, 61 ; by a witness to a party to divest witness of interest, 62; quit claim deed, 505. Rent; when reserved in kind, landlord has lien on crop, \bQ. Replevin; action of, cannot be brought befoi-e a justice, 8. Reputation of Witnesses; 'when and how, and by whom, it may be nn- peached, 64,5. Request. See Demand. Rescinding Contract; how and when it may be done, and rights of parties thereafter, 428. 439. 425. 435. Rescue; when prisoner on a capias is rescued, the officer not liable, 37. whether, when prisoner on an execution is rescued, the officer is lia- ble therefor, 168. 171 n. 8. form of return by officer of rescue, 171 n. 8. Resident of a County; who is not a freeholder or householder, may be sued in any township, 26. but must be sued in his own township, if a freeholder or householder of the county, 25,6. Resignation; of a justice of his office, how made, 4. Restitution. See Forcible Entry and Detainer — Claimant. Returns to Process. See Suimnons — Capias ad Respondendum — Execu tion — Scire facias — Mittimus — Warrant — Forcible Entry and Detainer, Sfc. Reward; (sec Strays — Drifts;) offered by advertisement, may be re- covered, 9. Right of Property, Trial of. See Claiinant. Riot; who may suppress, and how, 497 note. Road. See Highway. Rocks; when carrier of goods liable for loss occasioned by, 251. Sabbath; arrest on civil process cannot be made on, 34. contracts good though made ami dated on, 385. Sales. Sec Tender — Warranty — Fraud — Lien — Execution. when a sale is complete so as pass tlu; ownership of property with- out delivery to the buyer, 422 to 425. proposition on one side, and accentance on tlie other by letter, 423. 590 llndex. Sales — continued. order for property, when l)in(]ing and wlien not, 424. order for inakiiiff an article, when the article is the buyer's, ii. where the materials, or a i)art, are ibiuid by the manufacturer or em- ployer, whose they are when worked up, 424,5. effect on sale, if the property is burnt or destroyed at time of sale, 424. property obtained by sale under false pretences, may be recovered back, 425; but not if sold by the fraudulent buyer, ih. place of demand and delivery of goods contracted to be sold, 425,6. no excuse for nondelivery by the seller, that the buyer was not at the place to receive them, 427. when demand is necessary before suit brought, 425,6. mode and time of day of making demand and tender, 427,8. at what time property taken on trial must be returned, 440. in suit for price, defendant may reduce the recovery by showing fraud in the quality, or false warranty, 440. 432. (See Fraud — War- Tanly.) when buyer may show in such action, that the plaintiff had not title, 437,8. effect on rights of parties by due tender of it, 460,1. 429,30. what seller may do with the projierty after the tender, 429,30. damages in such cases, 430,1. (Sec^ Tender.) of the lien of seller for the price of goods sold, 356,7. (See Lien — Mechanics.) when buyer fraudulently intends not to |)ay seller, he may recover back the goods before the credit expires, 360 n. 2. effect of payment of judgment against a person who wrongfully "tWces and keeps an article, 12. owners right is not divested by finder, thief, or other person wrong- fully selling the article, 23. 425. liability of an assignor who buys property with a note or other claim, 210,11.409. liability of the seller of a note, account, or other claim, tranferrcd without indorsement, 300,1. 212,13. 409. promise by a third person to pay for the goods, must be in writing, or it will be void, 322,23. when master liable for goods sold to his servant, 22. when infant liable on his purchase, and when not, 346 to 348, when husband liable on the purchases of his wife, and when not, 338,9. when parent liable for goods furnished to his minor children, and when not, 365. when sale by a debtor will be deemed fraudulent and void, as against his creditors, 318 to 320. (See Frauds.) how strays are sold, 450. Sample, Sale by. See Warranty. Satisfaction. See Accord and Satisfaction. fees for entry of satisfaction of suit on docket, 108. Schedule. See Execution — Attachment. School District; by what name it should sue, 17; by what name sued, 20. how summons served on, 32. School master; may whip his pupil moderately, 493. Scire Facias. See Execution — Appeal — Constable. when to issue; on recognizance for stay of execution, 134,5; on trans- script for the benefit of the surety for stay, 137; on recognizance Index.l SET 591 Scire Facias, tuJien to issue — continued. of appeal, 125,G; on bond executed by claimant of property ta- ken on attachment, 224, n. 1 ; on the docket of another justice, or one whose office is vacant, or on transcripts therefrom, 178,9; a- gainst a constable for making false return, failing to make return, or refusing to pay over money, 273; against sureties of constable, 275. 273. requisites of, 126. for7n of; on recognizance for stay of execution, 135; (see Execu- tion;) on recognizance of appeal, where appeal is dismissed, 127; when judgment rendered agamst the appellant, 127; (see Appeal.) on transcript from the docket of another justice, 180; on bond of claimant of property taken on attachment, 224 n. 1 ; (see Attach- ment;) against a constable for a false return &c. or refusing to pay over money collected, 273; against the sureties of a constable, 276; (see Constable.) how served and returned generally, 126. 136. when justice may proceed to render judgment on a return 'not found,' 178. 180. how and by whom served in a suit against a constable, 273. fees for issuing, 107; for service and return, 108,9. when issued on a judgment, defendant cannot set up a defence that existed before the judgment, 179. docket entries in; wlien the proceeding is on recognizance for stay of execution, 136,7; or on a recognizance of appeal, 128,9; or on a transcript from, and on the docket of another justice, 181. Scnmrl Seal; of ink, is valid, 384 n. 1. Seal; may be made of wax, wafer or ink, ih. n. 1. what is an official seal, 92 n. 7. Search Warrant; form of affidavit whereon to issue, 480. when and in what cases it should be issued, ib, form thereof, 481. how it may be served, 482,3. liability of officer for neglect, delay, &c., 483. form of return to, 4S4. fees for issuing, 107; for service and return, 108,9. Security. See Bail — Surety. Security to keep the Peace; when it may be required, and form of pro- ceedings in such cases, 495, to 497. Servant. See Master and Servant — Work and Labor. Service of Process. See Summons — Capias ad Respondeiulum — Scire Facias — Execution — Warrant — Mittimus, Sj-c. Services and Work. See Work and Labor. Set off; (see Damages-^ dilference between set off and payment, 376. evidence of defendant's set off must Ix; confined to his bill of partic- ulars, 38. See Bill of Particulars. form of judgment when a set ofl'is allowed, 105. in what actions the defendant may 1x3 allowed to make a set off, 441; what demands may set off, ib.; must be licpiidiited demand, ib. n. 3; must }je due at commencement of .suit, 442; must be owned by de- fendant at commenc(;nient of suit, ih.; but when suit is by an ad- ministrator or executor, the set off must have Ix^en due and own- ed by defendant Ix-'forc tlic death of the decedent, /'/;.; the debt sued on and the set off, must be due and owning in tiie same right, 592 s T A [Index. Set Ofl' — contimied. 442,3; therefore debt fine decedent, cannot be set off against debt due his executor or administrator, 443; nor can demand due execu- tor or administrator be si't oil" against demand due the estate, ib. when demand which agent owes may be set oil" against a debt due to his i)rincii)al, &c. and when not, ih. wlien separate debt, due to one defendant, may be set oif against a joint demand (hie by all the defendants, and when not, 443,4. as to set off of debts due by or to a partner, in suit by or against the firm, 443,4. what claims arc not negotiable, 210. whether in a suit on a claim not negotiable, the defendant may set off a claim due him from the assignee, 215. whether the defendant may set off a claim against the plaintiff, not negotiable, which has been assigned to him, 212. whether the owner of goods may set off against the freight, the injury done them by the carrier, or damages arising from delay in trans- portation, 254 n. 1. the assignment of a claim not negotiable, does not bar the debtor from his set off of a demand he held against the assignor before notice of the assignment, 215. when set otf is allowed in suit on a negotiable bond, promissory note, bill of exchange, and when not, 411 to 414. Settlement; is not evidence that items not mentioned, were settled, 190. when it may be corrected by proof of mistake, and when not, 190. 282. by an administrator or executor with the court, its effect on claims not before presented, 192. within what time an action should be brought on a balance found due on settlement, 362. (See Account stated.) Sheep. See St7~ays. Sheriff; privileged from arrest for debt, and when, 29. 139. liable for escape, if no one at jail to receive a prisoner, 167. trial of right of property taken by, with forms, &c., 468 to 470. Signature. , See Evidence — Blank Signature. Silver Coin; which are a legal tender, 456,7. Simple Contract. See Contract. Single Bill; what is so called, 384. Slander; action of cannot be brought before a justice, 8. Snags; when carrier of goods liable for loss occasioned by, 251. Soldiers; of the revolution, and those in the service of the United States, privileged from arrest, 29. 139. Special Bail; who are so called, 332 n. 3. cannot recover from surety of defendant, the amount they pay, 332. Specialty; what is so called, 281. Stage Proprietors; (See Stat.]). 864;) who are deemed partners, 449. must carry all passengers, if there be room, &c., 255. their duty as to good coaches, horses, and drivers, 255,6. ■ liable if they overload coach, 256. liable for acts of servants, agents, drivers and partners, ib. what is deemed negligence, &c., of drivers, and what care must be taken to prevent accidents, 256,7. must take care of baggage, 256. liable if baggage is lost, 257,8. Index.} STR *93 Stage Proprietors — cuntiiiued. have a lien on baggage for fare, and may demand it in advance, 258. where to leave passengers at the termination of their journey, 267. State Warrant; when it should be issued, 480. constable bound to receive it, 483. form of, 480,1. how served, 402,3. liability of officer for delay, escnpc, &c. 483. return to, 37. 483,4, Stay of Execution; when allowed, and v.hen not, 131,2. for what time allowed, 132. when and how to be obtained, with form of recognizance of, 132,3. no delay in issuing execution to give defendant time to enter into such recognizance, 133; but if execution has been issued, justice must recall it, and how, 133. when second recognizance for, may be required, 134; which recogni- zance to be first prosecuted in such case, 135. surety for stay of; how made liable to judgment, 134; execution must be first issued and returned against defendant, before proceed- ing agaizist surety, 134; effect of death of defendant on his liability, ib.; form of scire facias against, and how prosecuted, 133,6; may be proceeded against if in the county, 5; may have execution issued on the original judgment, 133,4. 137,8,9; may sue defendant on a transcript of judgment, and how and where, 137; when he may re- cover from the surety of the defendant, 332; justice not bound to issue execution after the stay expires, unless requested, 139; effect of defendant staying proceedings, after a levy, 154. 153 n. 7- en- tering stay does not prevent defendant from entering appeal, 124. Steamboats; (See Carrier of Goods.) when collision between, which liable for damages, 258. duty of those entering port to prevent collision with those in port, 259. when they must give way in favor of vessels using sails only, ib. Stock in a Corporation; cannot be taken on execution, 147. Stockholders; cannot be permitted to testify for the corporation, 60. Stolen Property ; thief cannot transfer the ownership of goods, 425. 23. 240. when he can transfer a negotiable instrument so that the holder can, and the owner cannot recover on it, 418. when he can transfer a bank bill or bank check, so that the owner will not be entitled to it, 420. Stoned Horse; when he may be taken up as a stray, 452. rights of owner, and proceedings of taker up, 452,3. Stopping Goods by Seller. Sec Lien. Strays. See Drifts. forms relating to; advertisement, 445 n. 1; oath of taker up, 446 n 1; order to appraisers, 446 n. 2; oath to a])praisers, 447 n. 1; re- turn of appraisement, ib.; bond of taker up, 448 n. 1; warrant for taking stray from taker up, and return, 448,9, notes; nomination of freeholders to estimate allowance to taker up, 450 n. 1 ; return of freeholders, 450 n. 2; bond of purchaser of stray, 451 n. 2. record book of" strays must be kept by justice, 454. to whom l)or)k to ix; delivered when his office is vacated, ib. copies from, Ijy his successor, evidence, I'i. who may take up, what may be taken up, and when, 445. 447. 45t. when, and how, and where, in general, advertised, 445. 76 o94 SUM l^lndcx. Strays — continued. oath of taker up, and what it should bo, 445. effect of not advertising or making the oath, 446. when justice to order ai)praiseinent of, ih. taker uj) to give notice to appraisers, 447. , ,;• taker up of, must deposit money with justice, ih. what justice to do witli it and the appraisement, ib. SJ. who may take up, if running without settlement, ih.; proceedings thereon, 447 to 449; duty of constable in such case, 449. when owner is entitled to strays, and on what conditions, ib. what reward to taker up must Ik; ])aid by owner, 449. 'J 52. when parties disagree as to keeping, how to j)rocecd, 449,50j or owner will not pay allowance, 450. when taker up entitled to stray, 450. when and how sold, 451. when owner entitled to purchaser's bond or proceeds of sale, 451,2. how they must be kept, and effect when abused, &c., 452. when stoned horse may be taken uj), ih.; proceedijigs in such case, and right of parties, 452,3. effect upon strays by new township being laid off, 453. what ordinances may not bo made by towns and villages, 454. penalties for ommission or commission of an act in violation of the statute, and how prosecuted, 454. fees relating to; justice, clerk and printer, 447; constable, 450,1 ; free- holders and appraisers, 453. Sub-agent. See Agent. Submission to Arbitration. See Arhitrament and Award. Subpoena, See Witiiess. forms of; in suit pending before a justice, 53; when party desires a witness to bring papers, 54 note 1 ; when deposition is to be taken, 88; in criminal cases, 485; when issued for coroner's inquest, 294 note 3. substance of, when depositions are taken to contest an election, 298 note 1. may be issued for a witness, and served in any township of the county, 5. 64. how served and returned, 54. fees for issuing, 107; for service and returns of, 108,9. Subscribing Witness; when he must be produced to prove the instrument, 83,4. (See Evidence.) Suggestion of Lands; when and how made, 162,3. Suits. See Commencement of suit — Action — Parties to actions. Summons; what is, 25. when it is the first process, 27,8. against a person of another township or county, 25,6. when defendant is privileged from arrest, 28. requisites of, and its indorsements, 31. how parties should be described in, 32. 374 note 1. -^ what action should be named in, 31 ; in conimon suit, with the indorse- ments, ih. form of, in common suit, with the indorsements, ih. within \\jhat time, and how served, 32,3. when and how returned, and form of return, 33. form of, to arbitrators, 203 note 2; how served and returned, 203. Index.'] sun 0^5 Summons — continued. form of, against a master, for benefit of apprentieo, 198 note 1 ; is served and returned as in other cases, 198 note 1. substance of form of, for a master against apprentice, 200 note 1 ; is served and returned as in other cases, 198 note 1. form of, in forcible entry and detainer, 311; when served and return- led, 302. rees for issuing, 107; for service, 108. Sunday; arrest in civil case cannot be made on, 34. contracts, ^c. good, though made and dated on, 385. Surety. (See Guaranty — Letter of credit. As to bail for costs, appear- ance on adjourned day of trial, appeal, stay of execution, &c. see Bail — AjtpeaJ — Stay of Execution.) when he cannot be a witness for his principal, 60. his remedy against his principal, 330,1. when sued with his principal, it may be certified which Is surety, 105; but not if surety is sued alone, ih.; form of such certificate, 106; form of execution in such case, 142; when no stay of execu- tion is allowed in suit by surety against principal, 131; when no appeal allowed in such case, 124. when^ and how, and for what, sureties of constable proceeded against, 275. 273. (See Constable.) when, and for what, sureties of justice liable, 164,5. contract of surety will, in general, be void, if not in writing, 321,2; what is sufficient agreement in writing, 326 to 328; cannot be made out or changed by verbal evidence, 327. proposition to guaranty not sufficient, unless accepted, &c. 326. promise of surety need not be in writing, when creditor releases a lien on account of the promise of the surety, 322; nor if new con- sideration arises on the promise of the surety, ih.; nor where ihe credit is given and the debt contracted by him, 323, nor where the promise is to the person who owes the debt, 323,4; nor when the promise of the surety extinguishes the original debt, 322; nor where the depositary of money promises to pay it over, 324. when and how a partner may bind the firm as surety, and when not, 371,2; if partnership not bound, the partner who signs will bo, 372. contract of surety will, in general, be void, if not founded on a suffi- cient consideration, 325; consideration, when surety engages with, or at the time the principal does, t6.; when surety engages for pay- ment, &c. of a prior claim, ih.; when the promise is founded on a past consideration, li.; whether the consideralion must appear in the writing, 327,8. effect of blank indorsement on a claim, 327. (Sec Blank Sii^naturc.) extent neral, 109,10; in cases of forcible entry and detainer. 313. 106. ' Teamsters; are liable as common carriers, 248. (See Carriers of Goods.) Tenant. See Landlord and Tenant — Forcible Entrij and Detainer. Tender; (See also Payment;) at what hour of the dav a tender should l)o made, 427,8. in what cases, after an injury, or after breach of a contract, and be- fore suit, tender may be made with effect, 455. in all cases tender after breach of contract, or after injury done, can be made after suit is commenced, by bringing money and costs into court, 455,6. 461 ; form of proceedings in the last mentioned casas, 461,2. on a. contract of sale; where, and when property to be delivered 426,7; what the seller may afterwards do with the property, 429,30; the seller's and buyer's remedy after tender and refusal, 430, 1. 460. 461 ; form of entry on the docket in such case, 460 n. 1. on contract for labor; when and where to be made, 456 ; the remedy of the parties thereafter, 460,1 ; form of entry on the docket in such case, 460 n. 1. for a trespass, when and how made, 455. 459; its effect, and form of judgment in such case, 459 and n. 3. on contract for payment of money, and generally; when it may be made, 455,6. 427; to whom and by whom it may be made, 456; in what kind of money, 556,7; what amount, 457; in what cases the money must be produced, 457; offer to pay without having the mo- ney to produce, is no tender, 458; it must be unconditional, 7Z1. general effect offender is only to save interest and costs, ib. the tenderer must always afterwards be ready on demand to pay, 458. the tender of money is of no effect unless amount is deposited with justice, 458,9. 461. "^ when the fees of witnesses should te tendered, 64. effect of tender of amount of freight on the lien of the carrier, 254. bill of a bank must be received on an execution in its favor, 264. Testament. See Wills. Testamentary Guardian. See Guardian and Ward. Testimony. See Evidence. Index.] T R K 597 Thief. See Stoh7i property. Threats; when person may be recognized to keep the'peace on account of, and proceedings in such case, 495 to 498. payment of unjust claim under threat of suit, cannot be recovefed back, 282,3. when contract made under threats may be avoided, 285. Timber. See Trees. Time; how computed, when years, months, or days are mentioned in a .statute, note, or contract, 157 n. 12. 388. 402. Title. See Ownership of property — Stolen property — Possession— Trespass. suit where the title of lands may be brought in question, cannot be brought before a justice, 6. unless the suit is for trespass or forcible entry and detainer, ib. tenant cannot dispute the title of his landlord, 304. how it must be proved in an action of forcible entry and detainer. 304 to 306. Toll; when more than is due is demanded and paid, may be recovered back, 283. (See Sfaf. p. 585.) Tools; what are exempt from execution, &c., 146. Towns; what ordinances may not be made by, in respect to strays, 454. Township; (See Trustees of Tuicnship.) when liable to a person for support of pauper, 9. when liable for costs of contested election of justice, 3. in what name to sue and be sued, 17. 20. how judgment against, may be collected, 138 n. 1. constable to preserve peace, &c., at township meetings, 271. and to give notice of meeting, and how, ih. effect of setting off new township, upon strays before taken up, 453. Trade; contracts in restraint of, are void, 289. Transcript; form of certificate to authenticate, 179. fees for certificite and transcript, 108. who entitled to, 177. who may certify, so as to render it evidence, 79,80. the docket of an absent, deceased, or ex-justice, when and how evi- dence, 177. liow to proceed to carry into execution the judgments, 6^c., of an ab- sent, deceased, or ex-justice, ih. how to proceed on, by suit, generally, 178,9. form of scire facias on, and how served and returned, 180, docket entries in proceedings on, 181. for an appeal; when to be filed in court by party appealing or other party, and proceedings thereon, 125 n. 4. must Ix' made out with recognizance of bail, and delivered to jip- pellant on dcn^and, 125. how made upon suggestion that debtor has lands, 162,3. Transfer. See Assignment of d aims not negotiable — Promissory Note — Bill of exchange — Negotiable bond — Sales. Travelers. Sc^c Stage proprietors. Trees; when they may be taken and sold, and when not, by purohaj^cr of land, 464. when cut down by a trespasser they belong to the landlord, 467. Trespass; (See Real estate — Joint wrongdoers.) upon lands: justice may try title in this action, 7. for what injury it lies, 463. 467. 598 Tuu , [Index. Trespass, upon land — confinvcd. may recover in one action for distinct trespasses, 13. promoters of, liable the same as ir[)res('nt, 23. trespassers may be sued separately, and others may be witnesses, and bound if called on to testify, 60. amount of recovery against one, its cflect upon the liability of otli- ers, 23, and note 13; they cannot recover back from each other amount paid, 23. within what time the suit must be commenced, 358. (See Limita- tion of actions.) effect of tender for a negligent or involuntary trespass, 459. when license to enter implied, 463,4; when it may be revoked, 463,4; when the law gives a license to enter, 464; to officer to serve process, ib. to traveler when road is impassable, ih. what title or possession the plaintiff must show to maintain the ac- tion, 465,6. defence and damages, 467. (See Tender.) effect of payment for value of personal property taken, ih. to jicrsonal property: suit may be brought in township where done, 6. possession sufficient to maintain the action, 12,13. 152; for what it may in general be brought, 12; when constable ]ial)lc for, 173. may recover in one action for distinct trespasses, 13. promoters of, liable, 23. (See Joint wrongdoers.) trespasser cannot sell the property, 23. within what time the action must be brought, 358. (See Limitation of actions.) on the case: in what cases it may be brought, 9,10; within what time it must be brought, 358. (See Limitation of Actions.) Trial; how witnesses examined on, 63. when suit is by summons, trial may be had when plaintiff, or defend- ant, or both, fail to appear, 44,5. when and how defendant may have a new trial, 45. form of entry on't'hc docket when a new trial is granted, 1 17. one hour in general allowed after time fi.xed for trial, for parties, &c. to appear, 45. when suit, is by capias, trial may be had in absence of plaintiff, 49. how long trial may be adjourned in such case, and proceedings thereon, 49 to 52; if defendant does not appear according to his re- cognizance, justice may proceed to trial, 61. how jury trials conducted, 97,8; new trial, in jury cases, 98. in criminal cases; may be adjourned over, and how, 484; proceedings thereafter, 486; what j)roof of guilt justice should require, ib. Trover; for what it may be brought, 1 1,12. 18. must be commenced within four years, 358; when the four years com- mence, 359. damages in, 12. 356. effect of recovery in the action, upon the ownership of property, 12. Trunk of Traveler. See Stage proprietors. Trustees of Township; (Sec Toiaiship;) how they sue for township, 17. fi.\ the time of holding elections in certain cases, 2,3. to ap[)rove of official bond of justice and constable, 3,4. 269. what infants they may bind out to apprenticeshij), 195. directions for the form of indentures in such case, 511. their duty in relation to such apprentices, 197,8. Index.] Av A R 599 Turnpikes. See Highways — Corporations. Umpire and Umpirage; deliaition of these words, 202. See Arbitrament and Award. Universalists; may be witnesses, 58. Usury; what rate of interest may be contracted for and recovered, 550. whether usurious interest may be recovered back, 351. Venditioni Exponas; what, 141. when to be issued, and to whom delivered, ib. may issue after decease of parties to judgment, 154. See Execution. Vender and Vendee; (see Sales;) who are so called, 210, n. 1. Vendue. See Execution — Auction. Venire; in jury cases generally, 96; in proceedings by and against mas- ter of apprentice, and form thereof, 198 and n. 2, 200 n. 1. by justice as coroner of county, and form thereof, 293. n. 1 ; in forci- ble entry and detainer, and form thereof, and when to be returned, 302.310. form of, on trial of right of property taken by sheriff', 468 n. 1. fees for issuing, 107; for service and return, 108. Verdict. See Jury. Vessels; (as to rights and liabilities,'as carriers, see Carrier of Goods.) contribute rateable share of loss when goods thrown overboard in a storm, 251 n. 1. who and to whom, and when liable for damage to vessel or goods, oc- casioned by collision, 258,9. 251. duty of those entering port to prevent collision with those in port, 259. when two vessels are about to meet or crossing each other, which must give way, ib. (See Snags — Rocks.) Void and Voidable; what is meant by the word void, 8. when proceedings of justice are void, ib. when contracts of infant are void and when voidable, and how con- lirmed, 347,8. Voters; at an election privileged from arrest for debt, and when, 30. Wager. See Gaming. Wages. See Work and Labor. Wagone-rs; are liable as common carriers, 248. See Carrier of goods. Warehouse-men; who are deemed such, and for what injuries to, or losses of goods, they are liable, 248. 252. have a lien for storage, 355. Warrant; in criminal cases; when to issue, 480. form of common state warrant, 480,1 ; of search warrant, 481. constable bound to receive them, 483. how these writs may be served, 482,3. form of return, 483. 37. 484. liability of officer for delay &:c. in service, and for escape, 483. when warrant on account of threats &c. may be issued, 495. form of such warrant, 496 n. 1. proceedings in such case, 495 to 498. in civil cases; against father of bastard child, and form of, and how served and returned, 265, and note 2. against garnishee in attachment, when it may be issued, and form of, 21 8. 261 ; how served and r(!turnc(l, 22 \. for taking stray from taker up, form of, and how served, and form of return, 446 n. 2. 600 w I T [Lidex. Warrant of Atlorney; forms of, tu confess jutlgaieat, 508. made while in custody, liow to be e.\ecut(xl. 285. Waminty; implied u-arranty; what is, 436. of title to property sold, ib. when buyer may refuse to pay on account of seller not having title, 437. that the article is merchantable, and fit for the use intended, 456. that sample and bulk is of same cpiality, ib. that provisions sold for domestic use are sound, &e. 437. that claim assigned is not forgery, 421. express xcarranty; what is, 438. 435. what will amount to a warranty, 438. must be made at time of contract, or form part of its terms, ib. made after sale is void, ib. when not included in the written terms of the sale, is void, ib. (See Fraud.) what defects it covers, and what not, 438,9. remedy of the buyer when the warranty is false, 439. what damages may be recovered for breach of, 440. 433. remedy when there is both fraud and warranty, 431,2. plaintiti' must prove the defect, 440. lit what time property taken on trial must be returned, 440. in suit for price, the defendant may reduce the recovery by showing a false warranty, 440. 432. master liable on, when made by his servant or clerk, on a sale of his property, 22. Widow. See Husband and Wife. may bind out her minor children as apprentices, 193. Wife. Sec Husband and Wife. Wills; how to be made and executed, and revoked, 518. parent may appoint by will guardians for his children, 518. when a verbal will is good, 518; forms of wills, 519 to 522. "Witnesses; form of oaths and affirmations to, in common cases, 93,4; when a party is examined as to his account book, 190; when depositions are taken, 89,90; to a woman, on complaint of bastardy, 266, n. 1 ; when before arbitrators, 203, n. 3. form of subpoena for, 53; how served, and form of return, 54. attachment against, fine and damages for failing to attend trial, 54 to 56; or for failing to attend to have deposition taken, 88,9. need not attend trial if fees demanded, when writ served, and not paid, 54,5. may refuse to be sworn until fees paid, 55. entiled to fees if examined, though not subpoenaed, 55; so if subpoe- naed, though not examined. 65. fees of, 109. how fees of, collected in civil cases, 110,11; in criminal cases, 113. fees for swearing, and for issuing and service of subpama, 107,8. difference between the credibility and competency of witnesses, 57. who are incompetent- from want of understanding, 58; on account of color, 58; from want of religious principle, 58; from infamy and crime, and how proved, 58,9; when witness will gain or lose by event of suit, 59; when servant cannot be witness for or against Index.] woR 601 Witnesses — coniinu ed . his maslei-, 59; when witness is liable for defect of title in the pro- perty about which suit is brought, 59. 69. when the heir may be a witness for the estate and when not, 60. when surety cannot be witness for his principal, ib. when co-trespassers or wrongdoers may be witnesses for or against each other, ih. when witness is interested on both sides, iZ*. when interest of witness is against party calling him, ib. when parties to suit may be witnesses, and when not, 61. what a party who is a witness for his account book may prove, 189, 190. (See Account and account book.) whether claimant or judgment debtor can be a witness on trial of right of property taken on execution, 174. effect of witness becoming interested after suit commenced, 61. when husband and wife may or may not be witnesses for or against each other, 340,1. how interest of witness may be divested, with forms of release, 61,2. examination of; plaintiff must first examine his witnesses, 63; what are leading questions, and when they may be put, ib.; cross exam- ination^ how conducted, 63. Q5; when deposition is taken, 90. can only state matters of fact in his own recollection, 64. when he may state his opinion or the substance of conversation, ih. cannot in general testify as to contents of a written instrument, 77; unless tlie instrument is lost, or is in possession of the opposite par- ty who has had due notice to produce it, or is a private memoran- dum, receipt or account book, 78. 80; nor that an instrument is dif- ferent from the intention of the parties, or that a mistake is made in it, 85; nor that a witness has been convicted of crime, 58. if dead, may prove what he swore on a former trial, 69. attesting witness must be produced, or his absence accounted for, 83,4. how the character and credit of a witness may be impeached, 64,5. 52. what questions bound to answer, 65. proceedings against, for refusing to testify, QQ. 89. consequences as to costs, of subpoenaing too many witnesses, &&. how many necessary to prove a fact, ib. depositions of, when they may be read in evidence, 87. 92,3. (See Depositions.) when privileged from arrest, 29. Woman; privileged from arrest for debt, &c., 30. 139. (See Husband and wife.) Work and Labor; (See Mechanics.) not bound to perform what is agreed to be done gratis, 240,1. 288. but liable for gross negligence in its performance, 240,1. and in such case cannot afterwards recover for the work, 288. mechanics liable for unskillfulness in their work, 245 to 247, 6c note. cannot recover for making a gaming device or machine, 288. when master may recover for labor of his apprentice, 201 ; or parent for work of his child, 365,6; or minor child for his work, ih. effect of part performance; when there is a term fixed for the service, 471 ; or when a particular job or piece of work is to be done, 472 and 474; or in respect to the quality of the work, ib. when laborer is sued for not performing, he cannot be allowed for what he has done, 474. 77 602 YEA \_Inilex. Work and Labor — continued. compensation when nothing is said as to wages, 474. tender of; under contract for, when and where to be made, 456. 430. when due on demand, 456; when time lor performance is extend- ed, li.; cfiect of tender, 460; form of docket entry when tender has been made, 162 n. 1 ; costs in such case, 460,1. (See Tender.) 'Wnis. See Sunwions — Capias ad respondendum — Scire facias — Venire — Execuiiun — Warrani — Mittimus, ^-c. Year ; when mentioned in a statute, note, contract, &c., how computed, 157 n. 12. 402. p* University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. MAR 3 1 21 DUE 2 \A/KS FROM DA" I'CIA ACCFSS SFP^ ^.teriiDrary' Loan 1 1 630 University Rtlse 3ox 951575 s Angeles, CA 90(p95 ^ RECEIVED ICES dich LjDiarv -1575 LAW LIBRARY UNIYERSmr OF CALIFORNIA LOS ANGELES iiiiif'' /\A 000 836 035