I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library DENNIS & CO.. INC. Law Book Publishers 251 MAIN STREET FOREWORD This volume is an exact photo-reproduction of an original copy of DECISIONS of the SUPERIOR AND SUPREME COURTS of NEW HAMPSHIRE, From 1802 to 1809, and From 1813 to 1816 JEREMIAH SMITH, Chief Justice of those Courts As an original is practically unobtainable, this reprint is offered to enable Law Libraries to complete their collection of New Hampshire Reports. The reproduction follows the original in every detail — and no attempt was made to correct errors and defects in typography. Buffalo, N. Y. DENNIS & CO., INC. October, 1954 DECISIONS ' a ,^ r ffl(> OF THE SUPERIOR AND SUPREME COURTS OF NEW HAMPSHIRE, From 1802 to 1809, and from 1813 to 1816. SELECTED FROM THE MANUSCRIPT REPORTS OF THE LATE JEREMIAH SMITH, CHIEF JUSTICE OF THOSE COURTS. WITH EXTRACTS FROM JUDGE SMITH'S MANUSCRIPT TREATISE ON PROBATE LAW, AND FROM HIS OTHER LEGAL MANUSCRIPTS. BOSTON: LITTLE, BROWN, AND COMPANY. 1879. Entered according to Act of Congress, in the year 1879, by LITTLE, BROWN, AND COMPANY, In the Office of the Librarian of Congress, at Washington. Cambridge: Press of John Wilson and Son. JUDGES OF THE SUPERIOR COURT OF JUDICATURE, 1 Fall Circuit, 1802, to Spring Circuit, 1809. JEREMIAH SMITH Chief Justice. TIMOTHY FARRAR (Resigned, January, 1803.) PAINE WINGATE ARTHUR LIVERMORE WILLIAM KING ATKINSON (Appointed, April 26, 1803. Resigned, 1805.) JUDGES OF THE SUPREME JUDICIAL COURT, July 12, 1813, to June 27, 1816. JEREMIAH SMITH Chief Justice. ARTHUR LIVERMORE^ CALEB ELLIS f Associate Justices. (Died May, 1816.) ) 1 This was the style of the highest, or Supreme, Court of New Hampshire until 1813. The terms " Superior Court " and " Supreme Judicial Court " "were applied indis- criminately, by the framers of the Constitution, to the highest judicial tribunal of the State." — Reporter's Note, 63 N. H. 634. PREFACE. The decisions printed in this volume have been selected from the manuscript reports and legal papers of the late Jeremiah Smith, Chief Justice of New Hampshire from 1802 to 1809, and from 1813 to 1816. The manuscript reports of decisions prior to 1813 are in bound volumes. The decisions from 1813 to 1816 have been found in the files of papers used by Judge Smith at the so- called " Law Terms." It is possible that the opinions in these files may, in some instances, represent only the individ- ual views of a single judge, and not the reasons which influ- enced a majority of the court. It was Judge Smith's custom to write the text of his opin- ions and reports on only one side of the paper. Upon the opposite blank pages he frequently made notes, sometimes at a date long subsequent to the decision. In the present publi- cation some of these notes have been omitted, and others have been incorporated with the text ; but by far the larger part are printed in their original form as notes, and are referred to by letters of the alphabet. Notes by the compiler (other than head notes) are referred to by figures. Authorities (some of them of later date than the decision) were occasionally cited in the margin of the manuscript. These have now been inserted in the text, but probably not always in their appropriate place. If an authority seems inapplicable to the sentence where it is cited, it will generally be found relevant to the sentence next before or next after. It is vi PREFACE. believed that some of the authorities in the margin, as well as some of those in the notes, were not cited by the author with the idea that they sustained the text. In transcribing the manuscript for the press, some obvious clerical errors have been corrected, and the modern spelling has generally been substituted for the more ancient. In the division of the matter into paragraphs, numerous changes have been made ; and so in regard to the use of capital letters. For much of the punctuation the compiler is responsible, many of the original manuscripts being greatly deficient in that respect. The head notes have mostly been made by the compiler, with the assistance of the author's Manuscript Digest, which contains abstracts of the decisions prior to 1813. In some instances, the head notes have been copied verbatim from this Digest. The formal prefix (" Smith, C. J.") to the opinion, and the order at the end of the case, have sometimes been supplied by the compiler. Interpolations, by the compiler, in the statements of fact and in opinions are generally enclosed in brackets [ ]. In this volume the claim of originality is not to be implied from the absence of quotation marks. The manuscripts were intended for the author's own use, not for publication. Hence quotation marks were rarely used to distinguish extracts from other writers. If the statements of fact do not always correspond with the records, the explanation may be found in the following note appended to one of the manuscript volumes. " In many of the cases submitted on statement of fact, additions have been made by the Court before judgment or opinion declared, with the consent of both parties." The compiler is not aware that any written opinions of the associate justices are in existence. It was probably the gen- eral custom of their predecessors to give judgment orally. Whether they adhered to the old custom is not positively known, though there is some reason to suppose that Judge Ellis was in the habit of writing out his views. In this connection it seems proper to say that Judge Smith bore PREFACE. vii written testimony to the valuable services of several of his colleagues. Among the cases here published are a few reports of jury trials, where no question was reserved for subsequent consid- eration. These differ from ordinary nisi prius reports, in the circumstance that the trials were had before a majority of the judges, who may all be presumed, in the absence of any state- ment to the contrary, to have assented to the rulings made. Until 1813 there were no " Law Terms " as contradistin- guished from " Trial Terms." Each session of the court was required to be held by a majority of the judges ; and questions of law and fact were " blended together on the docket." By the statute of June 24, 1813 (which remained in force until June 27, 1816), all the Terms, except those com- mencing in November and December, were permitted to be held by a single judge ; and all actions in which exceptions were allowed to his rulings were to be continued to the November and December Terms in the respective counties, there to be determined by a majority of the judges. This statute also provided that "all motions and petitions for new trials, and all appeals from judgments or decrees of judges of probate, and all questions of divorce and alimony, questions of law on statement of facts agreed by the parties, or special verdicts, and all issues in law," should be " heard, tried, and deter- mined, exclusively " at the Terms to be holden in November and December. Sects. 2, 3, 5, and 6. In the subsequent statute of Nov. 5, 1813, §§ 3 and 4, the expression " Law Term " is applied to these November and December Terms ; as it is also in the index of the edition of New Hamp- shire Laws, printed in 1815. As the decisions here published have remained unreported for more than two generations, it is not supposed that they can now be regarded as " authorities " in the ordinary sense of the term. The selections made from the manuscripts are not confined exclusively to cases bearing directly on points still regarded as doubtful. Some cases have been included which decide points now considered elementary, or which have since been made the subjects of legislative action. And, on the other hand, the volume contains some decisions which viii PREFACE. have been distinctly overruled, and some others not likely to be now followed by the courts. It was thought that cases of these various classes might be of value as throwing light " on the origin and growth of the common law of New England, and upon the causes which led to the enactment of important statutes." At the close of the Reports will be found extracts from Judge Smith's Manuscript Treatise on Probate Law ; also extracts from his other Legal Manuscripts. February, 1879. TABLE OF CASES. Page Ames, Jones v 133 Arms, Henry v 39 Ayer, Rhoads v 112, note, 113, note Baker, Twombly v 122 Bank, Coos, Jones v 249 Bank, New Hampshire Strafford, v. Mellen 385 Basset, Currier v 191 Bean, Kelley v. (cited) 157 Bellows, Chapman v 127 Bellows, Eldridge v 356 Bellows v. Grant 115 Bennet, Thompson v 327 Boardman, Gardner v 360, note Boynton v. Emerson 298 Brattle v. Willard 37-4 Bridge, Proprietors of Orford, Moiey v 91 Brown, Buzzell v. (cited) 360 Brown, Frost v 113 Brown v. Hoit 53 Brown v. Langdou 178 Brown v. Sheafe 134, note Bryant v. Ela 396 Burbank v. Norris 440 Bush, Eldridge v 288 Bush v. Mason 117 Buzzell v. Brown (cited) 360 Caldwell v. Caldwell (cited) 239 Carnes, Patterson v. (cited) 124 Carpenter v. Wild 365 x TABLE OF CASES. Page Carr v. Ladd 45 Cayford, Cilley v 150 Chace v.Ellis 112, note Chapman v. Bellows 127 Chesley, Frost v 202 Chesterfield v. Hart 350 Cilley v. Cayford 150 Clagett, Lewis v 187 Clarke, Little v 100 Clarke, Robinson v 147 Clarke, State v. (cited) 240 Cooke, Kingsbury v 217 Coos Bank, Jones v 249 Cornish, Proprietors of, v. Kenrick 270 Couch v. Davis 136 Currier v. Basset 191 Cutts v. Frost 309 Dame v. Twombly 262 Darling, Melven v 74 Davis, Couch v 136 Doe v . Morrell 255 Drew v. Munsey 317 Eastman, "Wilson v 287 Edson, Webster v 370 Ela, Bryant v 396 Eldridge v. Bellows 356 Eldridge v. Bush 288 Ellis, Chace v 112, note Emerson, Boynton v 298 Erskine, Henderson v 36, note Fisher, Steward v 60 Flanders v. Herbert 205 Footman v. Leathers 108, note, 111, note Foster, Lewis v 420 French, Kidder v 155 French v. Watkins 49 Frost v. Brown 113 Frost v. Chesley 202 Frost, Cutts v 309 TABLE OF CASES. xi Page Gardner v. Boardman 360, note Geer v. Hamblin 218 Gilman v. Leavitt 304 Gragg v. Starke (cited) 499 Grant, Bellows v 115 Greenough, Porter v 238, note Gregory v. Wells (cited) 237, 239 Griffin v. Huse 285, note Hale, Harris w 499, note Hale v. Vesper 283 Hall v. Stone 389 Hamblin, Geer v 218 Harris v. Hale 499, note Harris v. Willard 63 Hart, Chesterfield v 350 Hart v. Little 52 Haven v. Libbey 109 Henderson v. Erskine 36, note Henderson, Walton v 168 Henry v. Arms 39 Herbert, Flanders v 205 Hobbes, Lord v 80 Hodgdon v. Lougee 104 Hodgdou v. Robinson 320 Hoit, Brown v 53 Holden v. Reed 278 Horn, Swett v 429 Huse, Griffin v 285, note Jones v. Ames 133 Jones v. Coos Bank 249 Kelley v. Bean 157 Kennedy v. Ricker 432 Kenrick, Proprietors of Cornish v 270 Keyes, State v 135 Kidder v. French 155 Kingsbury v. Cooke 217 Kingsbury, Willard v 223 Kingstown, Plastow v 241 xii TABLE OF CASES. Page Ladd, Carr v 45 Ladd, Smith v 244 Langdon, Brown v 178 Leathers, Footman v 108, note, 111, note Leavitt, Gilman v 304 Leavitt, Phillips v 130 Lewis v. Clagett 187 Lewis v. Foster 420 Lewis, Porter v 148, note Libbey, Haven v 109 Libbey, Reynolds r 197 Libbey, Symmes v 137 Little, Clarke v 100 Little, Hart v 52 Lord v. Hobbes 80 Lougee, Hodgdon v 104 Mason, Bush v 117 Mellen, New Hampshire Strafford Bank v 385 Mflven v. Darling 74 Moore v. Poole 166 Morey, Palmer v. (cited) 360 Morey v. Proprietors of Orford Bridge 91 Morrell, Doe v 255 Munsey, Drew v 317 Muzzy v. Wilkius 1 New Hampshire Strafford Bank v. Mellen 385 Norris, Burbank v 440 Orford Bridge, Proprietors of, Morey v 91 Page, State v 149 Palmer v. Morey (cited) 360 Parker v. Willard 212 Patterson v. Carnes (cited) 124 Phillips v. Leavitt 130 Plastow v. Kingstown 241 Poole, Moore v 166 Porter v. Greeuough 238, note Porter v. Lewis 148, note Porter v. Tarlton 372 TABLE OF CASES. xiii Page Proprietors of Cornish v. Kenrick 270 Proprietors of Orford Bridge, Morey v 91 Raymond v. Stiles 87 Reed, Ilolden v 278 Reynolds v. Libbey 107 Rhoads v. Ayer 112, note, 113, note Ricker, Kennedy v 432 Robinson v. Clarke 147 Robinson, Hodgdon v 320 Sheafe, Brown v 134, note Smith v. Ladd 244 State v. Clarke (cited) 240 State v. Keyes 135 State v. Page 149 State v. Stevens 251 State v. Varney 322 Steele v. Warner 263 Stevens, State v 251 Steward, Fisher v 60 Stiles, Raymond v 87 Stone, Hall v 389 Sumner, Temple v 226 Swett v. Horn 429 Symmes v. Libbey ■ 137 Tarleton, Porter v 372 Temple v. Sumner 226 Thompson v. Bennet 327 Thompson v. Youug (cited) 360 Twombly v. Baker 122 Twombly, Dame v 262 Varney, State v 322 Vesper, Hale v 283 Walton v. Henderson 1 68 Warner, Steele v 263 Watkins, French v 49 Webster v. Edson 370 Weld, Wood v 367 xiv TABLE OF CASES. Page Wells, Gregory v. (cited) 237, 239 Wild, Carpenter v 365 Wilkins, Muzzy v 1 Willard, Brattle v 374 Willard, Harris v 63 Willard v. Kingsbury 223 Willard, Parker v 212 Wilson v. Eastman 287 Winch v. Wright 175 Wood v. Weld 367 Wright, Winch v 175 Young, Thompson v. (cited) 360 ERRATA. Page 86, line 6. For " 7 Cush." read " 5 Cush." 178, note 1. For " 7 Cush." read " 6 Cush." 279, line 26. After *' contractors," insert K 279, line 32. After " (a) " erase K Page 473, Notk * At the end of paragraph I., insert : " Under a recent statute of New Hamp- shire, an administrator may, under certain circumstances, be appointed upon the estate of a person who has not been heard of for one year, and who is believed by the judge of probate to be dead. Laws of 1872, c. 22 ; re-enacted in Gen. Laws, c. 196, §§ 16, 17." SUPERIOR COURT OF JUDICATURE. HILLSBOROUGH, MAY TERM, 1803. John Muzzy v. Samuel Wilkins, Jonathan Smith, and Daniel Campbell. Presbyterians and Congregationalists are different sects in religion, within the meaning of the Constitution. Hence a Presbyterian cannot be taxed for the support of a Congregational minister. Trespass. First count, for making a parish tax (First Parish in Amherst), Dec. 31, 1795, and illegally assessing the plaintiff seventy-five cents ; making a warrant, directed to N. Kendall, by virtue of which he arrested the plaintiff, Jan. 1, 1798, and imprisoned him four days, till he was com- pelled to pay the tax and one hundred dollars to obtain his release. Second count, similar to the first, except that the tax is said to be to pay the Rev. J. Barnard his salary, and the sum assessed on the plaintiff was two dollars and twenty-three cents. The action was commenced returnable to March Term, 1800. I. The defendants pleaded not guilty to the whole declara- tion, and issue was joined. II. By leave of court they pleaded a second plea to each count. 1. To the first count, as to every thing, except the force and arms and whatever is against the peace, actio non, because they l HILLSBOROUGH. Muzzy v. Wilkins. say that on and before Dec. 31, 1795, there was a parish in Amherst, called the First Parish ; that the defendants were duly chosen assessors for said parish, March 16, 1795, and accepted the office ; that the parish duly and legally voted to raise a tax to defray current charges, &c, amount, ninety- three dollars and thirty-two cents ; that N. Kendall was duly chosen collector, and accepted the office ; that the plaintiff, on March 16 and Dec. 31, 1795, long before and ever since, was an inhabitant of and belonged to said parish, having ratable property therein, and liable by law for the payment of his proportion of all taxes legally assessed on said parish ; that the defendants duly assessed the inhabitants of said parish, and, among others, the plaintiff seventy-five cents, being his just proportion of the sum aforesaid ; and made a warrant to N. Kendall, authorizing him to collect the same, agreeably to law ; that N. Kendall proceeded according to law, and, be- cause the plaintiff, though duly notified of the assessment aforesaid, and required to pay, neglected, &c, arrested the plaintiff, and imprisoned him till he paid, &c. ; all which doings of the defendants and N. Kendall were lawful, which is the residue, &c. 2. The second plea to the second count was the same, ex- cept in the description of the tax and sum, and except that it was not alleged that the plaintiff belonged to the said parish, but only that he was an inhabitant, liable, &c. To the second plea to the first count the plaintiff replied preclvdi non, because, March 16, 1795, long before and ever since, Mr. Barnard was, hath been, and now is a public teacher of that religious persuasion, sect, or denomination of Christians known by the name of Congregationalists, and the majority of the members of the said first parish in Amherst, of which he is the public teacher, were, during the time aforesaid, and now are, of the same persuasion, sect, or denomination ; and that the said Muzzy, during all the time aforesaid, was, and now is, of another and different religious persuasion, sect, or denomi- nation, namely, of the religious persuasion, sect, or denomina- tion called and known by the name of Presbyterians, and this he is ready to verify, &c. MAY TERM, 1803. Muzzy v. Wilkins. Similar replication to the second plea in bar of the second count. To the first replication the defendants rejoined that the plaintiff was not, during the time aforesaid, of the religious persuasion, sect, or denomination called and known by the name of Presbyterians, and of this they put themselves on the country, and issue was joined. To the second replication the defendants demurred, and the plaintiff joined in demurrer. The following is the opinion of Smith, C. J. : 1 — By these pleadings, as it respects the second count, in which the plaintiff sets up a claim to exemption from the Rev. Mr. Barnard's salary for 1795, it is admitted that the plaintiff was and is a Presbyterian ; and the only question referred to the decision of the court is whether Presbyterians are, within the meaning of our Constitution, of another or different persuasion, sect, or denomination, from Congregationalists. If they are, the plaintiff is entitled to recover upon this count. If not, he was rightfully taxed, the replication is sufficient, and the de- fendants must have judgment. The question is important, inasmuch as there is involved in it the construction of a great and fundamental article of the Constitution, an article in which every individual is concerned, and which has at all times, when drawn into discussion, excited a great degree of interest and zeal. It is of importance that we should decide aright, and that the grounds of our judgment should be clearly and certainly known, as a rule to be followed hereafter in all cases of the like nature. The best, if not the only, way to arrive at the true sense of any particular clause in the Con- 1 A large portion of the author's notes to this opinion were evidently made after the delivery of the opinion, and after it had been copied into the manuscript volume from which it is now printed. The blank leaves of the manuscript seem to have been used as a sort of commonplace-book, in which to record references to, and* extracts from, later reading, not always sustaining the text. The notes so made are of unequal value; and, if the manuscript had been revised by the author with a view to publica- tion, some notes would probably have been omitted, and others condensed. A few of these notes have been omitted in the preseut publication. HILLSBOROUGH. Muzzy v. Wilkins. stitution, is to examine all the parts of that instrument which relate to the same subject, compare them together, and then put that sense upon it which, on a fair consideration of the whole, we collect the framers intended it should bear. This is the more necessary, as it is apprehended that very erroneous opinions have been entertained on the clause of the Constitution which relates to religion and the right of con- science. I. By the fourth, fifth, and sixth articles of the Bill of Rights it is declared " that the rights of conscience are founded in nature and are unalienable ; that every individual has a right to worship God according to the dictates of his own conscience and reason ; and that no one shall be hurt, molested, or restrained, in his person or his estate for thus worshipping his Maker, or for his religious profession, senti- ments, or persuasion, provided he doth not disturb the public peace or disturb others in their religious worship ; that every denomination of Christians demeaning themselves quietly and as good subjects of the State shall be equally under the pro- tection of the law, and no subordination of any one sect or denomination to another shall ever be established by law." (a) That society, or, which is the same thing, that the civil magistrate, should ever undertake to prescribe to men what they shall believe and what they shall not believe, is a thing so absurd that we should hardly believe it upon less evidence than that of experience. Opinions are not the proper objects of human authority. The mind of man was not intended by its wise Creator to be subjected to the control of finite and limited beings like itself. Freedom of thought is the preroga- tive of human kind (Eden, 91), (&) a quality inherent in the (a) 4 Belsham, Geo. III. 204, 205. No man ought to be molested on account of his opinions, not even his religious opinions, provided his avowal of them does not disturb the public order. The law ought only to prohibit actions hurtful to society. Articles V. and X., French Declaration of Rights, 1789. (b) Conscience is the royalty and prerogative of every private man. He is absolute in his own breast, and accountable to no earthly power for MAY TERM, 1803. Muzzy v. Wilkins. very nature of a thinking being, a privilege which ought never to be denied. And yet we find an English Parliament making it treason to be willingly withdrawn or converted to the Popish religion. Eden, 144. (a) Equally absurd was the Act of the same Prince which made it treason to believe that he was married to Anne of Cleves. Eden, 93. (£>) The infallible Church of Rome condemned the Copernican System as a heresy, and the famous Galileo was imprisoned for believing and teaching it. He was obliged to recant and curse his former opinions, and swear that he would believe so no more. This was compelling him to promise what he could not perform, (c) Mere difference of opinion has been deemed an offence. The weaker body, though perhaps the stronger mind, was always the offender. It is still more unjust and absurd for government to extend its jurisdiction over the that which passes only betwixt God and him. Those who are driven into the fold are, generally speaking, hypocrites, rather than converts. 1 Dry- den, 231, preface to Hind and Panther. Of all the tyrannies on human kind, The worst is that which persecutes the mind. 1 Dryden, 246. 40 Monthly Review, 650. The most deplorable degree of slavery is the subjection of opinion, &c. (a) Protestants have conscientiously become Catholics. This was the case with George Calvert, first Lord Baltimore. Upon his conversion, he re- signed his office of Secretary of State. 2 Belknap, American Biography, 364. (6) See 67 Monthly Review, 15. Strange legislation, to make the exercise of the understanding penal. Impolitic and unjust. 21 Edinburgh Review, 182. (c) To destroy people for points of mere speculation, and which have no ill effects on practice and civil government, seems very remote from the spirit of Christianity. Supposing truth on the persecuting side, yet to burn a man, because he will not belie his conscience and turn hypocrite, is strangely unaccountable. Men cannot believe what they please. Their understandings are not all of a size. Things do not stand in the same light and strike with the same force on everybody. Besides, if the perse- cutors believe the persecuted will be so ill received in the other world, why do not they use them better in this? Why do they hurry them to eternal destruction before their time? Such wisdom does not proceed from above It is earthly, sensual, and devilish. Collier, 2 Rep. 48, n. 6. See 1 Lord Erskine's Speeches, 307. HILLSBOROUGH. Muzzy v. Wilkins. opinions of men in matters of religion, (a) Religion is that sense of Deity, that reverence for the Creator, which is im- planted in the minds of rational beings. It is seated in the heart, and is conversant with the inward principles and tem- per of the mind. It must be the result of personal conviction. It i> neither to be produced by fines and penalties, nor can it be extirpated by them. It is a concern between every man and his Maker. The laws which regulate faith come immedi- ately from the author of the human soul. They are not like human laws to-day, commanding us to believe what to-morrow we are roasted alive for believing. They are always the same, and will remain the same when the laws and constitu- tions of men shall have only an historical existence or be utterly forgotten. No human government has a right to set up a standard of belief, because it is itself fallible. (6) It has not pleased God to enlighten by his grace any government with the gift of un- derstanding the Scriptures. Uniformity of opinion in matters of faith is not practicable, and, if it were, is not desirable. () An Act of Parliament passed (1 Rapin, 827), declaring that what- ever the King should enjoin in matters of religion should be believed and obeyed by all his subjects. 1 Rapin, 829. (t) It is the interest of a despot to have but one religion in his domin- ions, because it is his interest that there should be none. 07 Monthly Review, 14. It is not in the power of men to believe what they please; and, there- fore, I think they should not be forced in matters of religion, contrary to their persuasions and their consciences. I wish all good men were of one mind. However, in the mean time, I would have them live peaceably and love one another. Mass. Hist. Coll. I. 251 ; 14 Edinburgh Review, 372, 397 ; Queen Mary, 1689. God above alone can look into the heart; and man, could he look into it, has no jurisdiction over it, until society is disturbed by its actions. 1 Lord Erskine's Speeches, 422. MAY TERM, 1803. Muzzy v. Wilkins. sects and opinions. In the English statute book we find an act for abolishing diversity of opinion in certain articles of the Christian religion, (a) The preamble recites that great advantages result from unity of sentiment, and that many evils flow from diversity of opinion, in religious matters, that the King had summoned Parliament and the Convocation for the express purpose of putting an end to this diversity ; that among other questions he had submitted this to these two venerable assemblies, " Whether, after consecration in the sacrament of the Eucharist, the substance of the bread and wine remains, or no?" that his Majesty had commanded this question to be discussed, and, what is more, to be understood ; and, to accomplish so desirable an object, had himself mingled in the debate, and given a specimen of his princely knowledge. The result of this assemblage of talents, wisdom, and piety is stated in the enacting clause : " Therefore it was resolved, agreed, and enacted, by authority of Parliament, that, in the sacrament, by the strength and efficac}' of the word of Christ spoken by the priest, the natural body and blood of Christ, conceived of the Virgin Mary under the form of bread and wine, is really present, and of course the bread and wine no longer remain." In truth, this question was no better understood after frhis act passed than before. Things remained exactly as before, unless it was that the opinions of men became still more diverse, from this absurd attempt to unite them. (6) Persecu- (a) 31 Henry VIII. ch. 14; 1 Rapin, 821,822; Cooper's Justinian's Institutes, 633, 663 ; 1 Haz. Eloq. Brit. Sen. 406 ; 67 Monthly Review, 15. (b) An absurd attempt was made in Salem, 1631, to introduce uniform- ity in dress, wearing of veils. Mass. Hist Soc, 1799, VI. 245, 258. 46 Monthly Review, 77. It is difficult to determine whether the princi- ple of religious persecution be most wicked or most weak. Calvin, imag- ining Servetus to be wandering in the darkness of error, seems to have concluded that no light could so surely guide him to the truth as that of a bonfire, in which the convert himself was to be the principal fagot. How abominable, and, at the same time, how absurd ! He that's convinced against his will, Is of the same opinion still. Hudibras. HILLSBOROUGH. Muzzy v. Wilkins. tii in on account of religious opinions is no less opposed to sound policy, to the sentiments of nature and humanity, than it is to the mild precepts of the Gospel of Peace. A celebrated Englishman of the present day (a) observes that it is his ardent wish to extirpate heresy by fire, — not, in- deed, in the old mode of burning heretics, but by burning all the statutes which declared the offence of heresy and thus formed the code of persecution. This is precisely the course taken by our Constitution. It cuts up persecution by the roots. It secures to every man the free enjoyment of his opinions on religious subjects. It prescribes no articles of faith. It for- bids the legislature to prescribe any. It leaves every man free to examine and judge for himself. Let it not be imagined that this provision was unnecessary and useless. (£>) Mankind have always been disposed to persecute their fellow men. (c) But, as long as this charter of our liberties remains inviolate, there can be no persecution in this State on account of re- ligion. Every man may worship God according to the dictates of his own conscience and reason ; and even those who deny their Maker this " most reasonable service," who refuse to worship him, or who entertain erroneous opinions of him, his attributes, and his religion, are referred for trial and punish- ment to him whose judgment cannot err, and who will surely render to every man the just reward of his own doings. (. Wilkins. II. But our Constitution goes further. It wholly detaches religion, as such, from the civil State. By the mixture of civil and spiritual powers, both become polluted. 3 Wail). Serm. 300, 301. The civil uses religion for an engine of State to support tyranny, and the spiritual becomes invested with the sword of the civil magistrate to persecute. Under our Constitution there is no such union, no such mixture. No one sect is invested with any political power, much less with a monopoly of civil privileges and civil offices. The particular sect, or denomination, to which a citizen belongs neither pro- motes nor hinders his political advancement. It is his charac- ter, not his opinions; his works, not his faith, — that is to be regarded. All denominations are equally under the protection of the law, are equally the objects of its favor and regard. No one denomination is subordinate, that is inferior in degree, to another, for all are equal. Nothing could be better calcu- lated to promote the peace and tranquillity of society than this excellent provision. It is admirably calculated to prevent re- ligious hate ; to assuage the bitterness of religious contests, which (when religion is connected with the State) are the is considered in England, by all parties and sects, as securing the rights of conscience in the most ample degree. 4 Belsham, Geo. III. 126. Mere opinions ought not to be punished by the civil magistrate. Lord Mansfield, Blackst. Appendix, 145-152; Cowper, 3S3-393 ; 4 Belsham, Geo. III. 215, 280, 364 ; Articles V. and X., French Declaration of Rights, 1789; 2 Anach. 364, 365, &c. {Contra. 2 Boswell's Life of Johnson, 105-113; 3 Boswell, 363 ; 64 Monthly Review, 499-503; New England Platform, Wise, 22S.) Blackst. Appendix, Furneaux Lett. 27, n. ; Dr. Tucker's Remarks on Parsons, 8, &c. ; Private Opinions, 33 Monthly Review, 554. Voltaire. The only case in which intolerance is justifiable by human laws is when the errors of a people become criminal. Government hath then a right to punish them. They become criminal only when they dis- turb the peace of society and inspire fanaticism. No fanatics of any re- ligion can lay claim to toleration. 30 Monthly Review, 531. Marmontel, Speech, II. 196. In religion, thought is absolutely free, for it appertains to man in his relation to God. Action in worship is but conditionally free, for it appertains to man in society. It may be restrained when it disturbs the public tranquillity. Religion is an innocent thing, &c. 17 Edinburgh Review, 394. 10 HILLSBOROUGH. Muzzy v. Wilkins. bitterest of all contests. It holds forth no motive to incite each man to divine the opinions of his neighbor, and to deduce mischievous consequences from them. It furnishes no motives to hypocrisy, nothing to gratify the passions of avarice and ambition. On the contrary, the collision of opinions in open and liberal discussion among men living under the same gov- ernment, which it permits and cherishes, cannot fail to produce the most happy effects in the promotion of knowledge, candor, and charity. In a word, our Constitution regards men as they are regarded by the great Governor of the world, who bestows the blessings of his providence on all the children of men, however diversified by modes of faith, and however divided into sects and denominations, (a) III. Under the two preceding heads we have seen that the Constitution secures the citizens of this State against persecu- tion on account of their religions faith and worship. It de- clares that all men are equal in the sight of the law, are equally eligible to honors, places, and employments, without any other distinction than that created by their talents and virtues. (6) Religious opinions form no ground of distinction. But we are not from hence to infer that the civil magistrate may not lawfully punish certain offences against the unaltera- ble and essential principles of natural and revealed religion, for these principles are said to make a part of the common law. Of this description are the offences of blasphemy, (c) reviling religion, profanation of the Sabbath, &c. Nor are we (a) There is a small deviation from this liberal doctrine in the Consti- tution, where it is provided that Governor, Councillors, Senators, and Representatives shall be of the Protestant religion.* There is no religious qualification as it respects electors. See Mr. Pitt's speech in favor of excluding Dissenters from offices.* 4 Belsham, Geo. III. 124, &c. (b) Article VI., French Declaration of Rights, 1789; 4 Belsham, Geo. III. 2G5. (c) Atheism. Lord Mansfield {Blackst. Appendix), Speech, 145, 152; Bishop of St. David's (Dr. Horsley), 4 Belsham, Geo. III. 220. * Judge Smith, in the Constitutional Convention of 1791, voted in favor of ex- punging the Protestant teat. JournHl of Convention; 10 Provincial and State Papers, 46. The test was finally abolished by the constitutional amendments adopted in 1877. MAY TERM, 1803. 11 Muzzy v. Wilkine. to infer that religion is a thing of no consequence to society. The reverse is the case, (a) Religion, in the strict sense of the word, is a personal concern. It is a matter between God and every one of his rational creatures. Yet religious princi- ples have the most unbounded and the most salutary influence on the affairs of men united in society. It is declared in our Constitution that morality and piety rightly grounded on evangelical principles, that is, on the principles of the Gospel, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection, or, in other words, will make the best citizens and subjects ; that the knowledge of these is most likely to be propagated through society by the institution of the public worship of the Deity, and by public instruction in morality and religion. It is then declared that, to promote these im- portant purposes, the legislature may empower the several towns, corporate bodies, and religious societies in the State, to make adequate provision for the support and maintenance of public teachers of piety, religion, and morality ; to be elected by the majority of the corporation. The legislature have done as they were required, and have given to towns and parishes the authority they were thus enabled to give. 1 (a) 47 Monthly Review, Sept. 1772, p. 236; Dr. Kippis, 47 Monthly Review, 105; 67 Monthly Review, 15, 6, 7; 3 Senator, 585. 1 The Statute of Feb. 8, 1791, § 10, enacts that the inhabitants of each town, at any legal meeting, "may, agreeably to the Constitution, grant and vote such sum or sums of money as they shall judge necessary for the settlement, maintenance, and support of the ministry, schools, meeting- houses, school-houses, ... to be assessed on the polls and estates in the same town, as the law directs " The Provincial Statute of May 14, 1714, empowered towns to choose ministers, and raise money by taxation for their support: "Provided always, that this act does not at all interfere with Her Majesty's grace and favor in allowing her subjects liberty of conscience; nor shall any person, under pretence of being of a different persuasion, be excused from paying towards the support of the settled minister or ministers of such town aforesaid; but only such as are conscientiously so, and constantly attend the publick worship of God on the Lord's day, according to their own per- suasion, and they only shall be excused from paying towards the support of the ministry of the town." 12 HILLSBOROUGH. Muzzy v. Wilkins. The principles upon which towns and parishes, in their cor- porate capacity, are enabled to support and maintain public instruction in religiOD and morality, which have just been de- tailed, are not the more true and solid for being recognized in our Constitution ; but their being found there justly authorizes those whose duty it is to interpret that instrument to weigh and consider them in judging of the extent, the limitation, and the restrictions of the power conferred ; and, taking those principles into consideration, we are bound to suppose that a power so beneficial and salutary in its consequences, so neces- sary to the well-being, if not to the very existence, of a free government, was not intended to be rendered wholly nugatory by any thing contained in other parts of the same instrument. We are bound to give that construction to the various clauses which will give effect and meaning to every part. We are to collect the meaning from the whole instrument, not from dis- jointed parts. Under these impressions, and with these rules of construction for our guide, let us examine that clause of the sixth article of the Bill of Rights which the plaintiff relies upon in support of his claim to exemption. It is this : " No person of any particular religious sect or denomination shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect, or denomina- tion." And here it may be useful to observe that, if this clause had been omitted altogether, there would have been neither any violation of the rights of conscience, nor any proper religious establishment in the State, (a) A religious establishment (6) is where the State prescribes (a) And yet a law which should tax the State, ail sects and denomina- tions, for the support of religious worship according to the articles and tenets of one sect alone, would be considered as altogether oppressive and intolerable ; in the same manner as a tax on the whole people to edu- cate the children of Congregationalists alone. See 21 Edinburgh Review, 211. (b) See, on this subject, 17 Edinburgh Review, 6. Toleration. See 17 Edinburgh Review, 394, and above reference. 5 Senator, 785. Establishment. 5 Quarterly Review, 352. MAY TERM, 1803. 13 Muzzy v. Wilkins. a formulary of faith and worship for the rule and government of all the subjects. 5 Senator, 742. Here the State do neither. It is left to each town and parish, not to prescribe rules of faith or doctrine for the members of the corporation, but barely to elect a teacher of religion and morality for the society, who is to be maintained at the expense of the whole. The privi- lege is extended to all denominations. There is no one in this respect superior or inferior to another. The minority of each corporation can neither be molested on account of their re- ligious opinions, nor subjected to any civil disabilities. The Constitution, Viewing religion in some form or other as useful if not indispensably necessary to make good subjects ; not being able to decide between contending sects as to which is most agreeable to the Word of God, the infallible standard, but viewing them all as equally good for the purposes of civil society, because they all inculcate the principles of benevolence, philanthropy, and the moral virtues (Blackst. Appendix, Fur- neaux Lett. 94) ; (a) considering, too, that public instruction in the general principles of religion and morality can only be maintained by enabling corporate bodies to support and main- tain it, — under these impressions and with these views, confers the powers in question. Independent of the exempting clause, it is true an indi- vidual member of the corporation would sometimes be com- pelled to pay towards the support of a teacher of a different denomination from his own, but still the conscience would be left free. 1 He need not believe as the teacher or the majority believe. He need not worship as they worship. He may be- lieve and worship in his own way, or not believe and not worship, just as he pleases. His conscience is free, his civil rights unimpaired. It is his misfortune that, in electing a teacher of religion and morality, he happens to be in the (a) 3 Senator, 58.3. The experience of past centuries and the contem- plation of present times prove that religionists of all descriptions may be equally good subjects. 40 Monthly Review, N.s. 150. 1 Compare Parsons, C. J., in Barnes v. First Parish in Falmouth, 1810, 6 Mass. 401, 408, 409. 14 HILLSBOROUGH. Muzzy v. Wilkins. minority. 1 His situation, in this respect, is precisely the same as it is in other civil concerns of the State. The minority are compelled to pay for instruction in learning, though they may be of opinion that the schoolmaster chosen by the majority neither promotes learning nor good manners, but the contrary. So the minority are compelled to pay towards the support of a governor, judges, &c., because the majority think these men advance the happiness and promote the good of society, though the minority may think they corrupt and injure the community. Public teachers of religion and morality chosen by a corporate body, are to every purpose civil officers of the State, as much so as schoolmasters and magistrates. The corporation choose them and maintain them because they believe their instructions will promote the good of society. Public instruction in religion and morality, within the meaning of our Constitution and laws, is to eveiy purpose a civil, not a spiritual, institution. The relation that subsists between a minister and the town is civil ; that which subsists between a minister and the church is spiritual. Hence, the former is regarded in our laws, and the latter is not. Society has a right to judge what will pro- mote the good of society, and to provide for it at the expense of the whole, (a) The minority must submit to the judgment of the majority. No civil regulation can be made or adopted which does not militate with the opinions and the wishes of individuals. Some there are who profess to believe that learning is no way useful to the State. They are permitted to enjoy their opinions ; but they are not on that account ex- cused from paying. There are persons who profess to believe that war of every kind is unlawful ; "they are conscientiously scrupulous about the lawfulness of bearing arms." Thirteenth (a) The celebrated Mr. Locke, in framing a Constitution for the Caro- linas, allowed the Church of England a maintenance by Parliament (of the Colony). 1 Holmes, American Annals, 408, n. 1 See Richardson, C. J., in Baptist Society v. Wilton, 1822, 2 N. H. 508, 512. The Congregationalists, although at that day often in the majority, were not so in every town. Sometimes " the tables were turned." See instances cited by Doe, J., in Hale v. Everett, 1808, 53 N. H. 9, 148, 149. MAY TERM, 1803. 15 Muzzy v. Wilkins. article N. H. Constitution ; 1 Gibb. 492, 493. And this is the scruple of a respectable religious sect. They are indulged in their scruples, but they must pay an equivalent, they must pay those who do fight, (a) An individual may in his conscience believe that his nation wages an unjust war, but as long as he continues a member of the State, he must contribute his quota towards carrying it on. In short, on this subject of conscience, there is no mistake more common than for men to mistake their wills and their purses for their consciences. (6) Whatever other objections, therefore, may lie against the plan of authorizing towns to elect and support public teachers of religion and morality at the expense of every member, it is clear that it would be no infringement of the rights of conscience, (c) The question («) 3 Boswell's Life of Johnson, 359. Dr. Johnson says: " My friend, Tom Cuming, the Quaker, in 1745, said he would not fight, but he would drive an ammunition wagon. And we know that the Quakers have sent flannel waistcoats to our soldiers, to enable them to fight better." 1 Minot, 235. Pennsylvania, under the influence of the pacific princi- ples of the Quakers, in 1755, declined furnishing troops for the war, but voted to raise £10,000, to be expended in provisions for the use of the forces raised by the other colonies. " They were willing to furnish stomach ammunition, — the materiel of all battles and bloodshed they cause others to fight." Nat. Gaz., Oct. 15, 1825. 35 Quarterly Review, 226, n. Quaker casuistry, a notable instance. (L) The good Mr. Vane could not in conscience dine with Governor Wiuthrop in company with Lord Ley. Winthrop's Journal, 133. It is the opinion of some that it would very much enlarge and establish liberty of conscience, that great bulwark of our nation, if the Christian religion should be abolished. 3 Swift, 111, Argument agaiust abolishing Christianity. See id. p. 124. (c) 2 Belknap, American Biography, 248, Life of Governor Bradford Certain persons excused themselves from working for the public on Christ- mas Day, on the score of conscience. In the course of the day, the Gov- ernor found them at play. He commanded the instruments of their game to be taken from them. At the same time, he informed them that it was against his conscience to suffer them to play while others were working for the public. There is nothing which has not, at some time or other, been used as a pretext of the conscientious kind. The rioters in London, in 1780, pretended to be actuated by religious motives ; the outrages they committed were all in defence of the Protestant 16 HILLSBOROUGH. Muzzy v. Wilkins. before the Court, therefore, does not involve in it a matter of conscience. It is a mere question of the extent of a civil obligation and a civil duty ; that is, how far a corporate body can compel its members to support the public teacher chosen by the corporation pursuant to the Constitution. IV. It is admitted that the plaintiff is a Presbyterian, and that a majority of the persons composing the First Parish in Amherst, and their teacher, are Congregationalists. Are these different sects, or are they one and the same ? What is the criterion by which we may be enabled to decide the question ? Is it a difference in faith, in doctrinal points ; or is it a differ- ence in the form of church government, discipline, and worship, which constitutes different sects and distinguishes one set of Christians from another ? Most, if not all, the religious sects have their confessions of faith and their platform or directory of church government, discipline, and worship. We find that many sects agree in the main as to matters of faith, but differ in their platforms of government and discipline. The Episcopalian, Presbyterian and Congregational Churches agree in articles of faith, and differ in government, discipline, and worship. Warb. Sermons, 207. (a) Presbyterians, Inde- pendents, Baptists, in England, all subscribe doctrinal arti- cles of the Episcopal Church. 4 Blackstone, 53. (6) They are still nonconformists, Mass. Hist. Coll. IX. 42, n. ; that is religion. It went against their consciences that the Roman Catholics should enjoy the liberty of conscience. 1 Pol. Mag. 504; 2 Boswell's Life of Johnson, 105-113. (a) Mass. Hist. Soc, 1795, pp. 135, 222; 3 Senator, 140. The subjects of these colonies (Massachusetts, Plymouth, New Haven, and Connecticut, including New Hampshire) are of the same faith and belief, in all points of doctrine, with the Church of England and other reformed churches, though not alike persuaded in some matters of order, &c. Mass. Hist. Coll. 1. 175. The synod which framed the New England Platform of Church Discipline recommended to the General Court and the churches the Westminster Confession of Eaith. Mass. Hist. Coll. VII. 25 ; Mass. Hist. Coll. IX. 40, &c. See 1 Holmes, American Annals, 345, 484; Winthrop's Journal, 194. (b) This is expressed too strongly. All are required to subscribe; some refuse. 47 Monthly Review, 102. MAY TERM, 1803. 17 Muzzy v. Wilkins. they refuse to conform to the peculiar rites, ceremonies, dis- cipline, government, and externals of religion as practised in the Episcopal Church, because they profess to believe them unscriptural. But, notwithstanding this agreement between the different sects as sects, bodies of men, or distinct societies, yet the individual members of each of these sects differ widely in faith and doctrine, (a) In the Episcopal Church there are Calvinists, Arminians, Universalists, &c. The same may be said of the Presbyterian and Congregational Churches. If we say that articles of faith are what only distinguishes sects, then Episcopalians, Presby- terians, and Congregationalists are of the same sect. If we say that doctrinal points enter into the discrimination at all, then individuals among Presbyterians, Congregationalists, and Episcopalians are of the same sect, for they are Calvinists, Arminians, Universalists, &c. ; and individuals in the Episco- pal Church are of different sects, for some are Calvinists, some Arminians, some Universalists, &c. But according to' the common and usual acceptation of the term sects, (6) matters of faith are not considered. The Episcopalians are a sect ; the Presbyterians are a sect, &c. The individual members do not agree in doctrine, and among Episcopalians there are not many sects, though there is much diversity of opinion in articles of faith, and perhaps no two Episcopalians understand the Thirty-nine Articles precisely in the same sense ; yet they are all of one denomination. (a) 1 Doug. 440, says the Synod at Cambridge, N. E., 1648, agreed to the Westminster Confession of Faith of 1646, in matters of faith and doctrine, but composed a platform of their own for discipline. In 1680, the Confession of Faith nearly the same with that of the Independents in England, called the Savoy Confession of Faith (Oct. 12, 1658), and seemed to renounce the models of Geneva and Scotland. See id. 442, not different in doctrine, but church government, &c. Plymouth Colony address to Charles II , Chalmers, 105, 106, agreeing in doctrinal points of religion with the profession of the Church of England and other reformed churches, &c. (6) Dr. Tucker, in his remarks on Mr. Parsons's sermons, in which the latter had spoken of Calvinists as a denomination, says, This is the first time I ever heard of them as a distinct sect or denomination of Protestants. 2 18 HILLSBOROUGH. Muzzy v. Wilkins. If, therefore, we allow doctrinal articles to enter into the definition of sect, the term becomes immediately indefinite and uncertain in its meaning ; and, what is more to our pur- pose, affixing this sense to the term will render altogether nugatory that clause in the Constitution which enables cor- porate bodies to support and maintain public instruction in religion and morality. To illustrate this idea, let us suppose a whole town or parish to be composed of Episcopalians. They elect an Episcopalian teacher. An individual refuses to pay, because the majority or the parson is a Calvinist, and he an Arminian. How is this matter to be tried ? Who shall deter- mine as to the creed of the parson or the person claiming exemption ? We must take the parties' word for it ; we can- not have better evidence. Then the cprporation may make a contract as a corporate body, and yet every individual upon his own declaration merely may be loosed from the bond. What is this but saying that the corporation may coerce all who choose to be coerced ; may force the willing, but not the unwilling ; or, in other words, the corporation shall not exercise any of the powers of a corporate body. This absurdity is not attached to the other opinion, namely, that a difference in government, discipline, and worship alone constitutes the difference of sects and denominations, (a) If an individual claims exemption on the ground that he is a Baptist, &c, the truth or falsehood of his plea may be exam- ined and tried by a jury. Though God alone is the absolute judge of a man's faith and of his conscience, yet the world can judge as to what sect he belongs. 1 Circumstances will serve to evince whether he is what he professes to be or not, (a) Forms, ceremonies, &c, of the Church of England caused the set- tlement of New England. See 1 Iluhbard, 154, tyc. " Conscience in point of God's worship " was the main end of coming here, — those of different persuasions respecting church government cannot join us, &c. Morton's Mem. 418. " Sects, in England, are formed by reason of disagreement in points of discipline and external forms of worship." Middleton on Miracles, cxiii. The Church and dissenters agree on essentials, and differ only about things indifferent. Id. 1 Blackst. Appendix, 151. MAY TERM, 1803. 19 Muzzy v. Wilkins. whether he is sincere in his declarations that he belongs to this or that sect. Is he consistent throughout ? do his actions correspond with his declarations ? All these things may be and must be manifested by overt acts. It is a just and excel- lent maxim, which will hold good in this as in all other cases, " By their fruits ye shall know them." If he is really and truly a Baptist, as he professes to be, it will appear. He will attend their meetings, not now and then, but frequently, con- stantly. He will join with them in divine worship in their way, not occasionally, but statedly. He will conform to their rites and ceremonies, submit himself to their government and dis- cipline. Is his profession assumed merely that it may serve as a cloak to screen him from paying taxes iri the society to which he belongs ? His actions will demonstrate. If his ac- tions show this, he is a pretended, not a real, Baptist ; and his profession shall not avail him. So if he has joined differ- ent sects at different times, and especially if he has done so from improper views, (a) So if he appear to be an atheist, deist, a reviler and contemner of religion, or a person of no religion. (6) All these things are capable of proof. But how shall it be proved what is the doctrinal belief of a parish, or even of a parish priest, or any individual member ? Who is capable of ascertaining precisely who are Calvinists and who Arminians, who are Arians and who Socinians ? It would many times puzzle a jury of theological doctors to decide. I may add, it would puzzle many people to pronounce as to their own creed. Most people, I presume, have opinions in matters of religion ; but there are few who can tell what they are, and fewer still who can compare them with the opinion of others and mark their agreement and their disagreement. It would require a very nice compass and a skilful theologi- cal surveyor to run the divisional line between Calvinists and (a) But merely worshippiug with other denominations occasionally, and even conforming to their rites, is not evidence that the person is insincere in his profession. The famous Baxter, a Presbyterian, who refused the bishopric of Hereford, 16(51, frequently attended divine service in the Church of England, went to the sacrament, and persuaded others to do the same. 2 Rapin, 744, n. 4. (b) Lord Mansfield, Blackst. Appendix, 145-152. 20 HILLSBOROUGH. Muzzy v. Wilkins. Hopkinsians. What allowance shall he make for the variation of the needle ? We have new and old Calvinists, rigid and liberal Hopkinsians, new and old divinity, (a) Disagreement in opinion as to the doctrines maintained by sects may have many times occasioned new sects to spring up. But every difference of opinion has not proceeded to this length ; and even where it has occasioned a separation, the dissenters generally, if not always, differ more in government, discipline, and worship, that is, in the externals, than in arti- cles of faith. It is wholly immaterial to our present purpose whether doctrine, or government and discipline, is of the greater or less importance. The former does not, and the latter do, admit of being known and established by evidence. At the same time, it may be proper to remark that mankind have at all times more obstinately adhered to the ceremonies of religion than to the doctrinal parts. The externals of relig- ion have always made a greater impression on the multitude than the internals, (b) We may then safely conclude that by sects spoken of in the Constitution we are to understand a body of Christians cut off or separated from the rest, — for this is the strict mean- ing of the word (3 Senator, 585), (c) — who live apart and by themselves, having a form of church government, discipline, and worship different from others, and especially from those from whom they separated, and who thus, forming a distinct sect, section, or society, acquire a name or denomination. In ascertaining the sense and meaning of laws and consti- tutions, little confidence, perhaps, is to be placed in the strict meaning of words, or on arguments deduced from nice and critical construction. It it would not be thought refining too much in this way, I would observe that each of the words (a) The original Congregationalists have always held that the distin- guishing character of sect is polity, not doctrines. 65 Christian Exam- iner, 200; Lamson's Dudley Lecture. (6) 1 Gibb. 4G0; 2 Rapin, 363. (c) 1 Gibb. 467, 503. If mere difference in doctrine should exempt any, it should be Unitarians. Blackst. Appendix, Priestley to Black- stone, 17, n. MAY TERM, 1803. 21 Muzzy v. Wilkins. used in the paragraph under consideration lias a particular and appropriate meaning, and that altogether they bear the sense I have put upon them. Persuasion refers to the opinion, conviction, or belief which occasions the separation. Sect means the party persuaded, or who, entertaining opin- ions different from the rest, are cut off or separated from the main body. Denomination is the next step in the process. It signifies the name the sect acquires when actually separated, and which is generally descriptive of the principal points in difference, (a) Thus Episcopacy is the government of the church by bishops, in opposition to Presbyterianism, or the government of the church by presbyteries or presbyters. Independents are so called from their maintaining, in opposi- tion to both the other sects, that each congregation is a complete church, and is in no respect subject to the control of others. The same observations may be made respecting Baptists, Quakers, &c. Where the difference is respecting matters of faith, the founder of the particular opinions generally gives his name to the disciples of that faith, as Calvinists, Lutherans, Arminians, Arians, Socinians, &c. It is true, as has been observed, that the word persuasion is oftentimes used with reference to sentiments or belief in doctrines. It is so used in Article V. But it is also used as synonymous with the words sect and denomination. (6) In this place it cannot alter the sense. In another part of this Article the same idea is conveyed by the word denomination alone. So sect and denomination are in this very paragraph used as equivalent to the three words, persuasion, sect, and denomination. This construction gives us solid ground to stand upon. Persuasion, sect, or denomination comprehend Episcopalians, Baptists, Congregationalists, Quakers, &c. Among these the discrim- (a) Presbyterians and Independents spoken of as distinct sects. 1 Holmes, American Annals, 442, 448, n. X. Lingard, 158, &c. Principles of Presbyterians and Independents essentially different. (b) Province Laws, p. 55; Temporary Laws, 49, 50. In 4 Belsham, Geo. III. 216, it is applied to Methodists, Dissenters, Churchmen. 2 Rapin, 742, n. 6; 1 Rapin, 849; 1 Dryden, Preface to Hind and Panther, 235. 22 HILLSBOROUGH. Muzzy v. Wilkins. inating features are well marked, — it is true, with lines of different degrees of distinctness and boldness, but still, with respect to all, marked and known. There are known bounds and limits to sects and denominations. But, if matters of doctrine discriminate, how far shall it be carried, where shall we stop ? There are a great number of divisions which have acquired a name of distinction, but the real divisions are still more numerous. No two persons precisely agree together, and the same man at different times differs from himself, (a) V. Our next inquiry is, Do Presbyterians differ from Con- gregationalists in discipline, church government, and worship, in the external forms ; are they a separate and distinct society ; do they usually associate and worship by them- selves ? (6) If we apply these tests to deists (for as to athe- ists, it is not proper to consider them as a religious sect), Calvinists, Arminians, Hopkinsians, Universalists, etc., it will appear that these are not distinct sects : they are found blended with all sects. Among Episcopalians there are Cal- vinists and Arminians ; there are .also many Universalists. Some of the dignitaries of the Church have embraced the Universal scheme ; Bishop Newton was a Universalist. Among the Congregationalists and Independents we may mention Dr. Priestley, Dr. Chauncey, Dr. Huntingdon, &c. Generally speaking, the Universalists have no distinct formu- lary of government and discipline. In large towns they sometimes associate and worship together, (c) But embrac- ing this tenet makes, in general, no more difference as to the (a) 1 Rapin, 322; 07 Monthly Review, 13. (6) See Hubbard, I. ch. 28, p. 182, 183, &c.; 2 Hubbard, 415, 410. Id. 418. " A Presbyterial spirit " was a term of reproach, as excluding the brethren. (c) So do Calvinists, &c. Now and then we find a Calvinistic society in the country. That Universalists are not a distinct sect from Congregationalists must now be considered as settled by the decision in Henderson & Peckham v. Erskine, in error, Cheshire, October Term, 1802. In the nature of things there is no more ground to exempt Universal- ists than Arminians from paying towards the support of a Hopkinsian teacher. MAY TERM, 1803. 23 Muzzy v. Wilkins. form of church government and discipline than embracing the Calvinist, Arminian, Hopkinsian opinions does. Let us now apply these tests to Presbyterians and Con- gregationalists. 1. The Presbyterians have a distinct directory of church government and discipline set forth in the same volume with their Confession of Faith, but separate and distinct from it. (a) Just so the Congregationalists have their code, called the Plat- form of Church Discipline, agreed upon at Cambridge, 1648, and afterwards ratified in 1680. They have also their Confession of Faith, in substance agreeing with the Presbyterian and the Episcopal, and differing little from the Romish. 2. Presbyterians usually worship by themselves, and form a distinct society from the other sects. Let us look at their ori- gin. (" Presbyterians," " Independents," Encyclopedia.) They are as old as the Reformation. With the Lutherans they sepa- rated from the Church of Rome, but they soon separated from each other. The Lutherans established the Episcopal form of church government. The disciples of Calvin established the Presbyterian, and it has existed ever since on the continent. It was afterwards established in Scotland, and carried by the Scotch, who immigrated in great numbers to Ireland, and planted there. It was brought both from Scotland and Ire- land to this country, and churches have been formed here on the model of the Church of Scotland, and professing to be governed by the same directory. Presbyterians, as Bishop Warburton justly observes, did not spring from fanaticism, as many wild sects have done. (6) The Independents are a sect of modern date, (e) The hierarchy established by Queen Elizabeth, the vestments (d) worn by the clergy in the celebration of divine worship, the (a) See IS Quarterly Review, 428; peculiarly fitted for Scotland. (6) Rapin considers Independents as springing from the Presbyterians. Indeed, he uses the word Presbyterian as a general term in opposition to Episcopal. 2 Rapin, 352, 514, n. 1. (c) See Mass. Hist. Coll. V. 206. Origin of Congregational Churches. See Origin of Congregationalism, Mass. Hist. Coll. VII. 265. Separation from Episcopal Church. Mass. Hist. Coll. IX. 101. () Mass. Hist. Coll. VI. 242, &c, 260; VII. id. 125. It seems ministers who had been before ordained were ordained over again. Mass. Hist. Coll. VII. 125 ; and Bentley's History of Salem ; Mass. Hist. Coll. VI. passim; Winthrop's Journal, 123, 124. Sed vide, Mass. Hist. Coll. IX. 12, &c. (c) How a church is formed. See Mass. Hist. Coll. VII. 14, 15, &c. ; Mass. Hist. Coll. IX. 192, 193. Ordination by the brethren of the church. Mass. Hist. Coll. VII. 39. One ordained by a bishop ordained again as a Congregationalism See President Stiles's Election Sermon, 2d ed. 103. Ordination. MAY TERM, 1803. 27 Muzzy v. Wilkins. whatever to the rite of ordination, upon which Presbyterians, as well as Episcopalians, lay so much stress. (2.) The Presbyterians maintain that ministers constituted in their mode, together with a certain number of laymen (chosen and ordained by them), form a judicature (1 Hub- bard, 18-1, 189), and are clothed with certain powers in ecclesiastical matters, extending over all Presbyterians in the same kingdom or state. Such society or parish has its session ; a number of parishes form a presbytery ; a larger division a synod, — and the whole are united under a general assembly. Churches or societies are not independent of each other, but connected and dependent. These different judicatories have cognizance of all questions relative to the government and discipline of the church and congregation. They examine, admit, ordain, and censure ministers ; they license probationers ; censure gross and contumacious sin- ners ; direct the sentence of excommunication ; resolve cases of conscience ; explain difficulties in doctrine or discipline. In these particulars consist the external order, strength, and steadfastness of the Presbyterian Church. Mass. Hist. Coll. IX. 3, 39 ; 1 Holmes, American Annals, 198, 199, 250, 251, 308, 309, 315, 354, 372. 1 Hazard's Collection, 490. There is this difference (in ancient times at least) between Congrega- tionalists, and Episcopalians and Presbyterians. In the two latter, ordi- nation does not connect a man with a particular church ; with the former it does ; the consent of the people is every thing ; at first the church was every thing ; since the town consent. It seems the establishment of a new church does not affect the contract made by the old with a minister, and it seems consent of the town is now necessary to dissolve ministerial con- nection (unless perhaps where there is the advice of council to authorize the ohurch to do it.) Mass. Hist. Coll. IX. 135, 136; badly reported. Ordained minister connected with a church, but not congregation — common. Mass. Hist. Coll. IX. 156. How church formed. Mass. Hist. Coll. IX. 154. Locality of a church. 2 Holmes, American Annals, 33, 34, 42. Winthrop's Journal, 213. A church in early time, 1640, might ordain a pastor privately ; but the common practice then was to give notice of the ordination to the neighboring churches and to the magistrates. This lat- ter is now disused. Winthrop's Journal, 268. 28 HILLSBOROUGH. Muzzy v. Wilkins. Among Congregation alists (a) each church is independent, if it chooses to be so. Eacli chooses and expels its members and its officers, and the sentence is final. Mass. Hist. Coll. IV. 134, 135; Mass. Hist. Coll. IX. 12, &c, 15, &c. Winthrop's Journal, 55, 56, and ante, 57 ; Colony Laws, 101. Among Presbyterians, if a member is expelled or excommunicated, he may be restored by a higher tribunal, and those who expelled him sentenced to take his place. The Episcopalians, in mat- ters of faith, discipline, and government, acknowledge, as su- perior, the king, bishops, &c. The Presbyterians, in matters of government and discipline, acknowledge, as superior, synods and general assemblies. (&) Each Congregational church acknowledges no superior on earth (Winthrop's Journal, 57), Colony Laws, 101. Congregationalists also differ from Pres- byterians in the mode of admission into the church. They generally require written or oral declarations of faith and religious experiences. Mass. Hist. Coll. IX. 16, n. (c) Some Congregational churches also differ as to baptism, denying it to all but children of believers in full communion ; others require a sort of half communion. To conclude what (a) Encyclopedia; "Independents." Wise, 20G, 209, 221, 224. This is that which principally characterizes the sect. 2 llapin, 514, and n. 1. Mass. Hist. Coll. IX. 14, 15. Some say the Congregationalist is a middle way between Presbyterians and Brownists. Wherein Congregationalists differ from others. Mass. Hist. Coll. IX. 15, &c. (6) And each contends that his form of government, Episcopal and Presbyterian, is most suitable to the word of God andyure divino. 2 llapin, 510, n. 1; id. 573. Congregationalists have synods, but they have no authority, &c. Mass. Hist. Coll. IX. 32. Independency. Ministers ordained over again; members dismissed from one church received into another in the same manner as if they never lyul been members of any church. Winthrop's Journal, 64; passim, 95. (c) 1696-1717. The church of Cambridge voted that a formal and public relation of religious experiences as a qualification for church fellow- ship was unnecessary. Mass. Hist. Coll. VII. 32; Mass. Hist. Coll. IX. 3. See Winthrop's Journal, 106, 167. MAY TERM, 1803. 29 Muzzy v. Wilkins. I have to say on church government, the Episcopalian Church is monarchical, the Presbyterian aristocratical, (a) and the Congregational democratical. (6) (3.) In worship there is little difference between the two sects. But still there is some. In the administration of the Lord's Supper the Presbyterian mode is reckoned the most solemn. Many Presbyterians esteem the difference as matter of consequence, though perhaps few carry it so far as the present plaintiff. He thinks it important that the bread should have no leaven in it. Even this seems to be of a3 much consequence as one of the stumbling-blocks to the Puritans, and which was one of the causes that led to the separation from the Episcopal Church, — the matter of the altar, and the garments worn by the priests on these occasions. 5. From this very brief view of the two sects, I think myself warranted in saying that Presbyterians and Congregationalists differ from each other as much at least as Baptists do from either, (c) (a) Republican. 27 Edinburgh Review, 335. (6) The Scriptures do not lay down any precise rules as to the ar- rangement of public worship, the form of church government, disci- pline, &c. It is not, therefore, wonderful that persons professing to take the Scriptures as their guide should entertain different opinions on these subjects. 5 Quarterly Review, 334, calls Presbyterian establishment a repub- lican government. 18 Quarterly Review, 429; 4 Burke, 112. 2 Burnet, Own Times, 406, 407. (c) And as much as Presbyterians differ from Episcopalians. Few foreign Protestants (Presbyterians) scruple to communicate with the Church of England. 2 Rapin, 784, 804. The hierarchy is the principal point on which Presbyterians and Epis- copalians are divided. 2 Rapin, 802, 805. Mather's Magnalia, passim, et 13, 14, 20; N. H. Hist. Coll. I. 77; Penhallow. See Heart of Mid-Lothian. Presbyterians hold that the General Assembly represent the Head of the Church, and have the sole and exclu- sive right of regulating whatever belongs to public worship. There is the jus dicinum of Presbytery as well as of Episcopacy. Independ- ents will not admit that any assembly of churchmen have any coercive power. 30 HILLSBOROUGH. Muzzy v. Wilkins. They were distinct sects and formed separate religious societies at the time our Constitution was made. And I am confident if it had then been understood that they were not to be so considered, no Presbyterian would have assented to that instrument. The Constitution, in using the words per- suasion, sect, or denomination, no doubt had reference to the sects at that time in being. Episcopalians, Baptists, Quakers, were at that time exempt. I do not know that the question at that time had arisen respecting Presbyteri- ans. («) Perhaps it would be going too far to say that these words shall not be construed to extend to sects that may spring up in future. When they arise and become dis- tinctly marked, they will doubtless be entitled to claim the privilege of exemption. From the construction now given to the Constitution, I apprehend that it will follow that towns and parishes are authorized to tax atheists, deists, revilers and contemners of religion, and persons of no religion at all, and who con- sequently belong to no particular denomination of Christians. It is only persons of a religious sect that are under any circumstances exempt from taxation in the corporate body to which they belong. And in this case the public are supposed to suffer no loss from the exemption, because such persons maintain religious instruction according to their own persuasion ; but this will not apply to those who have no religion. (6) VI. It has been said that Presbyterians and Congrega- tion alists agree in many things ; that they differ only in (a) It has since arisen in the case Steele v. The Assessors of Hillsborough, and it was then the unanimous opinion of the Court, in their direction to the jury, that Presbyterians were a different sect from Congregationalists. The jury found for the defendants; it is presumed on the ground that Steele was not a real Presbyterian, but a pretended one ; such was the weight of evidence. (6) In England the penal laws are in force as it respects persons of no religion. The toleration only extends to such serious, sober-minded dis- senters as shall have taken the oaths and subscribed the declaration re- quired, and who shall regularly repair to some registered place of public worship. Blackst. Appendix ; Answer to Priestley, 40. MAY TERM, 1803. 31 Muzzy v. Wilkins. trifling matters ; and that they often unite in worship and communion, (a) It is true they agree in many things. So do all sects. It is sufficient that they differ in such matters as are deemed by themselves essential. It is sufficient that many serious Christians of both these denominations cannot overcome their scruples ; cannot give up their preference for the order, discipline, worship, and government of the church, which prevails in their own sect, and constitutes its difference from all others. Dissenters in England (6) are allowed to say that they cannot in conscience join the Established Church ; that they cannot take the sacrament according to her rites and cere- monies. The substance of the thing is the same among all Protestants. Our Constitution allows all sects to say the same of each other. Where the denomination is different, and they do not in fact unite, they shall not be compelled to pay. Each sect has a right to prefer its own form, and each individual of the sect to appropriate his money to the support of public instruction in religion and morality in his own society. It must not be permitted to the prevailing sect to say, " Those who differ from us do it upon matters of indifference, or for no reasons." The majority have no (a) Dr. Tucker (remarks on Parsons's Sermons, 8) says Presbyterians and Congregationalists differ but in smaller matters, in which they can bear with each other, and often do, peaceably uniting in the same reli- gious society. See also New York Review, V., 90; McCrie's Life of Knox, 124. The more sober and learned Puritans inclined to that form which is known by the name of Presbyterian, &c. Robertson, History of America, 144. First settlers of New England not Brownists : id. ; though agreeing in many things, Brown went further and was out of credit in 1630; though Robertson seems to consider them as Brownists, 153, 189. If Brownists, it was in a milder form. The settlers at Plymouth and Boston were evi- dently different, though both had imbibed Puritanical notions. Robertson says they were Puritans of the strictest form, 158. Some of the num- ber retained a veneration for the ritual of the church. Id. 159. (6) Lord Mansfield, Blackst. Appendix, 150. 32 HILLSBOROUGH. Muzzy v. Wilkins. right to judge in this matter. It is no matter whether the points in difference between sects be great or small, as long as the parties concerned think them of sufficient consequence to induce a separation, (a) All the Protestant churches set out together, but they parted on the road. They fell out by the way. And yet, if we coolly and impartially examine the points on which they differed and separated, they will be found few in number and trifling in amount. It is true Presbyterians and Congregationalists (£) have been for some time approximating towards each other, but they have not yet formally united. Both sects have increased in Catholicism, all sects are approximating, the shades of difference have been for some time gradually wearing away, and a more liberal way of thinking generally prevails. () Offences, as it respects the offenders, or persons committing them, may be such — 1. As can only be committed by one person. Or, 2. Such as can only be committed by more than one. Or, 3. Such as may be committed by one or more. Of the first description is the crime of perjury. Every man swears for himself, and not for another. 2 Hawk. P. C. c. 25, §89. (a) In the heads of the statutes passed by the legislature of 'the Province of Massachusetts, 1699, &c, it is said, Acts and Laws passed, &c, 93, and passim. The title of the book is the same. The title of the New Hampshire Laws, ed. 1771, is similar. The edition of 1805 is called Laws of the State of New Hampshire, &c. See Hilton v. Ames, 7 Manuscript Reports (Cases before Revolution), 43, which was trespass for cutting and carrying away trees " contrary to the acts and laws of our said Province, in that case made and provided, whereby defendants have forfeited," &c. The suit was for the statute penalty. Manuscript Extracts from Old Records; statutes are called " laws made last assembly." p. 19. (6) On this head, see 2 Wms. Saund. 117 a, n. 2. FEBRUARY TERM, 1804. 57 Brown v. Hoit. Of the second class are riots, conspiracies, &c. To the third class belong assaults, batteries, thefts, libels, &c. There have been many absurd determinations on this subject. It was once holden that a person could not be in- dicted for a battery on two. But this was well ridiculed in a question put by Lord Mansfield. Cannot the King call a man to account because he broke two heads instead of one ? 2 Burr. 980, 984. It has been determined that two persons may be joined in an indictment for keeping a gaming-house, for maintenance, for extortion, &c. 2 Hawk. P. C. 25, § 89; 1 G. Bacon, 68. Two persons may concur in the act of selling a gill of rum ; and, if neither is licensed, the offence is committed by both ; if one licensed, he is not an offender, (a) It was not necessary to allege that the defendants were partners in trade, yet it might be material to charge both on the general issue. And, if the partnership were proved, and that the liquor was bought by both, to sell out by retail, though actually sold by one without any particular direction from the other, it is difficult to see how he could protect himself from any consequence which flowed from the act. (6) In the present case it is stated that both sold. Both might sell. The act is not several or sin- gle in its nature, with respect to the agents employed in doing it. (a) See 2 East, 569, Barnard v. Gostling ; one may have been acquitted and the other convicted. Sed vide 1 N. R. (4 Bos. & P.) 245. (6) The King v. Rusby, before Lord Kenyon, at Guildhall, July 4, 1800 (107 Univ. Mag. July, 1800, 65). Indictment for regrating thirty quarters of oats. The defendant was a partner with Thomas Smith and William Smith. The defence was that the re-sale was by Thomas Smith, the other partners dissenting from it ; and the doctrine is that the act of one partner is not the act of another in a crime. Lord Kknyon did not believe the evidence of the fact (that Thomas Smith re-sold and that defendant dissented), but told the jury that the defendant was liable for acts committed by his partners where his interest was concerned. Was not his interest concerned in this case, when, in consequence of this second sale, there was a profit of five per cent ? It was equally for the benefit of the whole partnership. Verdict, guilty. 58 ROCKINGHAM. Brown v. Hoit. Neither of these exceptions are sufficient in law to warrant us in pronouncing the declaration bad. There must there- fore be Judgment for the plaintiff, (a) 1 (a) 6 G. Bacon, 393. One penalty only can be recovered against both;* i. e., both are liable for the penalty or penalties incurred, and not each. On an indictment each would he liable for the penalty. See Cowp. 192, 610, 612. 1 The following conclusions have been held insufficient : — " Against the law in such case provided." • Commonwealth v. Stockbridge, 1814, 11 Mass. 279 (and see Commonwealth v. Morse, 1806,2 Mass. 138; and Peabody v. Hayt, 10 Mass. 1813, 36, 39). " And thereby, and by force of the statute in such case made and provided, an action hath accrued." Nichols v. Squire, 1827, 5 Pick. 168. " Whereby ... an action hath accrued to the plaintiff by force of laws and acts aforesaid." Has/cell v. Moody, 1829, 9 Pick. 162. " Whereby, and by force of the laws and statutes of the said United States, ... an action hath accrued." Cross v. United States, 1812, 1 Gall. 26. "Whereby, and by force of said act." the defendant hath forfeited "to the uses expressed in said statute, . . . and an action hath accrued." Sears v. United States, 1812, 1 Gall. 257. "Contrary to the law in such case made and provided." Smith v. United States, 1812, 1 Gall. 261. " In contempt of the laws of the United States of America." United States v. Andrews, 1832, 2 Paine, 451. "And thereby, and by force of the statute in such case made and provided, an action hath accrued." Wells v. Iggulden, 1824, 3 Barn. & C. 186. The following conclusions have been held sufficient : — " Contrary to the true intent and meaning of the act of the Congress of the United States in such case made and provided." United States v. Smith, 1820, 2 Mason, 143. " Contrary to the act of the General Assembly of the said State, in such case made and provided." State v. Turrtage, 1819, 2 Nott & M. 158. " Contrary to the statute." Stale v. Toadoine, 1796, 1 Brev. 16 (and see Commonwealth v. Caldwell, 1817, 14 Mass. 330). " By reason whereof, and by force of the statute in such case made and pro- vided, an action hath accrued to the State to recover." Crain v. The State, 1830, 2 Yerg. 390. (After reciting the statute and describing the offence according to the statute.) " Whereby, &c, by force of the statute in this case made and provided, the defendant forfeited $1000; and, by force of the statute, an action hath accrued." People v. Bartoiv, 1826, 6 Cow. 290. (After declaring on the statute by its title, reciting a part of the provisions, and setting out a breach.) " By reason of the premises, and by force of said statute," the defendant has become liable. Barkhamstead v. Par- • S. P. Tracy v. Perry, 1831, 5 N. II. 504. FEBRUARY TERM, 1804. 59 Brown v. Unit. This action was founded on § 1 of act of June 14, 1791, ed. 1805, 336. The defendants had leave to withdraw their demurrer after the judgment of the Court was given, but before it was en- tered, on payment, within six weeks, of all costs already accrued. It is conceived that this order was not complied with, and that at the next Term judgment was entered by agreement of parties, in favor of plaintiff, for a certain number of penalties. sons, 1819, 3 Conn. 1. " That, by force of said statute, an action has accrued." Doane v. Cummins, 1835, 11 Conn. 152. (In a revenue infor- mation, after stating the offence minutely, so as to bring it within the act.) That, by reason thereof, the defendant's boat was forfeited " according to the statute in that case made and provided," and . . . that defendant had thereby forfeited a certain sum, the Commissioners of Customs having " by virtue of the said statute " elected to sue for the treble value of the goods, instead of the penalty. Attorney-General v. Ratlenbury, 1821, 9 Price, 397. See also Weston, J., in Darter v. Martin, 1827, 5 Greenl. 76, 79. Under the statutes now in force in some States an insufficient conclu- sion is not a fatal defect. See 1 Arch. Cr. Prac. & PL, Am. ed. 18G0, 307; also State v. Tribatt, 1849, 10 Ired. 151; Levy v. Gowdy, 1861, 2 Allen. 320. An indictment against two persons for a single unlicensed sale of liquor was sustained in Commonwealth v. Tower, 1844, 8 Mete. 527; and also in Commonwealth v. Sloan, 1849, 4 Cush. 52. In State v. Wiggin, 1846, 20 N. H. 449, and State v. Burns, 1847, 20 N. H. 550, the objection that two respondents were improperly joined was not taken. See also 1 Bish. Cr. Proc, lsted., § 220. 60 CHESHIRE. Fisher v. Steward. CHESHIRE, MAY TERM, 1804. Abraham Fisher and Eliel Parmele v. Jonas Steward. One who finds a swarm of bees in a tree on another's land, marks the tree, and notifies the land-owner, cannot maintain trover against the land-owner for taking the honey. Trover for a swarm of bees. There was a second count for two hundred pounds of honey in the comb. The case was, the plaintiffs found a swarm of bees in a tree on the [defendant's] land in Claremont, marked the tree, and notified the defendant, who cut down the tree, September, 1803, and converted the honey to his own use. Plea : the general issue. At the trial there was some dispute whether the plaintiffs or one of the defendant's family first discovered the bees, and whether the plaintiffs gave notice of the finding and marking the tree. The other parts of the case were proved. The Court summed up, and observed that two questions had been made on the trial : first, whether the plaintiffs first discovered the bees ; and, secondly, supposing they did, whether the property of the honey was in them. The first is a question of evidence proper for the considera- tion of the jury. The second is a question of law, and one about which the Court entertain no doubt. The plaintiffs do not pretend to have any property in the land or in the tree, nor had they any property in the bees. How then came they by a property in the honey? It must have been by occupancy. But how did they occupy, or appropriate the honey to themselves ? They saw the bees enter the tree, they heard them make a noise near the tree, and they marked the tree. The two first gave MAY TERM, 1804. 61 Fisher v. Steward. no right ; they do not amount to occupancy. The marking of the tree was a trespass, and consequently can avail the plaintiffs nothing, (a) The doctrine contended for by plaintiffs is injurious to the rights of property. Till the bees occupied the tree in question, it is not pretended that plaintiffs had any right in it. What gave them a right? Having seen a swarm of bees, in which they had no property, occupying it ? This circumstance, whether the effect of accident, or the result of labor and skill, cannot lessen the rights of the owner of the soil. Will it be pretended that plaintiffs thereby ac- quired a right to the tree? If they acquired a title to the honey, they must necessarily have a right to take it away, to cut down the tree, to pass over the defendant's land for the purpose, &c. Admitting that plaintiffs could acquire prop- erty in a swarm of bees, or in the honey, by finding, in some cases, they could not do so in the present case, because such right or property interferes with the rights and property clearly vested in defendant; it is inconsistent with it; it lessens its value at least. It is much more consonant to our ideas of property to say, that the bees and honey in the de- fendant's trees belong to him in the same manner and for the same reason as all mines and minerals belong to the owner of the soil. (6) (a) Pierson v. Post, 3 Caines, 175. (6) 2 Blackst. 390-39 1. Bees are ferae, natures,, except when hived or reclaimed; when a swarm lights on my tree they are not mine. But it would seem that, if they hive themselves in my tree, they are then mine, ralione soli. And, if they are found on my ground, I have a qualified property in them; to the young, ratione impotentia* ; and to the labor of the bees, or honey, because they are on my land and use my hive. I have, on these accounts, to say the least of it, a better title than any other person. See Shep. Touch. 223 (226) [5 Mod. 375, cited in Manuscript Digest]. It would seem, by c. 13 of Charta Forestoe, that honey belongs to the owner of the ground. 1 Reeves, Hist. Eng. Law, 255; Blackst. Tracts, 83. 2 Senator, 382, 498; Tho. Livingston, appellant, v. Earl of Breadalbane, defendant. Appeal from the Court of Session in Scotland, to determine the point whether a gentleman, qualified by law to shoot, is entitled to kill game on the unenclosed lands of another without his permission. The House of Lords, as well as the Court of Session, determined against the right. 62 CHESHIRE. Fislier v. Steward. Will it be pretended by the plaintiffs that they could have put, without defendant's permission, a swarm of bees into the defendant's tree, and there kept them till they had made honey ; and then, in case he cut down the tree, maintained trespass for the cutting, or trover for the honey? One would suppose that the present case was not stronger than that; here they had no right to the bees. It has been said, that, by the usage in this part of the State, the person who finds bees acquires a property in them wherever found. We recognize no such usage. We have' no local cus- toms or usages which are binding in one part of the State and not in another. If this be the law here, it must be so in every other part of the State. Verdict for defendant. 1 1 Sustained by Gillet v. Mason, 1810, 7 Johns. 16; see also Cukia, in Ferguson v. Miller, 1823, 1 Cow. 243, 244; The Court, in Merrils v. Goodwin, 1790, 1 Root, 209; Toomer, J., in Idol v. Jones, 1829, 2 Dev. L. 1G2-164. As to the right of the owner of bees, which, after having been reclaimed, take up their abode in a tree on the soil of another, see Goff v. Kilts, 1836, 15 Wend. 550. As to the conflicting claims of third persons who have each obtained the consent of the land-owner to the taking of honey from a tree, see Adams v. Burton, 1870, 43 Vt. 36. In Wallis v. Mease, 1811, 3 Binn. 546, the point decided was, that taking bees from a tree on the land of another is not a felony. As to the right of property, of the owner of the soil, in the bees, Tilghman, C. J., and Bkackeniudgk, J., do not seem agreed. The general subject of the property of the owner of the soil in wild animals was much discussed in Blades v. Higgs, 1865, 11 II. L. 621 (106 Eng. Com. Law, 886), where it was held " that game killed upon the land of another by a trespasser, and carried off by him, belongs to the owner of the land." MAY TERM, 1804. 63 Harris v. VVillanl. Levi Harris v. Jonas Willard, Samuel Prouty, and James Egbrton. The purcliaser of a tax title, which proves invalid by reason of errors in the assessment, cannot sue the selectmen for errors which are not due to fraud, malice, or wilful neglect. Even if the original purchaser at the tax sale could maintain such an action, a purchaser under him could not. This was an action on the case. The declaration stated that the defendants were duly appointed and qualified selectmen and assessors for the town of Langdon for the years 1787, 1788 ; accepted, and entered upon the duties of the said offices; "that the defendants, as such officers, were by law obliged to make out under their hands, and deliver to the collector of taxes for said Langdon, for said years, a good and sufficient list of the rates and taxes by the said collector to be collected ; and, where the owners of lands in said Langdon liable to be taxed were not resident therein, and were known, they, the said selectmen, ought to have assessed such lands in the name of such known owner ; and, where the owners of such non-resident lands were not known, then the said selectmen ought to have assessed such lands in the name of the original proprietor or owner thereof, and each lot and undivided land belonging to such proprietor's or owner's share ought to have been set down separately in said list of rates and taxes." The declaration then set forth that one Levi Fairbanks was duly chosen and qualified collector of taxes for said Langdon for the said years, and entered upon the duties of said office ; " and the plaintiff avers that the defendants, selectmen and assessors as aforesaid, were by law obliged to deliver to the said Fairbanks, collector as aforesaid, a good and sufficient list of the rates and taxes by the said Fairbanks to be collected, containing all the facts as above specified, and signed by the said selectmen." The plaintiff then avers " that the defendants, regardless of their duty as selectmen and assessors aforesaid, did not make out and 64 CHESHIRE. Harris v. Willard. deliver to the said Fairbanks a good and sufficient list of the rates and taxes by the said Fairbanks, in his said capacity, to be collected ; but they, the said selectmen, delivered to the said Fairbanks a bad and insufficient list, &c.,as they did not sign the same, nor assess the lands of non-residents either in the names of the then owners or of the original proprietors or owners thereof ; and the said list was in many other respects wholly imperfect and insufficient." The declaration then set forth that the collector, Dec. 15, 1789, made a deed of conveyance, for a valuable consideration, to one Abiah Walker, of forty acres of land situate in said Langdon, he being the highest bidder at a public vendue duly notified and holden for the sale of lands of delinquent non-resident proprietors ; that Walker afterwards, on April 15, 1794, conveyed the premises to one Zenas Fairbanks ; who, June 8, 1797, conveyed to the plaintiff. The declaration then set forth, that one Joseph Jones, at Superior Court, Cheshire, May Term, 1802, recovered against the plaintiff possession of the said forty acres of land, and costs taxed at $34.51 ; " and the plaintiff further avers that it was wholly in consequence of the insufficiency of the aforesaid lists of rates and taxes, which were delivered by the defendants as aforesaid to the said Fairbanks, that the plain- tiff's title to the said forty acres of land failed, and that the same was legally recovered from him by the said Jones ; so, b} r reason of the default and malfeasance of the defendants in their office of selectmen and assessors aforesaid, in not fur- nishing the said collector with proper lists of rates and taxes, as by law they were obliged to do, the plaintiff has been greatly injured, has lost said land, and been obliged to expend and pay the sum of two hundred [dollars], and be at great trouble and pains, to his damage, five hundred dollars." The defendants demurred, and the plaintiff joined in demurrer. Smith, C. J., after stating the pleadings, delivered the opinion of the Court. By these pleadings it is admitted that the defendants were MAY TERM, 1804. 65 Harris v. Willard. selectmen ; that they made a list of taxes, and delivered it to the collector, which was not signed by them ; and that in the list the lands of non-residents were not assessed either in the names of the then owners or original proprietor ; that forty acres sold by the collector to a person under whom the plaintiff claims has been, through the insufficiency of the list, recovered from the plaintiff in a suit at law. Are the defaults and malfeasances thus described any cause of action against selectmen, and is the plaintiff so situated that he can maintain the action ? It is not sufficient to state generally that the defendants were guilty of neglect of duty or malfeasance in office, that the list was insufficient, &c. The particular defect must be pointed out. 2 Ld. Raym. 948. Therefore the allegation, that the list was in many other respects wholly imperfect and insufficient, is of no avail ; as it is not well pleaded, it is not confessed by the demurrer. These defects must also be such as to vitiate the title. Here it is stated that the title failed on account of the defects in the list, but whether the defects particularly specified, or others, is not alleged. Perhaps this part of the declaration is not material. It is not easy to see how it could be traversed or proved. Perhaps the action may as Avell lie before as after the trial of the title. Certainly the present defendants are not to be affected by a judgment where they were not parties to the suit. It is not stated in this declaration that the defendants have practised any fraud, that they have acted maliciously, or that they have been guilty of wilful neglect. They would doubt- less be answerable, if either of these things were stated and proved against them. But, inasmuch as they are not stated, we are not to presume that they exist. In this case we are at liberty to indulge the charitable spirit of the law, and presume that the defendants, if they erred, erred through ignorance, inattention, or mistake, not from design. Even this error is, in many cases, sufficient to charge persons with the conse- quences of their doings or omissions, — as in the case of persons receiving a reward for their services ; persons clothed with a 5 66 CHESHIRE. Harris v. Willard. trust; sheriffs, and ministerial officers generally. But is it suf- ficient to charge the present defendants ? Before we attempt an answer to this question, we will first consider whether the instances of default or malfeasance speci- fied are really such. I. In omitting to sign the lists. The act of June 12, 1784, folio ed. 324, is silent on the sub- ject of signing the list or assessment. (a) It says, the lands shall be assessed so and so ; that the assessment shall be delivered to the collector; that a copy of the list attested by the select- men shall be forwarded to the receiver at Exeter, &c. It is well known that in many cases the practice was for the select- men to annex the list to the warrant, or the warrant to the list, and to refer to it in such a manner as to make both but one instrument ; the warrant was signed, and that answered for both. And the reason for requiring the selectmen to attest the copy of the list forwarded to the receiver at Exeter prob- ably was because the original was not signed by them. It was probably thought improper that the collector should certify an extract or part only. The act of Feb. 8, 1791, ed. 1797, 196, 197, expressly re- quires that the selectmen shall make lists under their hands, and commit the same to the collector, with a warrant under their hands and seals in due form of law. These lists must be signed, because they, and not the warrants, are to be recorded in the town-book But this act was made after the transaction now under consideration, and therefore does not apply. It is true the acts of May 2, 1719, Prov. Law, 138, and 12 Geo. II. c. 112, p. 172, require the lists or rates and assess- ments to be under the hands of the selectmen and assessors, to be committed to the constable to collect, with a warrant there- upon, to be signed by the selectmen, or town-clerk by their order. These acts do not refer to lists of taxes on the lands of non-residents, which were not taxed till 1777 ; and the method of assessing as well as collecting taxes on this species of prop- («) The Acts, (olio ed. 333, 374, H. B. 103, are not material in this action. MAY TERM, 1804. 67 Harris v. Willard. erty seems to be wholly contained in the acts of that and the subsequent years. But, if it should be thought that in 1787 and 1788 the lists must be under the hands of the selectmen, is not their signa- ture to the warrant accompanying the list sufficient ? ! In Harper v. Meloon, in error, Strafford, February Term, 1803, 3 Manuscript Reports, 115, it was determined that, under the act of June 21, 1797, ed. 1797, 496, which required the party making the demand to be submitted to make out a particular statement thereof, under his hand, in writing, and to lodge the same with the justice, &c, it was a sufficient signing if the demand was included in the body of the submission which was signed, as the act required, by both parties. 2 So in the case of wills, though the act requires signing, it is held that if the will be written by the testator, it is sufficient. II. With regard to the second defect stated, — namely, that the non-resident lands were neither assessed to the present owner nor to the original proprietor, — the duty of the select- men seems to be of a judicial nature. Who is the present owner of a particular piece of land, and who was the original proprietor, are questions about which courts of law are daily employed. Would it not be thought unreasonable that courts should be answerable for their decisions? The same question is differently decided at different Terms. This part of the statute must have a reasonable construction put upon it. 1 Rob. Adm. 221. On the one hand, we must not weaken the effect of the law on this subject by too great tenderness to particular hardships ; but cases of unavoidable accident, invin- cible necessity, or the like, — cases where the party could not act otherwise than he did, or has acted at least for the best, — must be considered in all laws. All statutes must be subject to considerations of rational equity. Laws which would not admit of this, which would not admit of the exercise of a fair discretion under difficulties, would do more hurt than good ; they would not be framed for human societies. With these rules of interpretation for our guide, — and they are conceived 1 See Bailey v. Ackennan, 1874, 54 N. H. 527. 8 But see Smith v. Kimball, 1817, 1 N. H. 72. 68 CHESHIRE. Harris v. Willard. to be legal ones, — what is the meaning of the clause in our statute which makes it the duty of the selectmen to assess non- resident lands to the present owner, if known ; if not, to the original proprietor? The meaning is only that the selectmen shall use their best endeavors to ascertain the one and the other. To say that they are bound at all events to judge right would lead to the greatest injustice. Suppose the selectmen to witness a conveyance from a person considered as owner, — for twenty years in possession, no claim of title by any other person, — and the same day assess him [the grantee ?] as present owner. It might turn out that the seller was not the proprietor. This deed may be adjudged fraudulent as against creditors. It is requiring an impossibility, to require absolute certainty in a case like this. It is not necessary. The only use in naming the owner — for the tax is on the land — is to give notice ; and to name the reputed owner is even better than to name the true owner in some cases. With respect to the other alternative, that of taxing to the original proprietor, the difficulty is the same in kind, though not so great in de- gree. Suppose mistake in copy of charter. Suppose a case which has often occurred, — two grants. Are the selectmen bound to decide which is good in law? The legislature were aware of the difficulty, and have since endeavored to apply a remedy, (a) In discharging this part of their duty, as every other, select- men [are] not [bound] to judge right at all events, but to act according to their best discretion. It does not appear in this case that they have acted otherwise. If there is any possible case where neither the names of the present owner and the orig- inal proprietor could not [?J be known, we are at liberty to presume this was such a case ; 1 and all the selectmen could do (a) See Revised Laws, ed. 1792, 188, act of Dec. 28, 1791. The act of Dec. 10, 1796, ed. 1797, 452, declares that, if the owner and original proprietor be unknown, then the quantity of the land, the number of the range, and lot, if lotted, — otherwise such description as the land is usually known by — shall be deemed sufficient. 1 See Cardigan v. Page, 1833, 6 N. H. 182; Smith v. Messer, 1845, 17 N. H. 420. MAY TERM, 1804. 69 Harris v. Willard. was to give such description of the land taxed as it was usu- ally known by. If the defendants are answerable in this case, then selectmen are liable for every mistake or error in judg- ment they may commit in the execution of their office. If this be the case, I say with Mr. Justice Powell, in Ashby v. White, it will be dangerous to undertake an office of this nature. It will effectually deter men from executing public offices, and especially this necessary one. Ashby v. White, 2 Ld. Raym. 949 ; 3 Ld. Raym. 323 ; Co. Litt. 81 b, n. 2. In the case just referred to {Ashby v. White), which was for refusing the plaintiff's vote for members of Parliament, the declaration stated that the defendants, constables of the borough and presiding officers at the election for members of Parliament, well knowing the plaintiff's right to vote, but contriving fraudulently and maliciously, intending to hinder and deprive him of his privilege, did hinder and obstruct, &c. In Harman v. Tappenden, 1 East, 555, it was determined that an action does not lie against individuals for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff, — at least not without proof of malice. The action was against officers and members of a corporation for disfranchising the plaintiff, whereby he lost certain profits of his office, &c. [It was held that] no action lies against a corporator for mere mistake or error in judgment. Here was no malice. Wilfully and maliciously disfranchising may per- haps be sufficient ground of action. Drewe v. Coulton, Mayor of Saltash, for wrongfully hindering the plaintiff from voting for member of Parliament. 1 East, 563, n. It must be charged substantially that defendant acted maliciously ; acting wrong knowingly is equivalent. In Ashby v. White, the House of Lords held there was implied malice, which was sufficient. Justice Buller, N. P. 64, lays it down thus, that an action lies for a wilful misbehavior in a minis- terial officer, by which a party is damnified, — "wilful" means, according to Mr. Justice Wilson, contrary to a man's own conviction. Where an officer is compellable to act, there are few cases where he is liable where he acts according to the best of his 70 CHESHIRE. Harris v. Willard. judgment. It is otherwise where the officer has an option whether lie will act or not. A revenue officer is a mere vol- unteer; therefore liable for mistakes. But it is otherwise with magistrates, (a) The principle upon which it is attempted to found the pres- ent action is, that every person undertaking any office is bound to discharge its duties with integrity, diligence, and skill. 3 Blackst. 105. (ft) All men in office are answerable, but in different degrees. Some ministerial officers acting for fees or reward are answera- ble for the smallest neglect, and, in some cases, for a mere mis- take ; as sheriffs, registers of deeds, revenue officers, &c. Some — and this is the case wherever the office is judicial, or of a judicial nature — are only answerable for fraud, acts proceed- ing from an evil design. Ministerial officers, and others, perhaps, are liable for their acts, where they are guilty of excess of jurisdiction. 4 T. R. 796. The office of selectmen seems to be partly ministerial and partly of a judicial nature. It is compulsory. [N. H. Laws], ed. 1805, 196, 197. It can scarcely be said that they act for fees or reward. They are therefore liable only for wilful mis- behavior ; for fraudulent and malicious acts ; and perhaps, as it respects the town, for gross negligence, — not for mistakes or mere error in judgment ; not for ignorance. Others undertake to judge of their knowledge and qualifications. They are only to do the best they can. 1 (a) Where the judgment or opinion of an officer is by law to be his guide, he is not answerable, unless for wilful misconduct. 2 Caines, 315. (/>) All men in office are amenable to the law for every part of their official conduct, and obnoxious to punishment when convicted of not hav- ing acted when they ought to act, of not having acted faithfully. Rex v. BembriJge, 5 Pol. Mag. 15; Notanda, 15, 17. 1 Compare Waldron v. Berry, 1871, 51 N. II. 136, with Henry v. Sar- geant, 1848, 13 N. H 321, and Walker v. Cochran, 1835, 8 N. H. 166. See also State v. Smith, 1846, 18 N. H 91 ; and instructions to jury in Tyler v. Flanders, 1873-1876, 57 N. H. 618, 620. MAY TERM, 1804. 71 Harris v. Willard. This is the first action of the kind that is recollected to have been brought in this State; and yet, if it lies, the occa- sions for bringing it have been many. The errors of select- men have been many. Individuals and the public have been injured thereby. We have no authorities, no decided cases to guide us. This is not conclusive against the action, but it ought to lead us to be cautious how we tread where there are no footsteps to point out the way; and this caution is the more necessary as our decision now will be a precedent for future cases similarly circumstanced. It is a maxim of law, Quod inconveniens est non licitum est ; and this maxim is wise and good, when applied to new actions or undecided points. Where it is clear upon principles or judicial decisions that an action or defence may be main- tained, the inconvenience will not avail. Here the law cannot be said to be very clear on the part of the plaintiff. The in- conveniences of sustaining this action are many. No prudent man would act in the office of selectman where he must act in every case at his peril ; where he must not only judge right on every question of law, but where his judgment must coin- cide with judges and jurors examining the same point forty years afterwards. No tax could be collected. The laws on this subject are very loosely penned ; oftentimes they were not distributed seasonably. Between November, 1777, and January, 1792, — less than fifteen years, — fifteen acts have been made ; five new systems, each different from the other, have been in operation within that period. Gentlemen of the profession will have the candor to acknowledge that they have no small difficulty in construing these laws. Is it reasonable to suppose that selectmen should never err ? If this action be maintainable, it is not extravagant to say that damages may be recovered, exceeding in amount the property of all the selectmen in the State for the last twenty- five years. 1 Ten thousand actions might instantly be brought ; 1 In the absence of a vote to indemnify, a selectman cannot maintain an action against a town to recover indemnity for the consequences of as- sessing a tax for money voted by the town to be raised for an illegal pur- pose. Wadsworth v. Henniker, 1857, 35 N. H. 189. 72 CHESHIRE. Harris i>. Willard. and, if maintainable, purchasers at vendue will have no in- ducement to compromise with the original proprietors. It is much more reasonable to say that the purchaser, who may, if he pleases, examine the doings of the selectmen before he purchases, shall judge of them and run all risks, except in those cases where they do wrong wilfully, maliciously, and fraudulently. It only remains to examine the second question, whether, on the supposition that an action can be maintained against selectmen for defaults like these, the present plaintiff can maintain such action. Abiah Walker attempted to sell to Zenas Fairbanks the land in question. The land did not pass. Could he sell his remedy against the persons through whose default the land did not pass ? He may enter into covenants with Zenas Fair- banks, which the latter may assign to Levi Harris, the plaintiff. And, for the same reason, he may assign to Zenas Fairbanks the covenants made with him by the collector. Because the rule of law is that covenants pass with the land. But was it ever heard that an action of the case could be assigned ? A. sells the horse of a stranger to B., who sells to C. The stranger recovers his horse of C. Can the latter sue A. for the fraud in the sale? No such action was ever brought. 1 Senator, 312, 313. Livesay, Hargrave, & Co. made a bill of exchange payable to John White, a fictitious person, or his order, and caused the name of John White to be indorsed, and the indorsement filled up with an order to pay the contents to them. L., H., & Co., or order. Afterwards L., H., & Co., by their agent. Barber, sold the bill for a full and valuable con- sideration to Minet & Fector, and indorsed it to them. Gib- son & Johnson, on whom the bill was drawn, knowing that there was no such person as John White, accepted. Action by Minet & Fector against Gibson & Johnson as acceptors. It was said in the course of the argument that an action might be maintained against L., H., & Co., the drawers, for a fraud, giving the bill the appearance of remedy against John White, which it had not in reality. But Lord Kenyon said that MAY TERM, 1804. 73 Harris v. Willard. this right of redress could not be transferred. That is, the second indorsee cannot maintain an action for a fraud in the drawer, though drawee and first indorser doubtless might. 1 Judgment for defendants. 2 1 Minet v. Gibson is also reported in 3 T. R. 481 ; and in 1 H. Bl. 569. 2 In Hamilton v. Valiant, 1868, 30 Md. 139, it is held, that a purchaser at a tax sale, whose title proves invalid in consequence of an omission by the collector, cannot maintain an action against the collector. But see Black- well on Tax Titles, 444. A public officer executing a tax deed, with the covenants prescribed by statute, is not personally liable on those covenants, even when the title fails on account of errors in his own proceedings. Stephenson v . Weeks, 1850, 22 N. H. 257. Woods, J., 264, "If an injury be sustained in the case of a collector or a sheriff, in discharging the duties of a collector of taxes, as is alleged in the present case, redress must be sought in some other mode than by force of covenants merely official, and entered into in accordance with, and by force of, a statute, and constituting and in- tended only as a part of the form of the conveyance prescribed by the legislature to be made in pursuance of a tax sale." In Maine and Massachusetts, the purchaser of an invalid tax title cannot maintain an action against the county or town to recover the considera- tion. Emerson v. County of Washington, 1832, 9 Greenl. 88 (overruling a dictum in Joy v. County of Oxford, 1824, 3 Greenl. 131, 134) ; Shepley, J., in Treat v. Orono, 1846, 26 Me. 217; Shepley, C. J., in Packard v. New Limerick, 1852, 34 Me. 266; 269, 270; Lynde v. Melrose, 1865, 10 Allen, 49. See also Campbell, J., in Bice v. Auditor- General, 1874, 30 Mich. 12, 13; Gregory, C. J., in City of Indianapolis v. Langsdale, 1868, 29 Ind. 486, 488. In Corbin v. City of Davenport, 1859, 9 Iowa, 239, the purchaser recov- ered back the consideration; the tax title having proved invalid, for the reason that the owner had paid the tax before the sale. The liability of the city to refund was admitted; and the only point in dispute related to interest. Whether the action was brought under a statute is not stated. See Code of Iowa, 1851, § 509; Iowa Laws, Revision of 1860, § 785 ; pro- viding that the purchaser shall be held harmless by the county in certain cases. In Phillips v. City of Hudson, 1864, 31 N. J. L. (2 Vroom) , 143, there had been a tax sale of land for a term of ten thousand years ; the money had been paid by the purchaser, and a " declaration of sale " delivered to him. The law gave the owner two years to redeem; the purchaser's term not to commence, nor the purchaser to have right of possession, until after the expiration of the two years. It also provided that the common coun- cil should advertise sixty days' notice of the expiration of the time of re- demption. The council neglected to give this notice. Held, that the 74 GRAFTON. Melven v. Darling. GRAFTON, NOVEMBER TERM, 1803. Isaac Melven v. Daniel Darling (June, 1802, James Gorman admitted Defendant). An unsatisfied judgment against a trustee in foreign attachment, for the amount of a debt secured by mortgage, is a bar to a subsequent action by the principal defendant against the trustee upon the mortgage. Ejectment 1 for a parcel of land in Plymouth, eighteen acres. buyer at the tax sale could recover back the purchase-money. (Beasley, C. J., concurred only on the ground " that, until the advertisement was duly made, the matter remained inferi.'" " The rule of caveat emptor does not apply until the transaction is complete." p. 165.) See also Dillon, J., in Mclnerny v. Reed, 1867, 23 Iowa, 410, 416, 417; Paine, J., in Norton v. Supervisors of Rock County, 1861, 13 Wis. 611, 613, 614. In Gardner v. Mayor of Troy, 1857, 26 Barb. 423, the plaintiff was not a purchaser at the tax sale, but in effect a subsequent purchaser from the city. The statutes of some States give a remedy to the purchaser of an in- valid tax title in certain cases. See Sautters v. Town of Victory, 1862, 35 Vt. 351; Morton v. Shortridge, 1872, 38 Ind. 492; Rice v. Auditor- General, 1874, 30 Mich. 12; Warner v. Supervisors of Outagamie County, 1865, 19 Wis. 611; Rev. Stat, of Ohio, 2 Swan & Critchf. 1472, 1473; Lamborn v. County Commissioners of Dixon, Sup. Ct. U. S. Oct. 1877, cited in 17 Alb. Law Jour. 252, 253. As to the right of a sub-vendee to sue, see Paine, J., in Norton v. Su- pervisors of Rock County, ubi sup. 614. 1 The record shows that the action, though styled "a plea of eject- ment," was in substance a writ of entry. This is probably the case with all the so-called "actions of ejectment" reported in the present volume. As to this nomenclature, and as to the forms of actions for the recovery of land which have at different times been used in this State, see Wilcox, J., in Potter v. Raker, 1848, 19 N. H. 166-168 ; Sargent, J., in Woodbury v. Woodbury, 1866, 47 N. H. 11, 23, and in Pierce v. Jaquith, 1868, 48 N. H. 231, 234 ; Prilchard v. Atkinson, 1827, 4 N. H. 140, 141; Perley, C J., in Dexter v. Sullivan, 1857, 34 N. H. 478, 481. NOVEMBER TERM, 1803. 75 Melven v. Darlinp. The plaintiff declared that James Gorman was seised April 15, 1795, and conveyed to plaintiff to hold in mortgage. Plea : not guilty. The condition of the mortgage was to pay $110 in thirty months, with interest. The defence was payment. Melven's creditors attached this debt due from Gorman ; and he has paid, or will be compelled to pay, the whole debt, principal and interest. There were several attaching creditors. Actual payment was made before this suit commenced, except in one instance. In that, judgment was rendered against Gorman as trustee ; but it was not satisfied at the trial (at June Term, 1803). Some doubt arising whether this latter sum could be allowed, the cause was taken from the jury by consent of parties ; and it was farther agreed that the facts, as then proved and here stated, should be considered as a case stated for the opinion of the Court. Porter, for plaintiff. Thompson, for defendant. By the Court. I. Payment by the mortgagor, under our statute, before the commencement of the suit on the mortgage, though after the time limited for payment, is a good defence. It was so determined in the Circuit Court of the United States, New Hampshire District, Nov. 1801, Inches v. Warner, Man- uscript Report. And there can be no question but that a debt secured by mort- gage, and the evidence of the debt not a negotiable note, and not assigned so as to pass the property in equity, is attachable. II. But can the debtor avail himself, in an action brought by his creditor, of a judgment against him as garnishee, not executed, or where the money has not yet been paid ? It is clear that service on the trustee makes him liable to the plaintiff in foreign attachment for what he, the trustee, then owes the principal debtor. And actual payment to his creditor will not relieve him from that liability. Laws, ed. 76 GRAFTON. Melven v. Darling. 1805, 143, 144. The principal debtor may discharge the trustee at any time after attachment of the debt, even after judgment and execution issued, by payment of the debt so attached and condemned. The statute, p. 146, enacts that the goods, effects, or credits of the principal debtor, so taken as aforesaid, by process and judgment of law, out of the hands of the trustee, shall discharge him against the action or demand of his principal or creditor. Attachment before judgment is cer- tainly a good defence for the trustee against his creditor's action, as long as it remains in force and undischarged. It is a good temporary bar. (a) If the attachment be dis- charged at any time before judgment, for example by the principal debtor's paying the debt, he is deprived of his bar ; but ought to be allowed to deduct his costs in the foreign attachment, and not to be charged with costs in the suit of his creditor. After judgment against the principal debtor in the foreign attachment, and against the trustee, he can make no defence : he is bound at all events to pay. The plaintiff in foreign attachment has become his creditor, his judgment creditor. (6) It is true the plaintiff may also resort to his debtor for satisfaction. If he [the principal defendant] does actually satisfy, though after judgment (a) 2 G. Bacon, 261. Debt on bond, penalty £100, conditioned for the payment of £50 at a certain day. Plea : attached (by custom of London) before the day limited for payment, and paid after the day, on scire facias . This is a good bar of the action for the penalty (when the law was that payment could not be pleaded in bar at law, unless made at the day), because, the attachment being made before the day of payment, it became a debt to the creditor, and the obligee could take no advantage of a breach of the condition afterwards. Here the attachment was deemed equivalent to payment; and so it ought, as between the trustee and principal debtor, until it is removed. The liability of the trustee to pay under the foreign attaohment exempted him from the forfeiture of his obligation. So here, from forfeiture of the mortgage. (b) 1 Salk. 280. Condemnation in foreign attachment may be given in evidence, if before suit commenced by the principal against the garnishee. The property is altered. Pleadable in abatement. 5 Johns. 101. NOVEMBER TERM, 1803. 77 Melven v. Darling. against the trustee, then the trustee is deprived of his bar, and entitled only to his costs. If the plaintiff in foreign attachment, after obtaining satisfaction of the principal debtor, attempt to enforce the execution against the trustee, he may be relieved by audita querela. From this view of the case it seems very clear that nothing can hinder the trustee from availing himself in evidence, or plea in bar, of a judgment against him, but that which does not exist in this case, namely, payment by the principal debtor. And if this should be allowed to be a perpetual bar, it imposes no hardship on the trustee ; l for he may prevent it by paying the debt. This construction seems warranted by the letter, as well as spirit, of the statute. The effects or credits of the principal debtor are " taken " by process and judgment of law. It is conceived, that what is laid down in 2 G. Bacon, 262, from Rolle's Abridgment, is not inconsistent with what has been now laid down. If A. sues B. in London, and C. is indebted to B. in the same sum, and C. is condemned, there to A. and judgment given against him ; yet, if no execution be sued against C, A. may have execution against B., his principal debtor ; and B. may sue C. for his debt, notwith- standing the unexecuted judgment. The meaning may be only that B. may sue C. for his debt where, from the usage of the court, the unexecuted judgment against C, the garnishee, cannot be enforced by execution against C. ; and this is reasonable ; and the same thing would be determined under our act. 2 Perhaps, according to the usage of the courts in England, the plaintiff or creditor in foreign attachment is not allowed to have execution at the same time against two dis- tinct persons for the same debt ; he might have against either, but not against both. Probably this was the old doctrine. In modern times the usage is different, as in the case of 1 The context seems to require the substitution of " principal debtor " for " trustee." 2 If the judgment against the trustee in foreign attachment has, from lapse of time, or other cause, ceased to be enforceable, it furnishes no de- fence to the suit of the principal defendant against the trustee. Flower v. Parker, 1823, 3 Mason, 247; Fuller v. Rice, 1855, 4 Gray, 343. (JHAFTON. Melven v. Darling. judgments and executions against the different parties to a promissory note or bill of exchange, (a) Upon this opinion being intimated, the plaintiff became non- suit, at November Term, 1803, or June Term, 1804 ; it is believed at the latter. 1 (a) After service on trustee in foreign attachment, if sued by his cred- itor, he may plead this as a temporary bar; after judgment, as a perpetual bar. In both cases the plea may be avoided by the plaintiff showing collu- sion between trustee and plaintiff in the foreign attachment; and in the latter, by showing payment of the debt, or such matter as shall render the judgment unexecutable. In 1 Wins. Saund. 67, it is said the garnishee shall be quit against the principal debtor, his creditor, after execution sued out by the plaintiff in foreign attachment. If no execution be sued out, the plaintiff may go on with his suit against the principal debtor, and the latter may proceed against his debtor, the garnishee. Semble, that in such case the proceed- ing by foreign attachment is abandoned. See 1 Com. Dig. Attachment, E. H. 425, 426. 1 By the record it appears that there was a verdict for the defendants at November Term, 1803, and judgment upon it at the same Term. Present, Wingatk, J., Livermore, J., Atkinson, J. As the cause had been taken from a jury at the previous June Term, to settle the question of law, it is probable that the verdict at November Term was directed by the Court (upon views similar to the above). The existence of an unsatisfied, but enforceable, judgment against a trustee in a process of foreign attachment will, according to the weight of American authority, prevent the principal defendant from obtaining an execution in an action subsequently prosecuted by him against the trustee to recover the same debt ; the trustee is not to be exposed to two execu- tions at the same time for one debt. But whether such judgment operates as a practical extinguishment of the trustee's indebtedness to the principal defendant, or merely furnishes ground for staying proceedings or execution against the trustee, is a question upon which there is more difference of opinion. In Maine, Indiana, Florida, and the earlier decisions in Massa- chusetts, the unsatisfied judgment is regarded as a conclusive and final bar to an action against the trustee by the principal defendant. Matthews v. Houghton, 1834, 11 Me. (2 Fairf.), 377 ; McAllister v. Brooks, 1842, 22 Me. 80; Tenney, C. J., in Merrill v. Noble, 1858, 48 Me. 140, 146 (see, how- ever, 4 Greenl. 435, 438; and 18 Me. 332, 335) ; Covert v. Nelson, 1846, 8 Blackf. (Ind.) 265; King v. Vance, 1874, 46 Ind. 246; Sessions v. Stevens, 1847, I Fla. 233; Perkins v. Parker, 1804, 1 Mass. 117; Hull v. Blake, 1816, 13 Mass. 153. In Stadler v. Parmlee, 1862, 14 Iowa, 175, 177, it is said that the legal effect of judgment against the trustee is to satisfy, to NOVEMBER TERM, 1803. 79 Melven v. Darling. the extent thereof, the indebtedness between the trustee and the principal debtor, and therefore the judgment entry in the trustee suit need not in terms express such satisfaction. In Illinois, the Court hold that the proper form of entering judgment in foreign attachment is in the name of the principal debtor as the plaintiff, and against his debtor, the trustee, as de- fendant. Towner v. George, 1870, 53 111. 168. Farmery. Simpson, 1851, 6 Tex 303, was a proceeding to enforce a vendor's lien against a vendee who had been charged in foreign attachment as the vendor's trustee. It was held, that the decree should provide that the proceeds of the land to be sold should be first applied to the payment of the judgment in foreign at- tachment. In Westmoreland v. Miller, 1852, 8 Tex. 168, it was held, that a trustee against whom judgment has been rendered is entitled, when sued by the principal defendant, to have the trusteeing creditor made a party; the Court can then allow and give effect to the judgment, or perpetually enjoin its recovery against the trustee. In Spicer v. Spicer, 1851, 23 Vt. 678, judgment was entered in the suit of the principal defendant against the trustee; but execution was stayed until the plaintiff should cause the defendant to be " released and discharged from the trustee suit," in which judgment had been rendered against the trustee. In Lowry v. Lumberman's Bank, 1841,2 Watts & S. 210, 214, and Irvine v. Lumberman's Bank, 1841, 2 Watts & S. 190, 208, 209, it was held that the trustee cannot plead the unsatisfied judgment in bar to a suit by the principal defendant ; but it was said that " it would be competent for him to protect himself by a plea in abatement." In Meriam v. Rundlett, 1833, 13 Pick. 511, 515, 516, Shaw, C. J., thought that an unsatisfied judgment in foreign attachment ought not to be pleadable in bar to an action by the principal defendant; but that the judgment might be good ground for an abatement or stay of proceedings. See also Hardin, J., in Coburn v. Currens, 1866, 1 Bush (Ky.), 242, 247; Prescott v. Hull, 1820, 17 Johns. 284. In Burnham v. Folsom, 1832, 5 N. H. 566 (overruled by Foster v. Dudley, 1855, 30 N. H. 463), there is a dictum of Richardson, C. J., to the effect that an unsatisfied judgment in foreign attachment against the trustee is not an extinguishment " of the debt of the principal against the trustee." Compare Gilchrist, C. J., in Wilson v. Hanson, 1850, 20 N. H. 375, 377, and Bell, J., in Puffer v. Graves, 1853, 26 N. II. 256, 258. In Alabama and Georgia (see also, in Maryland, Brown v. Somerville, 1855, 8 Md. 444), it is unqualifiedly held that an unsatisfied judgment in foreign attachment is no defence to a suit by the principal defendant against the trustee. Cook v. Field, 1841, 3 Ala. 53; Brannon v. Noble, 1850, 8 Ga. 549. In both States, the pendency of a foreign attachment is considered good ground for staying execution in a suit by the principal de- fendant against the trustee: Crawford v. Slade, 1846, 9 Ala. 887; Shealy v. Toole, 1876, 56 Ga. 210, 212; but it seems to be argued that, after judg- ment has been rendered in the foreign attachment, the trustee is no longer in need of protection from the Court against the principal defendant, 80 ROCKINGHAM. Lord v. Hobbes. ROCKINGHAM, SEPTEMBER TERM, 1804. Isaac Lord v. David Hobbes (Moses Leavit, Defend- ant, died pending Suit). H. gave bond with surety, conditioned to pay L. what should be awarded on sub- mission, by rule of court, of actions then pending. An award was made in favor of L., judgment was rendered on it, and II. was committed to jail on the execution. In an action on the bond against II., after the death of the surety, it was held, that the condition of the bond was not satisfied by the commitment of II., nor by the fact that, after commitment, H. gave bond to the sheriff for the liberty of the jail-yard. This was debt on bond with condition to pay what should be awarded on special submission of certain actions then pend- because he can then discharge himself from the principal defendant's suit by paying the judgment in foreign attachment. See Ormond, J., in Crawford v. Clute, 1844, 7 Ala. 157, 159. This argument is discussed and pronounced unsatisfactory in the able opinion of Kellogg, J., in Spicer v. Spicer, ubi supra, 679, 680. It is supposed that in England an unsatisfied judgment would not avail the trustee. But the English authorities on this question hardly seem ap- plicable in this State. Eoreign attachment exists there only in a few localities, in accordance with an ancient custom. It is allowable only in the case of absent defendants ; the ostensible primary purpose being to compel the appearance of the principal debtor. It is looked upon with evident disfavor by the Courts, and defences founded on it must be brought strictly within the letter of the custom. In subsequent suits by the prin- cipal against the trustee, it is said that it is not enough for the latter to show that he has paid the judgment rendered in the foreign attachment; he must show that the payment was made after execution issued. Wetter v. Rucker, 1820, 1 Brod. & B. 491; Magrath v. Hardy, 1838, 4 Bing. N. C. 7b2. In this country it has been held unnecessary for the trustee to delay payment until it has been demanded by force of an execution. Mills v. Stewart, 1847, 12 Ala. 90; Scott v. Coleman, 1824, 5 Litt. (Ky.) 349. See also Troyer v. Schweizer, 1870, 15 Minu. 241 ; Drew v. Towle, 1853, 27 N. II. 412. (In Massachusetts, the English rule has been adopted by the legislature. See Bur nap v. Campbell, 1856, 6 Gray, 211.) SEPTEMBER TERM, 1804. 81 Lord v. Hobbes. ing in court (the submission to be by rule of court) between plaintiff and the defendant Hobbes. After oyer of the bond and condition, the defendant Hobbes (Leavit, the other obligor, died since the commence- ment of the suit) pleaded, in bar, general performance. The plaintiff replied the submission and report made in favor of plaintiff for a certain sum ($489.57), and assigned, for breach, non-payment of that sum. The defendant rejoined that execution issued on judgments entered upon that report ; that Hobbes was committed, and gave bond to the sheriff for the liberty of the jail-yard, which bond was and is in the hands of plain- tiff, (a) To this rejoinder the plaintiff demurred generally. There was a second plea in bar, stating the report or award for the plaintiff on the submission, judgment on the report, the issuing of execution on the judgment, and that defendant was committed to prison on that execution. To this there was also a general demurrer. The Court were clearly of opinion that the plaintiff was entitled to recover. By the submission, under a rule of court, of an action pending, the party recovering doubtless has his remedy against the body and estate of his debtor upon the execution ; the demand passes into judgment, and satisfaction may be obtained as in other cases. The plaintiff has pursued that remedy in this case, and has either the body in execution or a bond in his possession which was made to the sheriff for the liberty of the prison-yard in lieu of the body. Having the body in execution, he is not entitled to another execution on the same judgment, that he may take the defend- ant's estate ; l nor can he maintain debt on the same judgment, because the body is deemed in law satisfaction. («) This is certainly bad. It amounts to this : "You imprisoned me for this debt; by collusiou with the sheriff I escaped and am at large " 1 The creditor may now, by statute, have a further execution against the property of his debtor, while he has the debtor's body under arrest for the same debt. Gen. Laws, c. 235, § 11. But he cannot take the property upon the same execution upon which the body has been im- prisoned. Morrison v. Morrison, 1869, 49 N. H. 69. 6 82 ROCKINGHAM. Lord v. Hobbes. But still the debt is not yet paid. The body is not valuable satisfaction. At the time this obligation was entered into, it was lawful and binding. The defendant, with a surety, stipu- lates that he will forfeit a certain sum if he do not pay what shall be awarded against him, or that he will pay that sum, whatever it may be. This bond was probably the inducement for the plaintiff to enter into the submission ; he might have attachment, or bail, which would be lost by the submission ; or he might wish to secure interest from the time of judgment till satisfaction made. If this bond was good against Leavit, the surety, it must also be good against Hobbes, the principal. The bond certainly did not become void by the report made, accepted, a judgment rendered on it, or execution issued. (It was forfeited by the non-payment on demand, i. e. by the commencement of this suit, which was before Hobbes was committed.) (a) Suppose this were the plea of Leavit (and if it would not avail Leavit, it will not avail Hobbes). The amount of it is : " I engaged to pay the award of referees. I have not paid it ; you have not received it ; but you have the body of Hobbes in execution." This is no satisfaction. Nothing will discharge Leavit but actual payment, or, perhaps, consent to release Hobbes's body, which presumes payment. 1 The rule that taking the body is a satisfaction extends only to the same person in the same suit or judgment. Esp. 196 ; 1 T. R. 557. (for the bond mentioned is not warranted by the statute, and is of no avail to plaintiff) ; " therefore my bond in which I engage to pay you the sum awarded is not forfeited : this is equivalent to payment." (a) Harris v. Clap, 1 Mass. 308, shows that judgment on a report does not vacate the bond to abide the award of referees. There the suit was on the bond ; but the case differs from this, inasmuch as no execu- tion appears to have issued, and the surety was alive and a defendant. A bond may be given for the payment of a judgment. Here the bond was given for what might be adjudged. 1 At common law the discharge of a debtor from imprisonment on execution, with the assent of the creditor, operated to discharge the judg- ment. Bunker v. Hodgdon, 1834, 7 N. H. 26;}. Aliter by statute. Gen. Laws, c. 225, § 11; Abbott v. Osyood, 1859, 38 N. II. 280. SEPTEMBER TERM, 1804. 83 Lord v. Hobbes. If the debtor die in execution, this is no defence by the representative of such debtor ; it is no payment. Where there are two debtors, and, if you please, one a mere surety, taking the principal in execution will be no discharge of the surety. Where several persons are liable for the same debt to the same person, as in the case of drawer, acceptor, indorser of bill of exchange, taking one in execution is no discharge of the others. So here, if we consider the sum to be recovered on this bond as precisely the same as that for which Hobbes's body is in execution, this is no discharge of Leavit, and con- sequently no discharge of Hobbes. But this case does not come within the rule, because this suit is not brought for the same cause. If the contents of the execution had been paid before the commencement of this suit, still, upon demand for the sum awarded, the bond was forfeited, and the plaintiff entitled at least to interest for the delay. 1 This is not a suit on the award. If it were, it would not then come within the rule as it respects Leavit, supposing the award to be joint and several against both. This suit is on a bond which was taken as a collateral or supplementary security. It does not destroy the judgment, even if nothing more could be recovered in this action than the amount of the judgment rendered on the report. And the judgment does not destroy the bond. The same person may give two securi- ties for the same debt, (a) In rendering judgment on this bond, no notice can be taken of the judgment except to prove the debt, the amount. Payment will avail, but the body being in execution is not payment as it respects Leavit, and there- fore not payment as it respects Hobbes ; and because this is (a) Hut it is a rule that a plaintiff cannot recover a double satisfaction. 2 T. R. 483. How would it be in case of bond to abide an award (not made by rule of court), and suit on the award, and debtor committed, and then suit on the bond ? Would such action lie, and would not commit- ment be satisfaction quoad plaintiff ? 1 At that time, interest on a judgment could not be collected on an execution. French v. Eaton, 1844, 15 N. H. 337. This is now changed by statute. Gen. Laws, c. 235, § 10. 84 ROCKINGHAM. Lord i>. Hobbes. not precisely the same cause of action, and is not a suit simply to enforce the same judgment, it comprehends something more. If the party attempts to enforce payment of any thing more than this judgment, an audita querela will lie. But it is sufficient for the present to say that there has been no such satisfaction as saves the forfeiture of the bond declared on. (a) Jii) 2 Wms Saund. 148 A, in margin. It is said, audita querela lies to discharge a judgment obtained by an administrator, where, alter judgment, the administration is repealed. Here the ground was that the judgment was void; and yet the entry is, that the creditor in the judgment have no execution against the debtor, or his estate, by reason of the said judgment, and that he be restored to all things which lie has lost by occasion of the said judgment. MAY TERM, 1805. 121 Bush v. Mason. that another may issue at any time after, which will he good ; (a) and equally absurd to say that the effect of the judgment in audita querela is to bar execution, but not an ac- tion on the judgment. This would be saying that the party may do that indirectly which he shall not do directly, (b) Suppose the ground of audita querela is payment after judg- ment recovered, i. e. satisfaction not by matter of record. Would it be pretended, in such a case, where execution was vacated because the judgment was satisfied and this matter found and adjudicated, as it must be in the audita querela, that debt would lie on such a judgment? Certainly not. The satisfaction by the proceedings in audita querela has be- come matter of record, as much so as the judgment itself. Here it is found, in a suit between these parties (in reference to the execution of this very judgment), that it was obtained fraudulently. In law, every such judgment is void. A writ of error would not answer the purpose. This judgment is good on the face of it. The defendant is not obliged to prove the fraud stated in his second plea, because he has once proved it in a suit against the same party, and it has passed into judgment. If this matter should now be tried, and it should be found for Bush, there would then be two contradic- tory decisions on the same question, when it was the only question in controversy between the parties. The effect of this judgment in audita querela is the same as if, in express terms, it had barred any and every execution on this judg- ment, and vacated and declared null and void the judgment itself, (c) Judgment for the defendant. 1 (a) This record shows that every execution on this judgment must be set aside, and therefore it bars every execution in the same manner as if it expressly barred them. (6) Arguendo, 1 T. 11. 273; 3 T. R. 643 ; 2 Wins. Saund. 101 k; 4 Burr. 2454. (c) A person cannot have an audita querela of a matter which he had 1 In the same direction is Miller v. Barkeloo, 1857, 18 Ark. 292. See also Dwight v. St. John, 1862, 25 N. Y. 203; Saltmarsh v. Bower, 1859, 34 Ala. 613. In Gifford v. Whalen, 1851, 8 Cush. 428, there had been no adjudication 122 STRAFFORD. Twombly v. Baker. STRAFFORD, SEPTEMBER TERM, 1805. William Twombly, Executor of Thomas Baker, v. James Baker, Executor of Otis Baker. Assumpsit lies for a legacy against an executor ; but it seems that, unless there is a promise in fact, the sufficiency of the assets, if disputed, must be ascer- tained by previous proceedings in the Probate Court. A bequest of a sum of money, to be paid in three years after the testator's de- cease, is a vested legacy ; and, if the legatee die before the expiration of the three years, the money will go to his representative. This was an action of assumpsit for a legacy of $333.34, given Iry the will of Otis Baker to Thomas Baker, payable in three years from the decease of the testator, Otis Baker. The declaration stated that the will was made, Oct. 23, 1801, and that the testator died four days afterwards ; that the will was duly proved by the executor, Dec. 12, 1801 ; that there was sufficient estate to pay all the debts and legacies ; that, an opportunity of taking advantage of before and had omitted. 12 Mod. 584. 1 G. Bacon, 310 (F. N. B. 104), the ground of the audita querela was that the statute was fraudulently obtained, i. e. forged. 1 G. Bacon, 311. Judgment against principal; upon audita querela, he was delivered from execution. It seems this judgment in audita querela, this deliverance, shall operate a discharge of the bail ; because, as the judgment against the bail depends on that against the principal, when the latter is removed out of the way, it destroys the former, i. e against the bail. 2 Ves. Jr. 135. Semble, where judgment obtained against conscience by concealment, relief by bill in equity. upon any question of fact bearing on the validity of the judgment. The supersedeas was ordered, as a matter of course, upon the filing of the peti- tion for review. The doctrine of Williams v. Roberts, 1850, 8 Hare, 315, if correct, does not go to the length of denying that the adjudication upon the audita querela was conclusive in subsequent proceedings at law, however it might be in equity. SEPTEMBER TERM, 1805. 123 Twombly r. Baker. in consideration of the premises, the executor became liable, and, being so liable, promised to pay this legacy, &c. Plea : the general issue. By consent, a verdict was found at last Term for the plain- tiff, subject to the opinion of the Court on two questions: 1. Whether this action lies ; 2. Whether the plaintiff's testa- tor, Thomas, had a vested right to this legacy by the will, he having died within three years from the decease of Otis Baker, the defendant's testator. [ Oliver Crosby, for plaintiff. Jonathan Steele, for defendant.] The opinion of the Court was now delivered by Smith, C. J. As to the first point. The executor has a right to retain articles specifically de- vised or bequeathed, and much more to refuse payment of pecuniary legacies, till the sufficiency of the estate is ascer- tained. If, in this case, the debts and charges had not been liquidated and ascertained, this action could not be maintained. But if we take it for granted that this has been done, then it is clear an action at law to recover this pecuniary legacy lies here, though it does not in England. Our probate courts cannot enforce the payment of a legacy; but the legatees, who have an interest in the estate after the debts and charges paid, can compel the executor to settle his account in the probate courts, in which he will be charged with all the estate which has come to his hands, and credited with the charges of administration, and debts paid, (a) As the executor in this case has not objected to the sufficiency of the estate, we will take it for granted that all this has been done. (A) (a) And from this account it will appear whether the estate is sufficient to pay the legacies. No action can be maintained to recover a legacy till the executor has settled such an account, except he makes himself liable by an express undertaking, which is not pretended in this case. (b) See 1 Manuscript on Descent, &c, 632-031, 673. 2 Salk. 415. In England, ejectment lies for a chattel real bequeathed after assent of executor. 3 East, 120. In this case no assent is stated. The ground of this action is the implied promise arising from the sufficiency of estate ascertained in due course of law. 124 STRAFFORD. Tvvombly v. Baker. On the second point there is as little room to doubt. This is a vested legacy. A legacy may be vested before it is pay- able ; it is then debitum in presently solvendum in futuro ; 3 Woodes. 512 ; 1 Manuscript on Descent, &c, 269, 271, &c. The words of this will are, " I give my son, Thomas Baker, 8333.34, to be paid him in three years after my decease." Here the time is not annexed to the substance of the gift as a condition pre- cedent, as it would have been if the words had been, " I give my son, Thomas Baker. $333.34 if he live three years from and after my decease," or " if he arrive at the age of twenty- one," or " if he marry," or " when he marries," &c. It does not appear to have been the intention of the testator, Otis Baker, that Thomas should only have the legacy in the event of his living three years after Otis Baker's death. He pro- vides a fund out of which the legacy shall be paid, and devises the residue of that fund. The Courts formerly, as it respects this question, adopted overstrained and nice distinctions. But this is a clear case by the English rules of construction. Our law is still more favorable to the devisee, and against lapsed legacies. It provides that in case of devisee dying before testator, his lineal descendants shall take. It would be absurd to say that, dying after, the legacy should lapse. 1 Judgment for plaintiff ; $340 damages, being the damages assessed by the jury. [Extract from the Opinion of Smith, C. J., in Patterson v. Carries, Rockingham, February Term, 1809; an Action of Debt to recover a Legacy of a Devisee of Real Estate on which the Legacy was charged.] Debt lies for this legacy, not against the executor of M. L., but against the devisee of the land charged with the pay- ment. The Province Law, 13 Anne, ed. 1771, 46, (a) gives an (a) This statute enacts, " That where any certain legacy is or shall be bequeathed or given by any person, in his or her last will and testament; 1 Upon the second point in this case, the decision is sustained by Brown v. Brown,' 1862, 44 N. II. 281; and Felton v. Sawyer, 1800, 41 N. H. 202. SEPTEMBER TERM, 1805. 125 Twombly v. Baker. action for a certain legacy, or one made certain by the execu- tor's account. The law must have been so in this State before that act was passed, and continued to be so after it was repealed. It is said by Holt, C. J., in Eiver v. Jones, 2 Ld. Raym. 937, that a devisee may maintain an action at common law, against the terre-tenant, for a legac}' devised out of land ; where a stat- ute gives a man a right, he shall have an action to recover it. 6 Mod. 26 ; 2 Salk. 415 ; Cowp. 291. This is clearly so in this State. It seems improper, in this case, to talk about defend- ant's assent. It is an executor that assents. Defendant is sued, not as executor, but as devisee. This devisee doubtless might have declined the devise on the terms offered. Here he has not declined, but accepted. I lay out of the case the evidence of Moore and Clark as unnecessary. The act of entry and occupation is sufficient evidence of assent or accept- ance to charge defendant. 4 G. Bacon, 444. It has been said that an action cannot be maintained for a legacy till it appears that the debts and prior legacies are paid, or at least that there is estate enough to pay all debts, charges, prior legacies, and the present one. If this action were against the defendant as executor, it would be true that, if express assent to the legacy be not proved, but the plaintiff relies on an implied promise, before defendant executor can be charged, it must appear that there is estate enough to satisfy all prior claims, or, which is the same thing, that there is estate to satisfy the legacy demanded. Till this is made to appear, no promise is implied by law to pay, and the legacy is not a debt due from executor. And this can only be shown by express assent or promise to pay the legacy in question, or proceedings in the Probate Court, whereby the facts just stated are made manifestly to appear. This is the best evi- dence, and I think the only admissible evidence, of the fact. But, in the present case, Carnes did not enter upon this estate as also where any residuary or uncertain legacy is, or shall by the accompt of any executor be, reduced to a certainty ; every such legacy or legacies, as aforesaid, may be sued for, and recovered at the coinmou law, any law, usage, or custom to the contrary notwithstanding." 126 STRAFFORD. Twombly v. Baker. as executor, but as devisee. His entry is an acceptance of the devise with the charges upon it, and binds him. 1 [Extract from Manuscript Treatise on Probate Law.] It is said that the legatee can, in the spiritual court, under certain circumstances, compel the executor to assent. This is inaccurate. The assent is a voluntary act of the executor. But the legatee can compel the executor to account in the spiritual court, whereby it will appear whether it is necessary for him to retain the chattel bequeathed, or not. When it appears that no such necessity exists, this is equivalent to assent ; because the legatee may thereupon sue for it. 4 G. Bacon, 444, n. ; Com. Dig. Ch. 3 g. 4 ; Adm. c. 3. The same thing may be done here in the Probate Court, as far as respects accounting. Perhaps it would be more correct to say that the executor has a right to retain chattels specifically bequeathed till he voluntarily consents to part with them, or till such proceed- ings are had in the Probate Court as clearly demonstrate that he has no right to detain them from the legatees, (a) This cannot be done in many cases till the expiration of three years, the time limited for bringing in claims against the estate ; or until the claims are liquidated by proceedings in the insolvent course of administration. 3 Woodes. 143, 144, 507 ; 4 Burn, 332 ; Com. Dig. Ch. 3 g. 3. It is very clear that no suit for a legac} 7 can be maintained till the expiration of one year from the time of proving the will or taking out letters of administration. It must, I think, be equally clear that it cannot be maintained in a court of law till the settlement of the administration account. (5) A jury (a) And these proceedings prove an implied assent, (i) Or perhaps till executor has refused on citation to settle account, in which case assets shall be deemed sufficient.* 1 As to proceedings to recover legacies charged upon land, see Piper v. Piper, 18-22, 2 N. H. 439; Pickering v. Pickering, 1833, 6 N. H. 120; Veazey v. Whitehouse, 1839, 10 N. H. 409; Pickering v. Pickering, 1844, 15 N. H. 281; Smith v. Jewell, 1860, 40 N. H. 530; Wiggin v. Wiggin, 1862, 43 N. H. 561. * See Gookin v Hoit, 1826, 3 N. H. 392. OCTOBER TERM, 1805. 127 Chapman v. Bellows. are wholly incompetent to try the amount of debts due, charges of administration, and the amount of estate for which the executor is accountable. 1 CHESHIRE, OCTOBER TERM, 1805. Chapman and Hartwell v. Thomas Bellows. A sheriff attaching goods at the suit of A., B., and C, in the order here stated, is bound to keep them safely, so that the last may have the benefit of the goods to satisfy his demand; the first and second suits not having been prosecuted. Neither the sheriff, nor the debtor, nor the creditor can appropriate them to the satisfaction of a former attachment, so as to avail against a latter, except on execution. This was an action of the case [against the sheriff of Cheshire County], for the default of Isaac Temple, one of defendant's deputies, in not safely keeping goods of W. Mills, attached on mesne process, so as to be enabled to levy plain- tiff's execution, which issued in the same suit. The first count stated, that the defendant's deputy did not retain the goods 1 In the following cases in this State, where suits at law or bills in equity have been maintained by legatees against executors, the question whether the sufficiency of the assets, if disputed, can be proved in any other manner than by the proceedings in the Probate Court, was not directly decided. In Hill v. Rockingham Bank, 1863, 44 N. H. 567, the allegations of the bill, that the estate had been duly settled, &c, were admitted by the demurrer. In Congregational Society v. Hatch, 1869, 48 N. H. 3U3, the sufficiency of the assets was impliedly admitted by the pleadings. In Brown v. Brown, 186-2,44 N. H. 281, the defendant had given bond to pay debts and legacies. In Felton v. Sawyer, 1860, 41 N. H. 202, the executor had settled his account in the Probate Court, and had made partial payments to the benehciary. In Payne v. Smith, 1841, 12 N. H. 34, there was no objection on the ground of want of assets, and there was evidence on which the jury might have found an admission of assets on the part of the executor. In some States, the remedy at law, against an executor, for a legacy, is a subject of statute regulation. 128 CHESHIRE. Chapman v. Bellows. till thirty days after judgment, but, before that time, released and discharged them from the attachment. The second count was for neglect to execute and return the execution. Plea : the general issue, with liberty to give special matter in evidence. The principal question on the trial was as to the liability of the sheriff for goods attached at the suit of a third creditor, the two former not having entered their actions. The goods attached were not of sufficient value to satisfy the prior attach- ments. These suits had been settled between the creditors and the debtor, and these goods appropriated to that use. The Court intimated an opinion that the sheriff was an- swerable to the third attaching creditor for the whole amount of goods attached at his suit ; that neither the debtor nor the sheriff could appropriate the goods to satisfy the prior attach- ments, so as to affect the right of the third attaching creditor ; that, when the former attachments were lost, the latter re- mained good. 1 1 This opinion is directly sustained by Brandon Iron Co. v. Gleason, 1852, 24 Vt. 228. The same principle was applied to a different state of facts in Cole v. Wooster, 1817, 2 Conn. 203; and in Wilder v. Weather- lead, 1860, 32 Vt. 765, was applied to foreign attachments. See also Williams, C. J., in Union Man. Co. v. Pitkin, 1811, 14 Conn. 174, 182; Van Winkle v. Udall, 1841, 1 Hill, 559; Murray v. Eldridge, 1830, 2 Vt. 388; Morse v. Knowlton, 1862, 5 Allen, 41; Wilcox, J., in Goddard v. Perkins, 1838, 9 N. H. 488, 489. Richardson, C. J., in Dodge v. Gris- wold, 1837, 8 N. H. 425, 427, 428. Nor is this principle impugned by the later New Hampshire cases, relative to the nature of the interest acquired by an attachment; viz., Stone v. Anderson, 1853, 26 N. H. 506; Kittredge v. Warren, 1844, 14 N. H. 509, 525-527; Kittredge v. Emerson, 1814, 15 N. H. 227; Moulton v. Stowell, 1844, 16 N. H. 221 ; Jackson v. Smith, 1872, 52 N. H. 9, 13. But if the first attaching creditor prosecutes his action to judgment, and takes out execution, the sheriff may not always be held liable to the last attaching creditor, on account of an irregular sale of the attached goods (not authorized by statute) during the pendency of the actions, if it was made under an agreement between the first attaching creditor and the debtor, that the proceeds should be held and applied in satisfaction of the judgments which might be recovered, and the amount so realized was not more than sufficient to satisfy the execution of the first creditor, and was thus appropriated. In Munger v. Fletcher, 1830, 2 Vt. 524, there were six attachments in succession. The first five attaching creditors, with the OCTOBER TERM, 1805. 129 ( Ihapman v. Bellows. The cause was, by consent, submitted to arbitration, the deputy sheriff alleging that he released the goods pursuant to orders received from the plaintiffs. The arbitrators awarded for defendant, and judgment was rendered accordingly. debtor's assent, agreed to a sale before judgment; the proceeds to be ap- plied to the satisfaction of all the claims in the order of attachment, so far as said proceeds would reach. After the sale, judgments were recovered by all the creditors, executions seasonably issued, and the proceeds of the sale were applied pro tanto on the execution of iireck, the first attaching creditor, which they proved insufficient to satisfy. Held, that the officer was not liable to the last attaching creditor for neglect to keep the attached property. Hutchinson, J., p. 529: " Had the avails been applied in pay- ment of Breck's debt, without its being perfected by a judgment, this would have been substituting an agreement for the attachment, and would have destroyed the lieu. The debt of Breck, and its amount, have been established just as they would have been if no agreement had been made, and the lien kept good by his execution, and delivery of the same to the officer. . . . These creditors kept their lien good upon the property." See also the explanation of Munger v. Fletcher given by Isham, J., in Brandon Iron Co. v. Gleason, 1852, 24 Vt. 228, 236. Compare Collins v. Brigham, 1840, 11 N. H. 420, 422, 423; and see Barker v. Barker, 1867, 47 N. H. 341, and Grant v. Lathrop, 1851, 23 N. H. 67. Upon a state of facts very similar to Munger v. Fletcher, it was held in Rich v. Bell, 1820, 16 Mass. 294, that the last attaching creditor might maintain an action against the sheriff, but could recover only nominal damages. That part of the decision relating to the damages is questioned in Mr. Rand's editorial note, 16 Mass. 299, n. 7. In Fairjield v. Baldwin, 1832, 12 Pick. 388, 398, Putnam, J., said, of Rich v. Bell, "In that case the first attaching creditor preserved his lien. ..." In Jordan v. Gallup, 1844, 16 Conn. 536, an irregular disposition of the attached property by the officer (whereby, as explained in 16 Conn. 574, it was exonerated from the lien of the attachments) was not consented to by any of the attaching creditors; the actions were all prosecuted to judg- ment; and the avails of the property, as far as received, were applied on the executions of the first attaching creditors. Held, that the last attach- ing creditor might maintain an action against the officer, but could recover only nominal damages. Stokrs, J., p. 518, " As the value of the property attached in this case was less than the amount for which it was holden on the writs which were served on it prior to the plaintiffs', it is obvious that the plaintiffs would have received no benefit from the attachment of the property, if it had been retained by the officer in his possession, and proceeded with strictly, according to law. They have therefore sustained no actual damage, by the negligence of which they complain." 9 130 ROCKINGHAM. Phillips v. Leavitt. ROCKINGHAM, FEBRUARY TERM, 1806. John Phillips, Administrator of Samuel Phillips, v. Benjamin Leavitt, Executor of Benjamin Leavitt. Neglect to exhibit a demand to an executor within three years from probate is a bar, though the creditor, who lived in Massachusetts, died during the three years, and his administrator exhibited the demand within three years from the grant of administration. This was an action of assumpsit, founded on a promissory note. Writ dated May 26, 1804 ; service, July 25, 1804. Plea in bar. April 20, 1801, will of Benjamin Leavitt proved; Benjamin, executor, accepted and qualified. Samuel Phillips, then in full life, and inhabitant of Andover, Mass. Administrator of the same place. Neither Samuel nor John Phillips, within three years from the probate, did exhibit the said demand to the defendant, the executor of Benjamin Leavitt, deceased (the promisor). Replication admits all the facts stated in the plea, but avoids, by showing that Samuel Phillips, plaintiff's intestate, died, Feb. 10, 1802 ; John appointed, May 10, in the same year, administrator ; demand exhibited within three years from ad- ministration granted to plaintiff. Demurrer, and joinder. The opinion of the Court was now delivered by Smith, C. J. After stating the pleadings, he said : The matter pleaded in bar is, that the creditor has neglected to exhibit this demand against the estate of Benjamin Leavitt, deceased, to the ex- ecutor, within three years next after proving the will ; the consequence of which, by the statute, is, that the debt is extinguished, and the creditor totally barred from recovering the same. N. H. Laws, ed. 1805, 175. The necessity for FEBRUARY TERM, 1806. 131 Phillips v. Leavitt. exhibiting is attempted to be avoided by showing that the creditor died within the time limited. Now the statute con- tains no saving on this account. It only allows to persons in captivity one year after the impediment is removed. It is not necessary to say whether the statute is wise or unwise ; whether good or bad. It would be too much in the Court to allow a saving where the statute has allowed none. There certainly are many good reasons why demands against the estates of deceased persons should, in a short period of time, be exhibited to the executor. I am not prepared to say that three years is too long. When the insolvent course of administration is pur- sued, demands may be barred in six months, and must be so in eighteen months from the issuing of the commission, which will generally be within three years from administration granted. Cary and wife v. Stephenson, 2 Salk. 421, has been cited and relied on by the plaintiff's counsel. The case was: A. re- ceived money belonging to the estate of an intestate, after his death. The administrator afterwards appointed sued him for it within six years from administration granted, but beyond six years from the time when the money was received. The Statute of Limitations was pleaded ; that is, that the defendant did not promise within six years ; the cause of action did not accrue' within six years. It was adjudged no bar. The cause of action first accrued on administration granted. How could defendant be said to have promised an administrator till one was appointed ? There was no cause of action in the intestate ; there could have been no promise to him. This case is more correctly stated in a note in 4 G. Bacon, 479. It is there said that the statute begins to operate only from the time a right to demand the thing in question vests in some one. Had the money been received in the lifetime of the person who died intestate, that person would have had a right of action against A. vested in him, and from that period the time of limitation would have commenced, and the statute would have been a bar ; for, when once the time of limitation has begun to run, it suffers no interruption from the death of the claimant ; nor does it revive in favor of any person upon whom the right of 132 ROCKINGHAM. Phillips v. Leavitt. claim may devolve. 1 Strange, 556 ; 1 Wilson, 134. If Samuel Phillips had been dead when the will was proved, and no representative appointed, there would be a resemblance in the cases ; but, as this case is, the case cited is an authority for the defendant. But the general limitation law and the one now under consideration are very different, and the same rules of construction do not apply to both. There is provision in England, by construction of the general law of limitation, that, in case the statute begins to run, and the creditor die, in some cases his representative may sue after the period has elapsed ; but he must do it soon, as early as he can. 4 G. Bacon, 483 ; Com. Dig. Temps (g. 17). Our statute has made this matter certain. The represent- ative shall have two years from the time of his becoming such, to prosecute, when the deceased had cause of action at his death. N. H. Laws, ed. 1805, 139. But this doctrine of the English courts and of our statute will apply only to the gen- eral limitation law, and not to demands against the estates of deceased persons ; i. e., to the commencement of actions, not to the exhibiting of claims. 1 And even if it did apply, it would not support this replication, which claims the right of exhibit- ing within three }'ears, instead of two. There is no room for construction in this case ; there is no saving in the statute, ex- cept for persons in captivity. Creditors abroad will generally have agents here. Persons deceased will generally have repre- sentatives. Insane persons will have guardians. Judgment for the defendant. 1 In Brewster v. Brewster, 1872, 52 N. H. 52, it was held, that the above- cited statute modifies the statute which limits actions against administra- tors to three years. MAY TERM, 1806. 133 Jones v. Ames. GRAFTON, MAY TERM, 1806. Timothy Jones v. Solomon Ames. After a writ has been filled out, and delivered to an officer for service, a tender of the debt without costs is pood, unless'the creditor, at the time of tender, notifies the debtor that a writ has issued. This was an action of assumpsit. There were several counts in the declaration (for several causes of action), on all of which issues were joined to the country, and found for the defendant at this Term, except the third, which was on a note of hand for $2.38, payable on demand, with interest, date, Sept. 14, 1801 ; to which there was a plea of tender, Feb. 12, 1803, at Orford, of $2.60. To this there was rep- lication, stating that, on Feb. 8, 1803, before the tender, the plaintiff had sued out a writ on the note declared on, and had delivered the same to Stephen Lumbard, a deputy sheriff, for service ; whereby defendant became liable, by law, to pay plaintiff $1.34, the cost accrued, in addition to the said sum of $2.60. To this there was a demurrer and joinder. Per Curiam. There must be judgment for defendant; it not being alleged that plaintiff, at the time of the tender of the debt, gave notice that a writ had issued. The replication does not allege that any notice was given. Defendant was not bound to pay unless notified. We cannot presume notice in this case, (a) Judgment for defendant. 1 (a) Qttcere. Was not defendant, when he tendered for the debt, bound to inquire whether any writ had issued. See Rep. Hillsborough, April Term, 1807. 8 T. R. 629.. It seems expenses incurred in retaining an attorney to 1 In support of this decision, see the views expressed in Haskell v. Brewer, 1834, 2 Fairf. (Me.) 258, 262, and in Hull v. Peters, 1819, 7 Barb. 134 GRAFTON. Jones v. Ames. commence an action, &c, need not be paid, to make a tender good; but it is conceived the writ must be paid for, if defendant has notice; and that he must have notice if no service made. (N. Y.) 331. See, however, Butler, C. J., in Studwell v. Cooke, 1871, 38 Conn. 549, 552. In some jurisdictions, the defendant need not have relied on his want of notice of the commencement of the action, but might have taken the broader ground, that the action had not been commenced at the time of tender. Ashburn v. Poulter, 1869, 35 Conn. 553; Studwell v. Cooke, 1871, 38 Conn. 549; Randall v. Bacon, 1876, 49 Vt. 20; Knight v. Beach, 1869, 7 Abb. N. Y. Pr. n. 8. 241. But the defendant was precluded on this point by the then recent decision in Brown v. Sheaf e, Rockingham, Sep- tember Term, 1803. In that case, a tender was made after the writ had been filled out and delivered to an officer for service, but before service. Held, that the action was commenced before the tender. Compare Emer- son v. White, 1858, 10 Gray, 351. It has since been held in this State that an action is to be regarded as commenced, so as to stop the running of the Statute of Limitations, when the writ is filled up with the declaration, in order to have it served on the opposite party. Society for Propagating the Gospelv. Whitcomb, 1820, 2 N. H. 227; Howards. Hunt, 1845, 17 N. H. 41!); BELLOWS, J., in Mason v. Cheney, 1866, 47 N. H. 24; Brewster v. Brewster, L872, 52 N. II. 52, 60. And an action has been held to be com- menced, so as to exclude the set-off of a subsequently acquired claim, when the writ was made out and placed in the hands of an officer for ser- vice. Hardy v. Corlis, 1850, 21 N. H. 356. Perley, J., said, p. 357, " It has been well and long understood in our practice that, as a general rule, an action is commenced when the writ is filled up with the declaration, as tlie statute provides, in order to have it served on the opposite party. This rule is established on the authority of several reported cases ; and, so far as we are aware, no decision has been made in this State, applying a different rule to any case for any purpose." NOVEMBER TERM, 180G. 135 State v. Keyes. HILLSBOROUGH, NOVEMBER TERM, 180G. State v. John Keyes. The omission of the words " this is a true bill," before the signature of the fore- man of the grand jury to an indictment, held immaterial after verdict. Indictment for assault and battery on Samuel Hall. Defendant was convicted. His counsel, Mr. Bell, moved, in arrest of judgment, that there was no evidence that the indict- ment was found by the grand jury. The bill was signed by the solicitor, D. Everett, and by the foreman of the grand jury. But the words, " this is a true bill," were omitted. The counsel [for defendant] contended that this omission was fatal, that the signature of the foreman, with the addition of " foreman," was not sufficient. The intention of the jury may have been to find it not a true bill, in which case it would have the signature as it now has. This bill in its pres- ent shape shows that the grand jury have acted upon it, but it does not appear what they have done. The solicitor contended that, according to the usage in this State, it was evident that the grand jury had found this a true bill; because the jury never indorse "ignoramus" or " this is not a true bill," as they sometimes do in England. This difference in the usage removes all pretence of uncer- tainty. All bills signed by the foreman are found true bills. But, if this were not so, it is too late to take the exception after plea pleaded. By pleading to this indictment, defendant admits it is duly found. Per Curiam. Motion denied. 1 1 S. P. State v. Freeman, 1843, 13 N. H. 488; s. c. 2 Lead. Crim. Cas. 2d ed. 250; Commonwealth v. Smyth, 1853, 11 Cush. 473. Contra, Webster's Case, 1828, 5 Greenl. 432. Nomaque v. People, 1825, Breese, 109, is sometimes cited as similar to 136 HILLSBOROUGH. Couch r. Davts. Nath. H. Couch v. Oliver Davis. Report of referees recommitted. One referee (by desire of the party against whom the report was, and at whose request it had been, recommitted) refused to hear the parties again. The other two referees reported the same as before, and additional costs. First report accepted, and costs of recommitment taxed. At the last Term there was a report of referees [in favor of the plaintiff]. This report was recommitted [at the request of i he defendant]. On the recommitment, one of the referees refused to hear the parties again. The other two notified the parties. Defendant did not attend. Those two reported, at this Term, a confirmation of former report and additional costs. Judgment was rendered at this Term on the first report, and costs of last hearing were taxed. It is understood by the Court that the referee did not sit by desire of defend- ant, who wished to destroy the rule altogether. Similar judgments have been frequently given during the last ten years, (a) * (a) The first report was not set aside. A new trial is sometimes granted without setting aside former verdict (where special case reserved). Lofft, 451. [The above note is appended to the abstract of this decision in the Manuscript Digest.] the decision in Webster's Case ; but it would seem that there was a statute in Illinois, requiring the indorsement "a true bill." See 2d edition of Breese's Rep., by Beecher, 145, n. 1. Other cases bearing on this topic are cited in a note to Slate v. Freeman, in 2 Lead. Crim. Cas. 2d ed. 252, 253. See also 1 Bish. Cr. Pro., ed. 1866, §^ L36-141; State v. Burgess, 1857, 24 Mo. 381; People v. Lawrence, 1863, 21 Cal. 368; Townsendv. State, 1828, 2 Blackf. (Ind ) 151, 153. 1 Sustained by May v. Haven, 1812, 9 Mass. 325; Peterson v. Loring, 1820, 1 Greenl. 64. If, upon recommitment, one of the referees refuse to act, and the other FEBRUARY TERM, 1807. 137 Symmes v. Libbey. ROCKINGHAM, FEBRUARY TERM, 1807. Mary Elizabeth Symmes v. Jer. Libbey, Appellee. If no order of notice appears on the minutes of the Probate Court, the Superior Court (on appeal) are not bound to presume that notice has been given. A testator devised real estate, the interest arising from his public and private securities, with all the remainder of his personal estate, to his wife, during wid- owhood, and devised to his daughter and her heirs all the residue, remainder, and reversion of his estate, real and personal, with a devise over in the event of her death without leaving issue. Held, that the daughter, during her mother's widowhood, had such a present vested interest in remainder as entitled her to notice of the settlement of the executor's account. If the judge of probate omit to give notice to a legatee previous to the allowance of an executor's account, the decree will not, for that reason, be reversed or repealed ; for it is not binding on those not notified. The remedy for the lega- tee not notified is by application to the judge of probate to revise and correct the former account. In such case, the judge of probate can review his own doings. This was an appeal from a decree of the judge of probate, founded on a petition presented to the judge ; the appellant setting forth that she was the daughter and heir at law of Hall Jackson, deceased, and a legatee in his will, of which will Libbey, the appellee, was executor ; that the executor, on Aug. 5^ 1800, presented to the judge of probate an account of his administration, which was examined and allowed the same day, whereof no notice was given to the appellant as the law required ; wherefore she prayed that the decree allowing the account might be reversed, vacated, and held void. Upon this petition, the decree was that the prayer two make a report differing from the first report, judgment cannot be ren- dered on the second report. Short v. Pratt, 1810, 6 Mass. 490 (as explained in reporter's note, 1 Greenl. 67); Cumberland v. North Yarmouth, 1827, 4 Greenl. 459. 138 ROCKINGHAM. Symmes v. Libbey. thereof be not granted. From this decree the present appeal is taken ; and it is admitted that the same is now regularly before this Court; and the question now is whether it shall l)r affirmed or reversed. The cause was argued at the last Term by Mr. Freeman, for the appellant; and by Mr. Mason, for the appellee. Every thing material in the argument was noticed in the following opinion. Smith, C. J., now delivered his opinion. The statute of Feb. 3, 1789 (ed. 1805, 165), expressly requires "that the judge of probate, before he allow the account of any executor relating to his executorship, shall cause the heirs of such estate to be notified, in such manner as he shall think most proper, of the time and place for ex- amining and allowing such account." By the word " heirs," as here used, we must doubtless understand those interested in the estate, whether devisees, legatees, or heirs properly so called. This provision of the statute seems to be no more than what the ecclesiastical law, that is, our common law, before required. It has been said by the counsel for the appellee, though not much insisted on, that, as it was the duty of the judge of probate to cause notice to be given, and he was the judge of the manner of notifying, we are bound to presume that he discharged his duty, and that due notice has been actually given. If the judge of probate ordered notice, it must appear on the minutes of the proceedings. There are no such minutes, nor any evidence of the fact. Besides, though it is the duty of the judge to cause notice to be given, yet this duty is to be performed at the instance of the executor. The judge in this case was not bound to know that there was any such person in existence as Mary Elizabeth Symmes. The executor may have represented that she was dead, or that Mrs. Jackson, the mother, was the only person concerned in interest. We may therefore take it for granted that the judge of probate, before he proceeded to allow the account of administration presented by the appellee, did not cause the FEBRUARY TERM, 1807. 139 Symmes v. Lib bey. appellant to be notified, in any manner, of the time and place for examining and allowing the account, and that in fact she had no notice, (a) One thing is very certain, that the remedy by appeal will be wholly inadequate in cases like the present. The very circumstance of examining and allowing the account with- out giving notice, and in the absence of those who ought to have been parties, which is the grievance complained of in the present application, will of itself generally preclude redress by appeal. The appeal is calculated to afford the parties redress for the errors of the judge of probate, (6) and nothing more. But it is further contended, on the part of the appellee, that the decree allowing the account ought not to be revised and annulled. 1st. Because the appellant was not entitled to notice, not being interested at the time in the estate, at least so far as it could be affected by the account allowed. 2d. If interested and entitled to notice, yet the decree is not injurious to her, inasmuch as she is not bound by it ; she may proceed against the executor in the same way as if no account had been allowed ; this decree will not protect ap- pellee against any just claim on the part of the appellant. I. As to the question of interest of the appellant in the estate. The reason why heirs are entitled to notice before allow- ance of the administration account is because their interest may be affected by it. When it cannot be affected, that is lessened, then there can be no just reason for giving notice. It is only those whose interest is affected who can complain of an injury in not being made parties. (a) It appears by the files that Mrs. Jackson, the mother of the appel- lant, the only person, except the appellant, concerned, co-executrix, and who joined in proving the will, signified her consent to the allowance of the account, Aug. 4, 1800. She died April 1, following. (6) It is true, persons who were not in fact parties before the judge may appeal ; but, unless they have notice, it is not to be presumed they will have any knowledge of the decree. 140 ROCKINGHAM. Symmes v. Libbey. Let us see what interest the appellant has by the will in the estate of her late father ; and whether the administration ac- count, as allowed, can in any way affect it. By the will (proved Oct. 18, 1797, by appellee and Mary Jackson ; the appellant was also named executrix, but did not join in the probate), there is devised to Sarah Little, testator's sister, the use and occupation of a certain part of a dwelling- house, as long as she shall remain unprovided for, absent from her husband, or a widow, and shall choose to reside in it herself. All the rest and residue of the real estate, the interest arising from the testator's public and private securities, with all the remainder of his personal estate, are devised to his wife during her widowhood ? but, in case she marry, then, in lieu of this provision, she is to take what the law gives the widow of an intestate. All the rest, residue, remainder, and reversion of the testa- tor's estate, real and personal, are devised to the appellant and her heirs ; if she die without leaving issue, then there is a devise over. What is not given to the mother is bequeathed to the daughter, as to the public and private securities. When the interest of securities is given absolutely, without any limitation, it is equivalent to a gift of the securities them- selves. But when the interest, as in this case, is given for a limited time only, it is not a bequest of the securities, but an annuitj' to the amount of the interest accruing, and the securities themselves are bequeathed to the appellant. The executors can hold the securities and pay over the interest to the mother, but the daughter has a vested interest which she might devise, and which, in case of her dying intestate, would go to her heirs or legal representatives. As to the rest of the personal estate, it is bequeathed to Mrs. Jackson while she shall remain the testator's widow. It is contended that this gives Mrs. Jackson the absolute property, and that the remainder to the daughter is too remote, and so void. It is well settled " that, when the words of a devise or bequest would give an estate tail in real estate, FEBRUARY TERM, 1807. 141 Symmes v. Libhey. when applied to personalty they give the absolute property, unless you can find in the will something to show the testator meant otherwise." 3 Ves. Jr. 101 ; 2 Fearne, 161, 169, 170, &c. ; 2 Bro. Ch. C. 575 ; 3 Atk. 283. And it was formerly held, that a personal thing given to one for life, or even for a day, was a gift for ever, and could not bear a limitation over ; but the construction now is that such devise passes only the use and profits, and not the thing itself. 1 Peere Wms. 1, 502, 651 ; 2 Atk. (82), 321 ; 3 Atk. 283; 2 Fearne, 168, 169-175, 177, 186, 194, &c. ; 2 Bro. Ch. C. 575 ; 1 Bro. Ch. C. 270, 280, 285 ; Co. Litt. 20 a (n. 5). Such devises are very common in this State, and have been always construed according to what has been just mentioned as the modern law in England on the subject. The result is, that, as to the real estate, the mother was tenant during her remaining the testator's widow, and the daughter entitled to the remainder. As to the public and private securities on interest, the mother, during the same term, was entitled to the interest arising or accruing, and the daughter was entitled to the securities and to the interest when the mother's annuity or charge on them ceased. As to the rest of the personal estate, the mother was entitled to the use and profits during her widowhood ; they were then to be the property of the daughter. Any thing, therefore, which may destroy, or unjustly occasion the sale of, the real estate or the securities, or exhaust or lessen the other personal estate, except the mere use and occupation of the mother, is an in- jury done to the daughter ; it affects her interest. It really affects her interest more than it does that of the mother, who has only the use during her widowhood ; her estate expired April 1, 1805 [1801?]. It would not be necessary to give notice to one who should have a mere contingent interest, which, at the time, had not become vested, and which might never vest. The person entitled to notice must be one who has a present, a vested, interest ; but that may be of a remainder as well as of property in possession. For example, in this case, it was not necessary to notify Mrs. Little, or the persons next 142 ROCKINGHAM. Symme8 v. J Abbey. in remainder after the appellant, because it depends on a contingency whether these persons will ever have any in- terest in the estate. But the appellant then had a vested interest. It is not necessary to decide whether it is absolutely neces- sary to notify one at the time interested in the estate, but who is not to be affected by the account as stated for allowance, and actually allowed. That is, if we suppose, in this case, that Mrs. Jackson were the absolute owner of the personal estate other than the securities, and the mother's estate more than sufficient (as it would have been) to reimburse all the advances made by the executor, and for which he claimed allowance and reimbursement, and the estate administered on were the mother's and not the daughter's (i. e. the estate credited in the administration account), it would seem not necessary to notify the daughter. She could not complain if the executor wasted the estate of her mother. Her in- terest was not affected, and her interest, as the daughter or probable heir to the mother, would not be entitled to any regard. The conclusion I draw from these premises is, that the appellant, having, at the time the account was presented for allowance, an interest in the estate, and which may be, and indeed must be, materially affected by the account allowed, was entitled to notice. It has been said that the estate might never come to the daughter ; the mother might have wasted it before her death ; the daughter could not compel the mother to give security ; (a) and we have no court of chancery to protect it against a sale by the mother. To this it may be answered, The mother had a right to occupy and use: whatever effect this might have in consum- ing or lessening the value, the daughter can have no remedy, for she has suffered no injury. But, if the mother should waste or dispose of the property, it may at least be questioned whether her bonds would not be forfeited. Her bonds oblige (a) An inventory, not security, is now usually given in such case. 2 Atk. (82). FEBRUARY TERM, 1807. 143 Symmes v. Lihbey. her to administer the estate according to the will, and her office of executrix obliges her, and Mr. Libbey also, safely to keep this property, that the objects of the testator's bounty may not be disappointed, (a) But, however this may be, owing to a defect in our jurispru- dence, if wrong maybe committed with impunity, or injustice done without possibility of redress, it is no reason why Mr. Libbey should settle his account without giving notice to those interested. If our probate courts, or other courts, have not powers enough to protect the rights of legatees, it is no reason why they should deprive legatees of the power of pro- tecting themselves. It does not appear to be conclusive rea- soning that, because our courts cannot completely guard and defend the interest of one in remainder of personal property, against the person having the life estate, or the use and prof- its only for a season, that therefore the property is absolute in the first taker. II. We now come to the second question ; namely, whether what is proposed by this petition is the proper remedy. It has been said that the remedy cannot be by repeal, because here was no want of jurisdiction and no false sugges- tions. But this is not correct ; for the judge of probate may have been led into the error of omitting to order notice, on the false suggestion of the executor, that there was no person entitled. Besides, it was the duty of the executor to have requested an order of notice, general or special, and the executor omitting to do his duty will warrant a repeal just as much as doing it amiss. In the case of administration granted, it is a good cause of revocation that those who ought to have been cited were not cited. Love. Wills, 19 ; Com. Dig. Admr. (B. 8). (6) Yet it must be confessed there are serious difficulties in annulling a decree allowing an adminis- tration account. Suppose the decree carried into execution. (a) Richards v. Baker, 2 Atk. 321, semble, 324. (6) Toll. Ex. 93; 4 Burn, 426; Manuscript, Descent, &c, 504, 1117. See 1 Mass. 200, where it would seem that probate decree of this kind reversed, because founded on report of referees where the law does not allow of reference. 144 ROCKINGHAM. Symmes v. Libbey. To annul the decree without any further proceedings will be of no avail. The only remedy, in such case, is compelling the administrator to settle a new account, in which he must be charged with what was unjustly allowed in the old. This end will be just as well attained by declaring that the account allowed without due notice given is no protection to the administrator ; and that those interested, and who were not notified, may call upon him in the Probate Court to rectify its errors, and submit to revision, and to account for what may be found wrong on review. To annul the whole decree would also in many cases be doing more than what is necessary or just. Suppose ten per- sons interested in the administration account ; nine notified, and one omitted. The decree may be right as it respects the nine ; at any rate, they have been fully heard, or might have been so. To reverse the decree as to the tenth person, only, who was not notified, would be saying that a new account may be settled as it respects him. Would it not come to the same thing to say that the decree was binding on the persons notified, and, as to the one omitted, that he might compel the executor to account with him for what was unjustly allowed ? Why should the executor be compelled to produce vouchers a second time against those who had an opportunity of examin- ing them before? In the Probate Court, each defends pro interesse mo ; one is not obliged to join with others, is not affected by their doings or omissions, (a) The doctrine that a decree must be reversed if one heir not notified leads also to this inconvenience, if not absurdity, that oftentimes a just decree will be reversed ; for the question is only, Was due notice given ? Whereas, by holding that the account may be opened and revised, the decree will be reversed if altogether wrong, rectified if partly so, and suffered to remain as it is if just. For these, and many other reasons that might be mentioned, all parties would be gainers by allowing the decree to be conclusive on the parties, and reviewable by those who were not notified. («) Decrees are iu their nature several; they bind the parties only. FEBRUARY TERM, 1807. 145 Symmes v. Libbey. It is conceived that such are the authorities # and the usage in the ecclesiastical courts in England. Swinburne on Wills, p. 468, treating of the manner of mak- ing an account, says " that the creditors, legatories, and all others having interest, are to be cited to be present at the making of the account ; otherwise the account made in their absence (and they never called) is not prejudicial unto them." In the same manner it is laid down in Burn (4 Burn, 426), a respectable authority. No case, it is apprehended, can be found, of a decree of this kind reversed for want of notice to those interested. They must have redress. It is against every principle of natural justice that they should be bound by decrees to which they were no parties, and could not become such. The redress has been by allowing them to contest it when attempted to be put in execution ; to have it revised and rectified if wrong ; and, if completely executed, to compel the accountant to refund or account anew for what he has unjustly received. It is not necessary that the Court should pronounce judg- ment at this Term. The appellant may proceed in the Pro- bate Court, to obtain a revision of the account heretofore allowed. If this should be resisted by the executor, it will bring into view the question now agitated, whether such a decree is conclusive on the appellant. I am of opinion that it is not, but we shall then have an opportunity of viewing the matter in all its bearings; we shall be able to see a little of the practical application of the principal, a thing always to be desired in establishing rules. Livermore, J., agreed in the result as stated by the Chief Justice. Wingate, J., absent. Judgment was not pronounced at this Term, (a) (a) Remedy must be : (1) by reversing former decree, and so leaving parties as before any account settled ; (2) by considering the decree as binding on those notified; and, without reversal, as reviewable by those not notified by new proceedings in the Probate Court; (3) by affirming or reversing the decree in part, i. e. by making it, on this application, such as it should have been. 10 146 ROCKINGHAM. Sy mines v. Libbey. The judgment may be, that the decree of the judge of pro- bate dismissing this petition be affirmed (it would seem to be improper to affirm the decree complained of). The reasons may be given ; the proper remedy being by application to the judge of probate to revise and correct the former account, to which this decree is no bar. 1 1 I. The decision that notice would not be presumed is sustained by Hathaway v. Clark, 1827, 5 Pick. 490. Compare Hubbard, J., in Marcy v. Murcy, 1843, 6 Met. (Mass.) 360, 368, 369, with Thomas, J., in Jenks v. II oirland, 1855, 3 Gray, 536, 538. Where there is no statute requiring notice to parties in interest to be present at the hearing, the record of the Probate Court need not contain any thing relative to notice or appearance; and facts as to this may be proved by parol in abatement of an appeal. Hiscox's Appeal, 1801, 29 Conn. 561. II. As to the daughter's vested remainder, see Burleigh v. Clough, 1872, 52 N. H. 267. III. It is now held that an appeal maybe taken from a void decree. Such appeals, " though not in strictness necessary," " may be very appro- priate ; " as the reversal or aunulment of the decree will "place upon the record the real truth of the case, and save the proceedings from all appearance of inconsistency." See Church, J., in Sturges v. Peck, 1837, 12 Conn. 139, 141, 142; Metcalf, J., iu Pettee v. Wilmarth, 1862, 5 Allen, 144; Bell, C. J., in Morgan v. Dodge, 1802, 44 N. H. 255, 259. IV. A decree of partition by the Probate Court is void as against an attaching creditor of an heir, who is not notified. Procter v. Newhall, 1820, 17 Mass. 81,91, 92 (and see Munroe v. Luke, 1837, 19 Pick. 39). A decree assigning the whole estate to one heir, she paying the others respectively a certain sum, is void as against an heir absent from the State, for whom no agent was appointed: Smith v. Rice, 1814, 11 Mass. 507 ; but is good as against another heir who assented to the assignment, and received the sum awarded to her: Rice v. Smith, 1817, 14 Mass. 431. An administration account was settled in the Probate Court in 1827, but there was no legal notice given, as there was no guardian over the heirs, who were then minors. In 1851, the Probate Court adjudged that the decree of 1827 was not conclusive, on account of the want of notice, and laid that settlement entirely aside, and re-examined the accounts of the administrator from the beginning, and decreed a balance against him. On appeal from this decree, it was held, that, as no cause was shown for the delay, it was too late to open the account, and the decree was reversed. Child's Appeal, 1851, 23 N. II. 225. FEBRUARY TERM, 1807. 147 Robinson v. Clarke. Bradbury Robinson v. Daniel Clarke. An action for money had and received does not lie to recover back money paid under a judgment for costs which ought not to have been taxed, and which were allowed in consequence of a false certificate of the creditor. This was an action for money had and received, $50. The plaintiff claimed to recover two sums, one of $3.78, and one of $30. That part of the manuscript report which relates to the claim of $3.78 is here omitted. As to the claim of $30, the facts were, that in the taxa- tion of costs, in a suit wherein Clarke had judgment against Robinson, Clarke certified that six witnesses travelled and attended who never did ; and their fees, $30 in the whole, were taxed. It is assumed, in the opinion of the Court, that Robinson paid the judgment which included this sum ; and the same is to be inferred from the manuscript statement of facts. The questions submitted to the Court were, whether the plaintiff was entitled to recover these sums, or either of them. 1 The opinion of the Court was now delivered by Smith, C. J. As to the latter sum, $30, it ought not to have been included in the bill of costs taxed against the present plaintiff. But it makes a part of the judgment ; and this action will not lie to recover back money paid under a judgment of a court of competent jurisdiction, as long as the judgment remains in force, (a) There is no ground of distinction between the damages and costs. Errors in the one stand on the same footing in this respect [as errors in the other]. They are both awarded by the Court. (a) See Henry v. Arms, [reported ante']. 1 Statement of facts by compiler. 148 ROCKINGHAM. Kobiiison v. Clarke. It is contended by the plaintiff's counsel, that this item was inserted in the bill of costs by the fraudulent act of Clarke, and that the plaintiff may waive the fraud and sue for the money actually obtained thereby, (a) It is true that there are many cases where a party defrauded may maintain this action to recover back the money unjustly taken from him. But the law will not presume, nor will it admit, in this form of action, of an allegation, that a judgment is founded on fraud, that a sum of money awarded for costs ought not to have been awarded. As long as this judgment remains in force, we are bound to presume that the legal costs, and those only, were awarded. Money paid under a judgment fraudulently obtained cannot be recovered back in this form of action. It has been also said that defendant cannot in conscience retain this money to which he had no just claim, and which indeed he obtained by means of his own fraudulent act. The answer is, that, in a court of law, we cannot receive evidence of this kind in this form of action. It would be trying, in an action for money had and received, the merits of a judgment obtained in another suit. (6) Plaintiff had judgment Jor $3.78 only. 1 (a) Cowp. 372, 414, 416, 419. Note. What mode of redress can be pursued? Error will lie for refusal of costs where entitled. Colman's Cases (N. Y.), 117. (b) Grafton Superior Court, October, 1807. Porter v. Lewis. Money had and received to recover back $8 taxed, $4 for a grand juror and St for a petit juror, as witnesses for Lewis in an action formerly tried between the present parties, in which Lewis recovered costs, on the ground that these witnesses should not have been taxed. Pek Curiam. On the authority of Robinson v. Clarke this action can- not be maintained. Plaintiff nonsuit. 1 See Lyford v. Demeritt, 32 N. H. 234; Curtis v. Fairbanks, 16 N. H. 542; Hilltborouyh v. Nichols, 46 N. H. 379. As to when a judgment for costs may be impeached, on the ground of fraud, by sureties in a bond, given during the pendency of the action, con- ditioned for the payment of such costs as should be recovered, see Great Falls Man, Co. v. Worster, 1863, 45 N. H. 110. FEBRUARY TERM, 1807. 149 State v. Page. STRAFFORD, FEBRUARY TERM, 1807. State v. Samuel Page. Indictment for forgery. Defendant held genuine negotiable notes against A. He forged others like them, and, on payment, gave up the forged ones, and retained the genuine. Hi-Id, forgery. Indictment, charging defendant with forging and counter- feiting two notes, Ebenezer Kelley to Samuel Page or order ; $1,539.25, payable on demand, with interest, date Aug. 25, 1804 ; and $260, payable on demand, with interest, date Nov. 21, 1803 ; and uttering the same notes. Plea : not guilty. The facts were : that Kelley had given genuine notes of the tenor of those described ; had paid them ; defendant forged notes every way resembling the genuine, and gave them up to Kelley as the genuine, to be cancelled, retaining the true notes in his possession. The indictment was for forging the notes he gave up to be cancelled on payment. Defendant convicted and sentenced. N. B. Defendant immediately broke jail and escaped. 150 HILLSBOROUGH. Cilley v. Cayford. HILLSBOROUGH, APRIL TERM, 1807. Aaron Cilley v. John Cayford. Id the grant of the township of Weare, it was provided that one share of land should " be for and toward the support of the gospel ministry there for ever." Held, that this share belonged to the town ; that a minister settled over a church and incorporated religious society in Weare could not hold it against the town ; and that the town could sell the land and divide the proceeds equally among the different Christian denominations therein. A town voted to divide the ministerial lands among the religious societies having a right or claim to the same. A committee were chosen to make division, and they reported a division. The town voted not to accept the report. Held, no division or grant. This was ejectment, to recover lot No. 16, second range from north side of Weare, containing one hundred acres, more or less, thus bounded, &c. The declaration stated that the inhabitants of Weare were seised, Oct. 1, 1804, and by deed conveyed, leased, and demised to plaintiff, for the term of 999 years, since which defendant has dispossessed and ejected plaintiff. Plea : not guilty. On the trial, at April Term, 1806, the title of each party was introduced. As the questions raised were matters of law, it was agreed to turn it into a case stated ; which, at October Term last, was done, and was in substance [as follows] : — Plaintiff's Title. Oct. 1, 1804, lease from Whittle, Atwood, and Philbvick, committee of Weare, duly authorized to sell the parsonage lands, viz., lot No. 16, &c, to plaintiff; consideration $2,408; premises described in the writ ; to hold 999 years. March 13, 1804, vote of Weare to sell the ministerial lands, and that each denomination of Christians therein shall have an equal proportion of the proceeds of said sale. APRIL TERM, 1807. 151 Cilley v. Cay ford. Plaintiff entered by virtue of the deed of Oct. 1, 1804, and was ejected by defendant. Weare was granted by the Masonian proprietors, Sept. 20, 1749, to eighty persons, in one hundred shares, — "one share for the first minister of the gospel that shall be settled on said land, and continue there during his life, or until he shall be regularly dismissed ; " " one other of said shares to be for and toward the support of the gospel ministry there for ever." The demanded premises are part of this [last-named] share. In 1779, the town of Weare chose a committee to take care of and lease out the ministerial land, who leased the demanded premises. Mr. Wood, minister of Weare, afterwards entered on the premises, and, in virtue of his ministerial office, received the rents and profits till his death, which happened on The town afterwards continued to lease the premises annu- ally, till the defendant entered in 1803. Defendant's Title. Defendant, Oct. 20, 1802, at the request of a church and a number of individual inhabitants of Weare (no vote of the town for the purpose), was regularly ordained to the work of the ministry over and among said church and individuals. June 15, 1805, said individuals were incorporated into a distinct Congregational religious society in Weare (poll parish). In 1803, defendant, in his ministerial character, entered into the premises, claiming the same in his said character, and has held the possession ever since. April 25, 1803, vote of Weare "to divide the ministerial land among the religious societies having a right or claim to the same." A committee was appointed to choose a committee to make division. Robert Alcock, Josh. Morse, and B. Peirce, were chosen for the purpose. May 25, 1803, these persons reported a division; they found two religious societies entitled ; allotted the premises to the religious society on the north side (Mr. Cayford's). 152 HILLSBOROUGH. Cilley v. Cayford. March 13, 1804, vote of Weare not to accept of the report of the committee chosen by the town to make division of the ministerial lands, (a) The opinion of the Court was now delivered by Smith, C. J. After stating the case, he observed that the question was, whether the plaintiff was entitled to recover. To support plaintiff's title, Weare must be the owner at the time they undertook to make the lease declared on. If it did not belong to Weare, who was the owner ? The State ? The Mason ian proprietors ? The State never has claimed any lands similarly circum- stanced. The Masonian proprietors have never set up any claim, even where the lands so granted have been misapplied ; sold, the money appropriated to other purposes. To sell in the manner Weare has done is not a misapplication of this right. A grant in this form has always been considered as a grant to Weare. The school lot is the property of the town. A right reserved for the use of a school and for the use of the ministry in Weare is a grant to the inhabitants of Weare for these objects. The appropriation belongs to the town. A grant to the first settled minister is different. To support defendant's title, he must either claim under Weare, or independent of Weare, at least of any act or vote of the town. I. His claim under Weare. Has the town voted this lot to Cayford ? If they have, it must be by votes of April 25, 1803, and the doings under it. 1. These votes do not purport a conveyance, but to divide : if he had any right, it will be considered hereafter. 2. This is not a partition. The most that can be said is, that it is an agreement to divide. 3. Submission to arbitrators to divide is not partition. The most that can be said is, that it makes them liable for breach of the award. (a) There may be some trifling variation between the case in evidence and the case stated. This account is substantially correct. APRIL TERM, lb07. L53 Cilley v. Cayford. 4. But this vote is neither division nor submission to others to divide for them, but an appointment of a committee to make division afterwards, to be acted on by the town, and either ac- cepted or disallowed at their pleasure ; and afterwards actually disallowed. This is evident, because neither Cayford, his society, nor any other persuasion, is bound. Of consequence, the town was not bound. The terms made use of in the vote and report show that this was the understanding of all parties who acted. The words " committee," " report," " submitted," &c, imply that nothing binding was intended. II. Defendant's claim, independent of the doings of Weare, will be found to have as little foundation. The defendant must contend that a right granted or re- served for and toward the support of the gospel ministry in a town shall inure to whoever shall be a gospel minister in the town, though not connected with the town. A church is formed in Weare (a church is a company of people voluntarily combined together by covenant for the worship of God : Plat- form, c. 6, et ante, 202), consisting of three persons; ten more join together as a society ; these settle a minister ; he then becomes entitled to all the lands in Weare granted for and toward the support of the gospel ministry there, i. e. in Weare. For what length of time ? Are all the rest of the town cut off from any right? Shall all the rest have one half? Suppose thirteen other persons afterwards settle another minister ; shall they divide with the first thirteen ? Shall a third set call for a new division ? All this is absurd, and therefore it cannot be the true meaning of the grant. For the support of the minis- try in or of Weare means such ministry as the town, as a corporate body, employ. The Congregational Society, incorporated in 1795, are no parties to this suit. If they were, they have no lot or part in these lands, any more than any other religious society in the State. It does not appear, besides, how defendant is connected with that society. This case does not raise the question, what shall be done on division of a town like Weare by limits ; whether the lands 154 HILLSBOROUGH. C'illey v. Cayford. shall be divided equally, or in what proportions ; whether the legislature have a right to declare this effect of division, and whether the new corporation can take, if they do not. As a gospel minister living in Weare, settled over and among a church and individuals there, defendant has no right to the lands granted for the support of the gospel ministry of Weare ; and these individuals being afterwards incorporated into a religious society makes no difference. If any minister can claim title to these lands (which is not admitted), it must be a minister settled by Weare. But it is conceived that no minister can, except there be an appropriation by the town. He must hold under the town. The parties entered judgment, by agreement, for plaintiff. 1 Judge Wingate dissented from this decision. 1 Lands or shares set apart in the original charter, or grant, of a town, for the use of the ministry, vest absolutely in the town, and are not held in trust for pious uses. This is so decided upon the ground of ancient usage and understanding. Baptist Society in Wilton v. Town of Wilton, 1822, 2 N. H. 508; Richardson, C. J., in Bristol v. New Chester, 1826, 3 N. H. 524, 531; Rice v. Wadsworth, 1853, 27 N. H. 104; and see Doe, J., in Hale v. Everett, 1868, 53 N. H. 9, 147-149. The " Toleration Act" of 1819 did not deprive towns of the power to appropriate such lands for the benefit of religious societies within their limits. Candia v. French, 1835, 8 N. H. 133. But the towns, being held to be absolute owners, are under no legal obligation to do so. They may appropriate the proceeds of such lands for the purchase of a poor farm. Rice v. Wadsworth, 1853, 27 N. H. 104. For the effect of a division of the town upon the ownership of such lands, see Union Baptist Society v. Town of Candia, 1819, 2 N. H. 20. See, generally, as to the effect of a division of a town, upon the ownership of town property, Bristol v. New Chester, ubi sup; Troy v. Haskell, 1856, 33 N. H. 533; Greenville v. Mason, 1873, 53 N. H. 515; Tiltonv. San- bornton, 55 N. II. 610, n. For the construction of grants (other than those contained in the origi- nal charter, or grant, of a township) to municipalities for religious, edu- cational, patriotic, or other public purposes, see Newmarket v. Smart, 1863, 45 N. H. 87; Brown v. Concord, 1856, 33 N. H. 285; Troy v. Haskell, 1856, 33 N. H. 533; Chopin v. School District, 1857, 35 N. H. 445; The Dublin Case, 1859, 38 N. H. 459; s c. 41 N. H. 91; Sargent v. Cornish, 1873, 54 N. H. 18; Orford Union Congregational Society v. West Congre- gational Society of Orford, 1875, 55 N. H. 463; Congregational Society APRIL TERM, 1807. 155 Kidder v. French. Joseph Kidder v. Theo. French, Z. Lovewell, and Jer. Hunt. The estate of an ordained minister of the gospel, not settled over a corporate society, is not exempt from taxation. This was an action of trespass for an illegal assessment of $8.51 on the real and personal estate of the plaintiff in Dun- stable, in the year 1804. The plaintiff admits that the defendants were the assessors, and that the assessment was legal if his estate was not by law exempt from taxation. And, as to this, the parties agreed on a case, in substance as follows: — That the plaintiff was ordained, March 18, 1767, a minister of the gospel over the church and town of Dunstable, and continued regularly to officiate in that office till June 15, 1796, when, by a mutual council, the special pastoral relation- ship between the plaintiff and the church and town of Dun- stable was dissolved, (a) The council recommended to the church of Dunstable that Mr. Kidder, agreeably to their request, should continue to administer the ordinances of bap- tism and the Lord's Supper ; which he has ever since done. The council also recommended Mr. Kidder to all Christian people who might think proper to employ him, and, in their result, stated that they did not consider Mr. Kidder as divested (a) The written statement, as drawn up by the counsel, contains many things which do not concern the merits, but does not state in positive terms this material fact. Sf Church in Newington v. Newington, 1873, 53 N. H. 595; Greenville v. Mason, 1873, 53 N. H. 515; Foster v. Lane, 1855, 30 N. H. 305; Wiggin v. Berry, 1850, 22 N. H. 114; Second v. First Congregational Society in Hopkinton, 1843, 14 N. H. 315. That the action of the committee was not binding until accepted by the town, see Monadnock R. R. v. Peterborough, 1870, 49 N. H. 281. 156 HILLSBOROUGH. Kidder v. French. of his ministerial character by the dissolution of his special relation to the church and town of Dunstable ; and Mr. Kid- der has ever since been received and treated as an ordained minister by the members of the council and other ministers and regular Congregational churches, and received to admin- ister the special ordinances of the gospel. The real estate taxed was acquired and possessed by Mr. Kidder before the dissolution of his connection with the church and town of Dunstable. If the Court should be of opinion that the assessment was legal, the plaintiff to become nonsuit ; otherwise the defend- ants to be defaulted. The opinion of the Court was now delivered by Smith, C. J. The question we are now called to decide is, whether, on the facts stated, Mr. Kidder's estate was exempt from taxation. The act of Feb. 8, 1791 (ed. 1805, 214), makes it the duty of the selectmen " to assess the polls and estate within the town, according to the rules and directions of the law, their just and equal proportion of all sums of money authorized and required to be raised." This is equivalent to saying that all the polls and all the ratable estate shall be taxed. The omis- sion to tax what is taxable is as illegal as the assessing of what is exempt from taxation. The act of Dec. 19, 1803 (ed, 1805, 218), establishing the rates at which polls and ratable estates shall be valued, ex- empts the polls of ordained ministers, and certain others. Under this clause, I suppose, it was that Mr. Kidder's poll was not taxed in the assessment complained of. There is no exception as to ratable estate in respect of the owner. All real estate situate in the town, and all personal estate of the description mentioned in the act, let who may be the owner, is subject to taxation. If Mr. Kidder's estate is exempt, it must be so because, by the usage of the State from the earliest times of which we have any knowledge, i. e. by the common law of the State, the estates of persons of his character and description have been exempt ; and so the expressions in the statute — that all the estate within the town is to be taxed — APRIL TERM, 1807. 157 Kidder v. French. must be understood to mean only all liable, all not exempt from taxation. It is certainly going a great way in construing this law, to admit of any exceptions when the statute contains none, and especially to exempt the estate of settled ordained ministers of the gospel, when the statute has expressly exempted the poll, (a) It has been decided in this State, in the case of Kelley v. Bean and others, Selectmen of Warner, Hillsborough, May Term, 1798, "that a minister of the church and congregation in a town " is not liable to be taxed. (6) We are not favored (a) But we are not to suppose, from the express exemption of the poll, that ministers' polls were taxed before. They certainly were not. In this act, the polls of paupers were exempted. Is it supposable that they ever were taxed? It was thought necessary to mention ministers' polls, be- cause, as certain polls were expressly exempted, an argument might have been drawn, from an omission of ministers, that it was the intention to tax their polls, though their estates had always been exempted. It is certainly not true that all lands in the town were ever taxed, or now are. Lands owned by the town are not taxed, and yet are not exempted by any statute ; the parsonage, school-lot, &c, are of this description. All build- ings are to be taxed; but was it ever heard of to tax a meeting-house, school-house? Were the public buildings in Exeter, Concord, Hanover, &c, ever taxed? There are, and always have been, exemptions, where the statute has not expressly made any. They depend on invariable usage, growing out of the reason and nature of the thing. They are more ancient than our statutes (1770), and are not repealed except by express clauses for the purpose, or by provisions necessarily and manifestly re- pugnant.* (b) It does not appear whether the tax complained of in this case was for the poll, estate, or both. Exception of the poll seems first to have * " Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in adopting them. A State may, if the legislature see fit, tax all the property owned by its municipal divisions ; but to do so would render necessary new taxes to meet the de- mand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one would be benefited but the officers employed. It is always to be assumed that the general language of statutes is made use of with reference to tax- able subjects, and the property of municipalities is not in any proper sense taxable. It is, therefore, by clear implication, excluded. It is not, like government agencies, excluded from the power of tax laws, but it is beyond the grasp of their intent." Cooley on Taxation, 130, 131. See Gen. Laws, c. 53, § 2. Brewster v. Hough, 1839, 10 N. H. 138; Warden v. Manchester, 1876, 56 N. H. 508. 158 HILLSBOROUGH. Kidder v. French. with the grounds or reasons of that decision. And, if we were, it does not come up to the present case. If ministers of the gospel of any description are exempt from taxation, it still remains to be determined what is the particular character and description of persons entitled to exemption, what is the ex- tent of the privilege. Minister, or minister of the gospel, is a comprehensive term, and of uncertain signification. In examining the statute book we find various modes of expression used respecting ministers. been introduced in the act of Dec. 26, 1798, ed. 1797, 519, ed. 1815, 548. This act omits president, professors, and tutors of college. The acts of Feb. 8, 1791, ed. 1805, 217, Feb. 22, 1794, ed. 1797, 202, 203, contain no exceptions. Acts establishing method of making taxes, rates of polls and estate in the valuation, &c. : — 1. An act to establish an equitable method of making rates and taxes &c. Passed April 12, 1770. Acts, June Session, 1815, appendix 9. Preamble : No rule established by law to compel persons to pay in pro- portion to their income. The matter has been left to the arbitrary deter- mination of selectmen, &c. In future, all taxes to be made and assessed in proportion to the amount of each person's polls, ratable estate, &c. All male polls, &c. (This act implies that ministerial taxes are to be made by same in- voice.) 2. Act passed Jan. 30, 1773 (not Jan. 2, 1772), 11. 3. Act July 2, 1776, ed. 1815, appendix, 511. 4. Act June 12, 1784, ed. 1815, appendix, 525. 5. Act Feb. 7, 1789, ed. 1815, appendix, 533. 6. Act Feb. 8, 1791, 257. Selectmen to assess the polls and estates within the town, according to the rules and directions of the law, their just and equal proportion of all sums voted to be raised at any legal meet- ing of the inhabitants, &c. Sect. 9 establishes the rates, &c. 7. Act Feb. 22, 1794, ed. 1815, appendix, 544. 8. Act Dec. 26, 1798, ed. 1815, appendix, 548. Taxes to be assessed on the polls and ratable estates in the mauner following, viz. : Each poll from 18 to 70 (excepting those from 18 to 21 enrolled in the militia, or- dained ministers, students of colleges, paupers, and idiots) to be valued, &c. 9. Act Dec. 24, 1803, 550. Same exception, with addition of president, professors, and tutors of colleges. 10. Act of Dec. 16, 1812, 263. Same exception as last. All, with sundry additional acts, repealed, except act of Dec. 16, 1812. APRIL TERM, 1807. 159 Kidder v. French. In the Constitution, Art. VI., they are spoken of as public teachers of piety, religion, and morality. 1 In the statutes they are sometimes called ministers of the gospel ; under that name they are excused from militia duty (ed. 1805, 252), en- joined to read the Sabbath act (p. 294), authorized to certify the qualifications of schoolmasters (p. 296). Sometimes they are called ordained ministers of the gospel, a term less comprehensive in its signification ; such, in the county where settled or permanently residing, are authorized to solemnize marriages (ed. 1805, 296). 2 In the Province Law (p. 51), settled ministers of the gospel are authorized to join persons in marriage. In the Province Law for mainten- ance of the ministry (p. 55), something like a definition of a settled minister is given. He is one settled, i. e. chosen, by the freeholders of the town, convened in public town meeting, as a minister for the supply of the town at a certain annual salary. He is called the settled minister of the town. The language used by writers is to the same effect. There seem to be three descriptions of persons in the minis- try. 1st. Those who officiate in public teaching, &c, who are neither ordained nor settled. 2d. Those who are or have been ordained, but not connected with any particular church or society. Wise, 207. And 3d. Those who are ordained and settled in a particular town or parish, connected with a par- ticular church and congregation. Those who are at all acquainted with the temper, views, and habits of the first settlers of New England will not be surprised to learn that the clergy obtained, in early times, ex- emption from the burden of taxes. It was a doctrine much inculcated at that day, and forms 1 A person regularly engaged and officiating as a reader in an Episcopal society, without ordination, is "a public teacher of piety, religion, and morality," within the meaning of the Massachusetts Constitution. Sanger v. Inliabitants of Third Parish in Roxbury, 1811, 8 Mass. 265. 2 For the construction of this statute, and an elaborate discussion of the meaning of the term " ordained minister," see Londonderry v . Chester, 1820, 2 N. H. 268. See also State v. Kean, 1839, 10 N. H. 347; State v. Winkley, 1843, 14 N. H. 480. 160 HILLSBOROUGH. Kidder v. French. ;m article in the Platform of Discipline, (a) " that necessary and sufficient maintenance is due unto the ministers of the word, from the law of nature and nations, from the law of .Muses, the rule of common reason, and, still more, from the law of revelation, which declares that the laborer is worthy of his hire, and requires that he who is taught in the word should communicate to his teacher in all good things, and that they which preach the gospel should live by the gospel." If the reasons for encouraging and supporting the clergy had been less weighty, and the authorities less decisive, still this privilege would in all probability have been granted. We know that the clergy of that day had great influence in all civil affairs. Nothing of importance was undertaken without their advice. They assisted in framing particular laws, and especially in digesting a civil code for the government and regulation of the colony. 1 Hutchinson, 251 ; 1 Holmes, American Annals, 366 ; Winthrop's Journal, 197, 302. The legislative and the judicial departments resorted to the clergy for advice in all weighty and difficult affairs. Winthrop's Journal, 236. Indeed, in those days, the civil and ecclesiasti- cal state were so blended that the one could not exist without the other. Town corporations were composed, and must be composed, wholly of church members. A vote of the town and a vote of the church was the same thing. The minister was at the head of the church, and consequently of the town. All political power was lodged in, and in the first instance exercised by, these small bodies. It is not extravagant, there- fore, to say that the ministers could make and unmake magis- trates at their pleasure. The ministers spoken of were those connected with particular churches and towns. (6.) It was (a) Cambridge Platform, Wise, 211. (6) The Platform (Wise, 208) considers officers as existing only in connection with a particular church. He that is clearly loosed from his office relation to the church whereof he was a minister cannot be looked upon as an officer, unless again orderly called unto office, and he may be again ordained. (" Mr. N. W. had cast off his pastor's place at I., and was now no minister, by the received determination of our churches." Gov. Winthrop, vol. ii. Savage's edition, 35.) It would seem, however, in early times, to have been allowable to ordain a minister to the church universal APRIL TERM, 1807. 161 Kidder v. French. necessary that those men who were devoted to the best inter- ests of society should have a decent and honorable support. They richly deserved it. At that day the people were not reluctant in bestowing it. The influence of the clergy could command it. For some time it was unnecessary to raise taxes for this object. 1 Hutchinson, 376, &c. ; Winthrop's Journal, 176, 190. Some scrupulous persons, clergymen and others, entertained doubts about the lawfulness of maintenance by a salary. Taxes were considered as but another name for tithes, and they had not yet lost their aversion to tithes. Mass. Hist. Coll. I. 178 (reprinted 1806) ; Winthrop's Journal, 42, 54, 58, 60, 217, 269; Hutchinson, Coll. Papers, 291, &c. At this time, when the clergy were supported by voluntary contribu- tions from the people of their charge, it would have been absurd to tax the minister. This would have been taking from him by compulsion what was freely given. And when these scruples wore off (they were not calculated to be of long duration), and the law made provision for the support of the clergy, — making it the duty of the town to raise money, and empowering the magistrates, in case of neglect of towns, (a) to levy money by tax for the honorable support of the teacher, — it would have been absurd to tax the minister himself. This would have been taking from him with one hand what was bestowed with the other. And though taxing the minis- ter of the town to other taxes — province and county, for exam- ple — i s not quite so absurd as assessing him to the minister's tax, yet, in the end, it comes nearly to the same thing. The at the same time he was ordained over a particular church and society. This seems to have been the idea of the council who dissolved the relation between Mr. Kidder and the church and town of Dunstable. They con- sidered him as still retaining the character and office of an ordained min- ister, yet it is usual at this day to resettle a minister by installation, which is a sort of second ordination. It is believed that there were in early times, in New England, few, if any, ordained ministers unconnected with particular churches and towns. (a) Every county court had the power to make sufficient provision for the maintenance of the ministry, and to rectify any defect, on complaint of any such, for want of means whereby comfortable to subsist. 1 Holmes, American Annals, 354. 11 1G2 HILLSBOROUGH. Kidder v. French. towns were bound to give their ministers a maintenance, an honorable support. What was taken from them to pay other taxes must be made up by increasing the minister's tax ; so that in the end it would come precisely to the same thing. Hence, no doubt, it became the usage for towns to omit taxing their ministers, and this exemption would necessarily be con- sidered as a part of trhe minister's compensation in the contract of settlement. What has been mentioned, I have no doubt, gave rise to the custom or usage to exempt the minister of the town from tax- ation. It will enable us, also, to judge of the extent of the usage, in the absence of particular proof. Governor Hutchinson, who knew the laws and customs of Massachusetts better than any man in his day, and perhaps before or since, tells us (1 Hutchinson, 395) that " the clergy at all times have been exempt from all taxes for their persons, or estates under their own improvement ; not merely because this was agreeable to the Levitical law, but because they depended on the people, from year to year, for their sup- port, and whatever was added to their annual expense by a tax, so much must have been added by the people to enable their minister to pay it." The word clergy is broad enough, in its signification, to comprehend Mr. Kidder ; he is a clergy- man, still one of the clergy. But the reason assigned for the exemption leads to a more confined interpretation of the word ; namely, settled ministers. The clergy not taxable are those whom the people, i. e. a particular town or society, are bound to support, and who on their part are bound to minister in holy things. But where a clergyman does not depend on the people for support; where he is not the minister of any particular town or society, bound to preach to them, and they bound to support him, — the reason for exemption fails. If he is at liberty to preach or not to preach, the people are at liberty to tax or not to tax. From this passage of Governor Hutchinson, we perceive, also, that there was another limitation in this exemption from paying taxes ; namely, it only applies to estates under the im- provement of the minister. Generally this will be the same APRIL TERM, 1807. 10:5 Kidder v. French. thing as saying that lie slutll not be taxed for estate in the town in which he is settled. If the estate lies in another town, it is taxable ; because the people there are supposed to have no equivalent for the exemption. The modern doctrine in Massachusetts is to the same effect. It now depends on statute, which, however, it is apprehended, has introduced no change in the law. All settled ministers, and their estates in the town where they are settled, or under their own actual improvement, are exempted from taxation, (a) Mass. Hist. Coll. V. 48. An action was brought in the county of Hampshire, Massachusetts, in 1797, where the plaintiff was a Baptist minister, living in Buckland, and preaching in a meeting-house in Chester. His hearers and church were of any part of the country who chose to associate with him. The question was whether he was a settled minister (the action was trespass against the assessors for an illegal assess- ment). The Court were of opinion that he was not a settled minister within the meaning of the statute, because he was not the settled minister of a town, parish, or religious corporation obliged to maintain a public teacher of religion, &c. ; a man's being ordained over a voluntary association, formed by no act of government and bound by no law, is not [does not constitute him] a settled minister within the meaning of the act. The de- nomination of the plaintiff made no difference in the case. (&) In Connecticut, we are told (1 Trumbull, 421, 451) that, in 1698, the assembly passed an act, exempting the clergy from taxation. But this, it seems, was construed only to release their persons from taxes ; for, in 1706, it was found necessary to give them further encouragement, and it was accordingly provided " that all ministers of the gospel that now are, or hereafter shall be, settled in this colony, during the continu- ance of their public service in the gospel ministry, shall have (a) Qucere. Was it not decided in Mass. Supreme Court, Dana v. Groton, 1777 or 1778, that a minister disconnected with the church and town, though he still continued to preach, was liable to be taxed to the war, and to furnish soldiers, &c. ? He relied on his ministerial character for exemption. (b) See Washburn v. Fourth Pariah in West Sprinyjield, 1 Mass. 32. 164 HILLSBOROUGH. Kidder v. French. their estates lying in the same town where they dwell, and all the polls belonging to their several families, exempted from the payment of rates." And it is now held, in that State, that settled ministers of the Christian religion, their polls and estates lying in the society or town in which they dwell, are exempted from taxation (Wolcott on Direct Tax., 26. See 2 State Papers, folio, green, 26). Though we have no statute provision, either before or since the Revolution, on the subject of ministers' estates, yet we doubtless brought with us from Massachusetts, in the separa- tion, in 1679 or 1680, the customs and usages of that State. I hope we have not diminished the stock of respect and attachment to the clerical profession with which we set up for ourselves, though I fear we have added little to it. It is fair to presume that we adopted the prevailing sentiments and the general usages of New England. From what we learn of that usage, and from the decisions on the subject, we are justified in believing that a settled minister, one bound to discharge the pastoral functions to a society bound to support him in return, is alone entitled to claim this privilege of exemption from the burden of taxes. The public are supposed to derive an advantage from his useful labors. But where a person is at liberty to preach or not, the public have nothing as a con- sideration for the privilege. Till 1796, Mr. Kidder, being the minister of Dunstable, was entitled to receive a salary from the town. To tax his estate towards that salary would have been absurd. The town was bound to pay it without defalcation ; and, as a further encour- agement for his services to the State, he was entitled to ex- emption from all taxes. But, since that period, neither the town of Dunstable nor the public have any further claims on Mr. Kidder. He has, therefore, no claim on them. He may labor in word and doctrine just as he pleases, and when and where he pleases. He may preach only once a year .or every day in the year, just as he pleases ; or he may rest from his ministerial labors altogether. He may follow agriculture, commerce, or the profession of the law ; or he may mix these, as some have done, with the ministerial functions. If he is to APRIL TERM, 1807. 165 Kidder v. French. be exempt because he is a minister, and preaches, how often must he preach to work out his taxes? Will one Sunday in the year answer the purpose? We must draw the line some- where. If any preachers are exempt except settled ministers, why should not all who go about doing good in this way be exempt ? A Methodist itinerant preacher, or a Baptist, have the same claims in law as a Congregational preacher. Shall it be in the power of a presbytery at Philadelphia or in Scot- land, or a Methodist bishop who made himself such, by ordain- ing a man to the church universal, as the practice is, to exempt that person's property from paying taxes? This would be enabling such men, or bodies of them, to confer civil privileges. The venerable council who ordained Mr. Kidder, or that which loosed him and declared that he was still an ordained minister, are of no greater consideration in our law than a Methodist bishop or Baptist association. I would not be understood to speak slightly of councils or of denominations. But I speak of them as they are viewed by the equal eye of the law, — as all upon a level. Mr. Kidder having been once a settled minister, and his estate acquired while he was such, makes no difference in the case. While he was a settled minister, he had the privilege. When he ceased to be such, he became, in the eye of the law, weak, and as other men. It is not pretended in this country, generally, that the clerical character is indelible, — once a clergy- man and always a clergyman ; much less that once a settled minister and always such. The clerical character with us is easily put on, and it is as easily put off. Even ordination is easily obtained among the many different sects into which our country is divided, and it may be difficult, in some cases, to determine who has a right to call himself an ordained minister of the gospel. But it is not equally difficult to determine who is the settled minister of a corporate body, (a) Here, then, the line must be drawn, till the legislature is pleased to draw another. When they do, I shall cheerfully acquiesce. If it (a) A settled minister is one inducted ; settlement, among Presbyterians and Congregationalists, is induction among Episcopalians. 2 Boswell's Life of Johnson, 104. 166 HILLSBOROUGH. Kidder v. French. is thought proper that every man who lias once been ordained, and who has kept his garments pure and unspotted, as Mr. Kidder has done, should have this privilege conferred upon him, I shall be content. I am happy to find that the testi- monials in favor of Mr. Kidder's character and services are extremely favorable. But they cannot affect the merits of the question before us. The plaintiff must become nonsuit, which was entered accord- ingly. (a) Wingate, J., dissented from this decision. [It was subsequently decided that the estate of a settled minister is exempt from taxation. The following is a con- densed report of the case, so far as relates to this point.] Humphrey Moore v. Benjamin Poole, Hillsborough, December Term, 1815, was an action on the case, against an assistant assessor of the United States Direct Tax, for enumerating, in the list of taxable property, the real estate of a settled minister, whereby, and by reason of said enumeration, the principal assessor proceeded to assess a tax, which was afterwards collected by distraint. The declaration averred, among other things, that the plaintiff was, at the time of said enumeration, " and long before, and ever since hath been, and now is, a regularly ordained and settled minister of the gospel in the said town of Milford, 1 and, as such, his houses, lands, buildings, (a) See Hutchinson, Coll. Papers, 496 (Randolph). "Magistrates, and ministers, and church elders pay no poll-money, or other taxes, upon lands or personal estates." See also Id. 532. Act N. II. March 10, 16!)§ (riles), for raising money for support of gov- ernment, &c. (passed assembly; quaere, council, &c), enacted, &c, that a rate of £600 be forthwith made on all persons and estates, real and per- sonal, throughout the province, without exception of any persons but ministers, according as it is hereafter proportioned to each town, &c* 1 The plaintiff was the minister of the town of Milford at the time in question. At a town-meeting held April 28, 1802, the town voted to unite with the church, and call Rev. H. Moore to be the minister of the town. It was voted " to give him a settlement of S600, a salary of $100 per annum, and $100 a year when he was too old to preach." * President and Council, ministers and elders of churches, exempted in Province Laws of 16|§- 1 Provincial Papers, 399. APRIL TERM, 1807. 167 Kidder v. French. and real estate, in the said town of Milford, for and during the whole of said time, have been and are, by the laws of the State of New Hampshire, exempted from taxation, and he, the said plaintiff, is, and hath been during his said ministry, a per- son not liable to be taxed ; " and that the defendant well knew these facts. A demurrer to the declaration was overruled, and judgment was rendered for the plaintiff. Smith, C. J., in delivering the opinion, discussed the mean- ing of the exemption in the United States Tax Law, of " lands permanently or specially exempted from taxation by the laws of the State wherein the same may be situated;" and held that this includes (besides lands now specially exempted by statute) lands which have always, or even generally (in opposition to specially), been exempted from the State land- tax, i. e. not taxed ; whether the omission depend for its basis on statute, common law, or usage. He then said — "If this be the true construction of the clause in question, let us now inquire whether the plaintiff's lands are, by the State law, permanently or specially exempted from land tax. " I consider the decision in Kidder v. French et ah., Hills- borough, April Term, 1807, as decisive to show that Mr. Moore's farms are exempted from any tax made under the authority of the State, and consequently exempted from the United States land tax. " It may be said this is not a special exemption, — there is no express provision in the State law for it ; and it is not a permanent exemption, — it depends for its duration on Mr. Moore's continuing the settled minister of Milford. It is true it does so depend, but yet is as permanent in its nature as any exemption can be. All exemptions are in favor of persons or corporations holding for a certain use or purpose. The ex- emption is in favor of persons and particular interests, religion, literature, manufactures, &c. The exemption is made, not in respect of the lands, but the use : and, in the nature of things, 168 CHESHIRE. Walton v. Henderson. ran be no more permanent than the use. The exemption of all lands owned and occupied by all settled ministers is a permanent exemption, certain and definite." * CHESHIRE, MAY TERM, 1807. James Walton v. James Henderson. A promissory note was made payable to A., or bearer, " on demand, at W., after sixty days." The maker then lived at VV. in Massachusetts, but, after the expiration of the sixty days, removed to New Hampshire, leaving property in the hands of a resident of W., to pay all his notes that might be presented. Held, that the holder of the note, who had no notice of the deposit left in W., need not make a demand at W., or anywhere else, before suing the maker. This was an action of assumpsit on a promissory note, dated at West ford, June 10, 1805, made by defendant to one J. Abbot or bearer, for $5, payable on demand at Westford, after sixty days, for value received. The declaration stated that the defendant was, at Jaffrey, June 10, 1805, specially 1 By the statute of Dec. 25, 1816, it was enacted, "That the real and personal estates of all ordained ministers of the gospel of every denomi- nation, within this State, shall hereafter be assessed and taxed in the same way and manner as other estates are now, or hereafter may by law be taxed; any law, usage, or custom to the contrary notwithstanding. Pro- vided, nevertheless, that nothing in this act shall be so construed as to affect any contract in writing heretofore made between any town in this State, and the minister thereof." An ordained minister not settled over any particular society was not exempt from taxation under the Massachusetts statute of 1811. Ruggles v. Kimball, 1815, 12 Mass. :337. See also, as to what constituted a " settled " minister, within the meaning of the exempting statute, Gridley v. Clark, 1821, 2 Pick. 403. In more modern times, clergymen, instead of enjoying exemption from taxation, have been subjected, in Pennsylvania, to an occupation tax. Miller v. Kirkpatrick, 1857, 29 Pa. St. 220. MAY TERM, 1807. 169 Walton v. Henderson. requested to pay the plaintiff, who was then the bearer, &c. There was also a count for $7, money lent. This cause was submitted to the Court on a case stated. In substance, — that the note was made and transferred as stated in the declaration (and that the plaintiff is a bona fide holder for a valuable consideration) ; that the defendant, at the time, resided in Westford, in Massachusetts, and continued to reside there till December, 1805, when he removed to Jaffrey, N. H., where he has ever since resided ; that the defendant issued this note, and many others similar thereto, at Westford, which circulated as bank bills; that previous to the commencement of this suit, which was after defendant removed to Jaffrey, no demand was made for payment of defendant or any other person, nor at any place in Westford ; that the defendant has had property or money in the hands of a Mr. Abbot, of Westford, ever since he left that place ; that, about the time of his leaving Westford, or shortly after, he requested Abbot to discount, i. e. pay all his bills or notes of the tenor of that in suit that might be presented to him ; that Abbot has always paid all such bills presented to him for payment, and still has funds in his hands for that purpose, (a) Smith, C. J. The question is, whether the plaintiff is entitled to recover. This note is, in effect, payable after sixty days. If the words "at Westford," in the body of the note, had been omitted, it is clear no demand would have been necessary ; a suit might have been commenced at any time after sixty days without demand. 1 Tidd, 387. Where the contract is to pay a collateral sum upon request, there the request, being parcel of the contract, and, as it were, a con- dition precedent, ought to be specially alleged with the time and place of making it; but where the contract is founded (a) The case, as here stated, varies a little from the statement made and signed by the counsel ; but, on this being read, it was agreed to be correct, and substituted in room of the one filed. (It was not stated that holder had any notice that Abbot had funds at Westford, &c.) 170 CHESHIRE. Walton v. Ilcii'lcrson. on a precedent debt or duty, — as in the case of a bond, note, iV.e., for money lent, &c., — there no special request need be alleged or proved ; the bringing of the action is sufficient request, (a) Chitty, 133; Evans, 05. Even in the case til' an accepted bill, no request is necessary to be proved before suit commenced against the acceptor, because his engagement to pay is absolute. Where the action is against the indorser of a note, or drawer of a bill, there a demand in general must be proved of the acceptor or maker, and notice given to the defendant, because the defendant is not charge- able till such demand made, and default of payment and notice. If, therefore, a demand is necessary in this case, it must be, as has been already mentioned, because the words " at West- ford " are inserted ; and the doctrine must be that, where no place of payment is designated, then no demand is necessary ; but, if the party bound to pay absolutely, — the debt being due from him, — specify a place where he will pay, in that (use a demand must be made, or attempted to be made, at that place, before he is liable to a suit. I find no authority in favor of an}'- such doctrine. On the contrary, I apprehend that the naming of a place of payment, in the case of an absolute note for money, given for a precedent debt, does not essentially vary the nature of the contract. The debtor is still bound to find out the creditor, and to pay, jis he would have been in case no place of payment had been designated. Here he obliged himself to pay at Westford ; but this did not narrow the obligation he was under, in respect of the pre- cedent debt, to pay anywhere. If the promise had been to deliver specific articles instead of money, the case would be different ; the place must then be considered as parcel of the contract. Here it is only to be considered as a circumstance. Co. Litt. 212 a; Amer. Prec. 82. In the case of Smith v. Be. la Fontaine, the acceptor of a bill of exchange accepted to pay at his banker's. The plaintiff could not prove a presentment of the bill, or demand of pay- (a) A contract in a particular place makes a man a debtor in every place in England. 1 Wins. Saund. 74. MAY TERM, 1807. 171 Walton v. Henderson. ment at the banker's, notwithstanding which the jury found for him. The Court held the proof unnecessary, and refused to grant a new trial. This is a stronger case than the present. The acceptor seems entitled to have the bill presented before he is called on for payment. He was not the original debtor. He was only liable on his engagement, and the promise was to pay when presented at his banker's. Bishop v. Chitty, 2 Stra. 1195, is not contra. That was where the holder had taken a draft on the banker, and had been guilty of negligence in not demanding payment of the banker. To make this case like that, this note should have contained an engagement to pay at J. Abbot's, or rather an engagement that J. Abbot should pay, and, if he did not, Henderson would. Saunderson v. Judge, 2 H. Bl. 509, is not an authority for defendant. In that case, —indorsee v. indorser, — the maker, by memorandum at the bottom of the note, had engaged to pay at the house of Saunderson & Co. (plaintiffs). The maker had absconded. The Court held no demand was necessary in this case, Saunderson & Co. having no funds of the maker, who had absconded ; and, if necessary, it would be sufficient, if made at the place appointed. It was not determined that, if the suit had been against the maker, and the memorandum to be con- sidered as a part of the contract, demand must have been made at the house of Saunderson & Co. I have found no case where the naming of a place of pay- ment has been held to make a demand necessary, where no demand was necessary before. Where a demand is necessary and a place be designated, there demand may be, and perhaps must be, at that place. Dutch West India Co. v. Van Moses, 1 Stra. 612 (5 G. Bacon, 58 ; 2 Ld. Raym. 1532). Covenant to pay money borrowed at Amsterdam, the payment to be in the bank there. It was held that an action lay in England, where the debtor was found ; the action was really for the money lent, a thing transitory and personal. The defendant is a debtor wherever he goes, and may be sued wherever found. The case is only applicable so far as it goes to show that no proof 172 CHESHIRE. Walton v. Henderson. was required of any demand for the money at the Bank of Amsterdam. When a contract is made, in a particular country, for payment of money, whether a place in such country be specified, at which payment will be made, or not, it will be understood as the intention of the parties that it should be paid in such country ; and }et, when sued in another country, it never was considered as a ground of defence, that no demand had been made in the country where the contract was made ; or, in other words, the place of payment of money due for a pre- cedent debt is not material. It is laid down in Co. Litt. 210 6, n. 1, that, if A. cove- nant with B. that C. shall pay B. £100, at Rotterdam, without suit, on request, before B. can maintain an action against A. for the money, there must be a demand of C. ; for A. only covenanted to pay on C.'s neglect or refusal. But this de- mand may be made anywhere ; for, if limited to Rotterdam, perhaps C. might never go there, and then the engagement would be of no effect, (a) But, if the law were otherwise, if the place were material in this case, — Henderson not obliged to pay till demand made at Westford, — yet the holder, under the circumstances of this case, is not obliged to make demand. He is entitled to sue without request, and that for two reasons. 1. Because the place is so uncertainly described that no demand could be made. (6) To say that the holder of the note may choose the place in Westford at which to demand is making the demand an idle, though an expensive, ceremony. Suppose it had been still more general, — an engagement to pay in the County of Middlesex or in the Commonwealth of Massachusetts. If Henderson had notified the holder of the bill of a par- ticular place in Westford at which he would pay, e. g. at (a) This would be an authority to show that, if a demand necessary in this case, yet, if Henderson removes from Westford, Walton not obliged to demand. (b) I have found no case where the name of a town or city is held the designation of a place of payment. MAY TERM, 1807. 173 Walton v. Henderson. J. Abbot's, if a demand necessary, this notice would cure the defect of uncertainty. No such notice was given. 2. The holder of this note is not bound to demand payment at Westford, because Henderson had removed from that place. Amer. Prec. 82. It will not be pretended that plaintiff was bound to demand till December, 1805. There was then no person in Westford of whom demand could be made. Ac- cording to the authority cited from Co. Litt. 210 b, n. 1, no demand at Westford was essentially necessary, (a) If the promisor has put it out of the power of the holder to make the demand at the place specified, he is not bound to demand elsewhere ; and the promisor shall derive no advantage from his own act, nor shall he subject the holder to any disad- vantage. (6) It may, perhaps, be said that he might, in this case, have demanded at Jaffrey ; but suppose Henderson had removed to Ohio, leaving estate in Jaffrey. If Abbot be the agent of Henderson, no doubt Henderson, by giving notice to Walton that Abbot was his agent, might make demand on Abbot necessary (if a demand necessary at all). But no such notice was given. Walton was not obliged to apply to Abbot for payment, for this plain reason, he had no notice that Abbot would pay. In this case there has been no payment or tender, nor any thing equivalent to payment or tender, — any thing which in law or equity bars the plaintiff's demand. The mere pro- viding of a fund for the payment of this note is no defence in equity, unless the plaintiff had notice of the fund, and was bound to resort to it for payment (Folliot v. Ogden, 1 H. Bl. 123-136). The defence is not payment or tender, but that the plaintiff is not entitled to sue till he has demanded the money at Westford. My answer is, that, this note being given for a precedent debt, and being for the payment of (a) [Reference is here made to Ruggles v. Patten, 8 Mass. 480, and Dickinson v. Bowex, 16 East, 110.] (b) If drawee or maker of bill or note has removed to an unreasonable distance or an unknown place, the bill or note is to be considered as dis- honored. Bayl. Bills, 30; Ld. Raym. 743. 174 CHESHIRE. Walton v. Henderson. money absolutely, the place is not parcel of the contract, so as to make a demand necessary ; that the words " at Westford " have no effect. But if this be not so [my answer is], that the place is here so uncertainly described that it imposes no duty on the holder to make demand, at least till notice of a more particular place, e. g. J. Abbot's dwelling-house, &c. ; that, even if the place had been specially designated, when Henderson removed from Westford, the plaintiff became ex- cused from the obligation to demand payment at Westford ; and, as neither the law nor the contract imposed on him the necessity of demanding at any other place, this action is well brought without any demand ; and, consequently, that the plaintiff is entitled to judgment. I am glad to find the law is so, for, otherwise, many per- sons taking these notes as bank bills would be greatly de- frauded, (a) I am of opinion that money had and received, money laid out and expended, and perhaps money lent, would lie in this case ; but it is not necessary to give an opinion on this point, as the Court is clearly of opinion that the action is maintainable on the note. On this opinion given, the defendant, according to the terms of the agreement, was defaulted. (6) 1 (a) Very few persons would, it is apprehended, advert to the words " at Westford; " and, if they did, fewer still would suppose that, if Hen- derson, the maker, thought tit to leave that place, the debt was lost unless they despatched a man, with a witness by his side, to demand payment in the streets of Westford. I believe no man, whose mind was not a little warped by legal quibbles, would ever think of setting out on so silly an errand. {Quaere, whether the declaration should not have stated the matter of removal from Westford.) (b) See 14 East, 498, semble contra; and 16 East, 110; 1 Wms. Saund. 33; N. H. Laws, Act of June 14, 1805, 397; Mass. Act on the same sub- ject; Fenton v. Goundry, 2 Campb. 656, n. Walcot, administratrix, v. Van Santvoord, Fed. Repub., Baltimore, Nov. 9, 1819; s. c. New York, October Term, 1819, held, that [in] actions 1 Brigham v. Smith, 1841, 16 N. H. 274, was an action on a note payable "at the Suffolk Bank, Boston, on demand." It was held that a demand at that place was requisite to the maintenance of the suit. In an unre- MAY TERM, 1807. 175 Winch v. Wright. Joseph Winch v. — Wright, B. Wright, Joel Wright, Amos Thompson, and Jesse Hardy. Receiptors refused to deliver attached property when demanded by the sheriff on the execution. Thereupon, the debtor's body was taken on the execution. Smith, C. J., was of opinion that taking the body did not discharge the receipt- ors from their liability to the officer. The cause' having been compromised, no decision was given. This was an action of trover for two oxen, six cows, two three-year old steers, ten other young cattle, one horse, eigh- teen sheep, three hogs, twenty tons of E. hay ; all valued at Plea : the general issue. This cause was opened to the jury at last Term, when it appeared in evidence that Adams & Nazro sued one Nathaniel Emerson. Calvin Bragg was the deputy sheriff who served the writ. He attached certain personal property of Nathaniel Emerson. John Emerson, Isaiah Hardy, Nathan Hardy, on notes or bills payable at a particular place, as against the maker of the note or the acceptor of the bill, it is not necessary for the plaintiff to allege or prove a presentment for payment at the time or place specified, but that the non-existence of the fact of presentment is matter of defence only, to be available when the defendant shows that he was ready at the day and place to pay. Utica Gaz. See the case 17 Johns. 24S, Walcot, administratrix, v. Van Santvoord. ported case in Coos County, July Term, 18G8, the note was payable "on demand at Columbia;" and a demand was held necessary. Author- ities for and against the doctrine of Briyham v. Smith are cited in 1 Pars. Bills & N. 1st ed. 429, 430, and in 1 Dauiel, Neg. Inst. §§ 645-617. In Cook v. Martin, 1845, 5 Sm. & M. 379, it was held, that, whatever may be the rule with reference to notes, where the demand can be made instantly, no demand at the place is necessary upon a note payable at a particular place, " on demand, five months after date ; " the Court sayiug, p. 393, that such notes " can only be regarded as notes payable at a particu- lar time." 176 CHESHIRE. Winch v. Wright. and Reuben Heath gave a receipt for the property, promising to redeliver it to Bragg on demand. Adams & Nazro obtained judgment, Superior Court, Octo- ber, 1805. The execution was delivered to Bragg, and, within thirty days next after judgment, he demanded the goods at- tached, which were not delivered. Nov. 13, 1805, he obtained a writ of attachment, in his own name, against the receiptors, John Emerson and others ; and on Dec. 3, 1805, Joseph Winch, the present plaintiff, attached the property mentioned in the present declaration, which was delivered to the present de- fendants, on their receipt, promising to redeliver the same to Winch, the plaintiff, on demand. The whole property was valued at $1,300. At April Term, 1806, C. C. P. Cheshire Co., judgment was rendered in the suit Bragg v. John Emerson et ah. ; damages and costs $1,301.92. Before the commencement of the present action, viz. April 28, 1806, Winch demanded, on Bragg's execution, the property attached, and which had been delivered to defendants, and they refused to deliver it. Immediately upon this refusal, Bragg, who was present, directed Winch to take the bodies of John Emerson and others, the first receiptors, which he did ; and they are now in prison by virtue of that commit- ment. [The defendants attempted to show that Winch discharged them from their engagement, by certain declarations which he made after the bodies of the first receiptors were taken on the execution.] As there was no dispute about the facts, except this parol discharge by Winch, it was agreed that the cause should be withdrawn from the jury, and considered as a case stated for the opinion of the Court. The parties compromised, and the action was dismissed at this Term. Smith, C. J., committed some views to writing, from which the following is an extract : — The defence is, first, that the receipt became void on the MAY TERM, 1807. 177 Winch v. Wri^lit. bodies of the owners of the goods attached being taken in ex- ecution ; that this is a satisfaction of the debt due Bragg. But this is not so: Bragg cannot take the bodies and estate of his debtors at the same time in execution ; bill Bragg may take the bodies, and Winch the estate. Winch became, on the attachment, answerable to Bragg tor the goods attached; and this right of Bragg to look to Winch still exists, till actual valuable satisfaction made by John Emerson et ah., his debtors ; i. e., till payment of the debt. By taking the bodies, Bragg did not discharge the estate ; he had no election ; he could not get the estate. If defendants had, on demand by Winch, produced the property, and Bragg had chosen to lev}' on the bodies, defendants would have been discharged. Nothing discharges defendants from their engagements except the production of the property on demand, or satisfaction of the judgment to respond which the attachment was made, i. e. pay- ment. Perhaps, indeed, if no demand had been made, and no refusal on the part of defendants, and Bragg had chosen to take John Emerson et ah., his debtors, in execution, it might have been considered as satisfaction ; lie might be considered as having made his election. But in this case lie had no choice. He might sa} r , " I cannot get the estate ; I will take the bodies, and pursue my remedy against Winch, who ought to have had the goods here on which I might have levied." The body is not satisfaction like payment. If the persons now in executiou were all to die, the debt would still live, it would survive them. The rule of law on which defendants rely extends no farther than this, that, on the same judgment, the body and property of the same person shall not be taken in execution. In Lord v. Hobbes, Rockingham, September Term, 1804 [reported ante~\, which was debt on bond against defendant, and another who died since commencement of this suit, to abide the award of referees on submission of an action pending in court, there had been judgment (in the suit referred) on the report, and Hobbes had been committed in execution. It was held that this commitment did not discharge the bond ; though, if the judgment on the award had been paid, it would have been a good discharge. 12 178 ROCKINGHAM. Brown v. Langdon. The holder of a bill may sue the acceptor, drawer, and in- dorsers, at the same time ; have execution against them all ; may take the bodies of each in execution ; he may have ca. sa. against all but one, and fieri facias against that one ; nothing but actual payment will be a discharge. Chitty, 182, 183 ; Kyd, 116, 117. 1 ROCKINGHAM, SEPTEMBER TERM, 1807. Thomas Brown and Samuel Larkin, Church-wardens of St. John's Church, Portsmouth, v. Henry Langdon and four others. A religious corporation is capable of taking by devise. Devise, in 1765, to the Church of England as by law established in Portsmouth, or Queen's Chapel in Portsmouth, the bequest to be under the directions of the church-wardens of said parish for the time being, and to remain as a perpetual glebe to the said church and parish and to their successors for ever. Held, that the devise to Queen's Chapel was good, if Queen's Chapel was a cor- porate body in 1765. That it was a corporate body may be proved other than by act of the legislature or governor. Exercise of corporate privileges for upwards of a century, recognition in ancient records and papers, and in acts of the legislature, are evidence on this question. This was an action of ejectment, in which the plaintiffs, as church- wardens, demand against the defendants an un- divided moiety of a tract of land and three dwelling-houses thereon, &c, situate in Portsmouth, containing fourteen acres, more or less, bounded as follows, &c, and is the same which Samuel Sherburne, late of Portsmouth aforesaid, esquire, de- ceased, by his last will and testament, devised to said church ; whereupon said Brown and Larkin, as wardens as aforesaid, complain and say that, by a certain statute of said State, made and passed the fifteenth day of February, 1791, entitled 1 This opinion is directly sustained by Twining v. Foot, 1850, 7 Cush. 512. See also note to Lord v. Hobbes, ante. SEPTEMBER TERM, 1807. 179 Brown v. Langdon. An Act to Incorporate the Episcopal Society in Portsmouth, it is, among other tilings, enacted as follows (the declaration then sets forth the preamble to the act, and then adds): that the said parish (the Episcopal Society in Portsmouth) he, and hereby are, formed into a body politic or corporate, by the name of Saint John's Church, with all the privileges and im- munities necessary or incident to a religious parish or society ; with power to hold the church and church-yard, and all grants and endowments heretofore made, or that hereafter may be made, said church ; with full power to sue for and recover, in the name of the church-wardens for the time being, any real or personal property belonging to said church, of any person who already hath or hereafter may have any such property in his hands or possession ; and to do and transact all and every act that any parish or religious society may or by law can do within this State. (The declaration then recites the second section of the act, whereby the name of the ehureh is altered from Queen's Chapel to St. John's Church.) The plaintiffs further say, that the aforesaid St. John's Church, within thirty years last past, were seised and possessed of the demanded premises in their demesne as of fee, and that defendants disseised the church, Jan. 1, 1805. Second count. Plaintiffs, as wardens, by virtue of the statute, and for the use of said church, sue for the same premises ; and complain and say that the aforesaid Sherburne, in his lifetime, Feb. 5, 1765, was seised, and by his will de- vised the premises to the said church in fee-simple, and died seised, the will proved Feb. 18, 1765, and the aforesaid chinch the same day entered ; by virtue whereof, and by force of the said statute, the said church, within thirty years last past, be- came seised; defendants disseised, &c, Jan. 1, 1805. Third count. Same plaintiffs, in same capacity, demand same premises, set forth seisin of Samuel Sherburne, who made will, and thereby devised the premises to the church, to hold to them and their successors as a perpetual glebe for the use of said church ; Samuel Sherburne died seised ; will proved, Feb. 18, 1765; same day, Arthur Brown, late of said Portsmouth, clerk, being then and until the time of his death parson and lso ROCKINGHAM. Brown v. Langdon. minister of said church, entered, and thereby became seised of the same, to hold to him and his successors in right of said church, and continued so seised thereof, and died seised, March 1, 177t>: whereby, and by virtue, of the aforesaid statute, the said church, within thirty years last past, became seised in their demesne as of fee; yet defendants have disseised them, Jan. 1, 1805. Writ dated March 1, 1805. The defendants pleaded the general issue, reserving liberty (which does not appear to be agreed to) to give special matter in evidence. Mason, for plaintiffs. Sullivan and Story, for defendants. Smith, C. J., summed up to the jury, February Term, 1807. In this case, Brown and Larkin are merely nominal plaintiffs. The real party plaintiff is St. John's Church. If the church recover, it must be because they have a good title. If the church has no title, it is immaterial whether the defendants have any title or not. The church must also prove a seisin within thirty years next before March 1, 1805. Act of incorporation was passed Feb. 15, 1791. [The plaintiffs claim title under devise of Samuel Sher- burne.] Will of Henry Sherburne, Dec. 27, 1757, proved April 29, 1758; devise of premises to his sons, Samuel and Henry, in fee. Will of Samuel Sherburne, Feb. 5, 1765, proved Feb. 18, 17G5, is in these words: " I give and bequeath to the Church of England, as by law established in the town of Portsmouth, £2,000, old tenor; to the support of an organist in Queen's Chapel, under the care and direction of the vestry and church- wardens for the time being. I give and bequeath to the said church or chapel my moiety or half part of a pasture or lot of land and meadow (the premises) ; which said tract was given me by my honored father in his last will and testament ; and this bequest to be under the directions of the church- wardens of said parish for the time being, and to remain as a perpetual SEPTEMBER TERM, 1807. 181 Brown v. Langdon. glebe to the said church and parish, and to their successors for ever." He then devises to the church another small lot, to be under the care and directions of the church-wardens and ves- try as aforesaid, intended as a place to rebuild a school-house upon, to have and to hold the same to the church-wardens and vestry for the time being, for ever. From these papers it appears that Samuel Sherburne was the owner (for Col. Henry Sherburne's, his father's, title is admitted) in 176") ; that he attempted to devise it, by his will of that date, to the Church of England as by law established in Portsmouth, or Queen's Chapel in said town. There is no doubt Samuel Sherburne was capable of devising; but can the plaintiffs, St. John's Church, take and hold the estate de- vised ? If they cannot, verdict must be in favor of defendants, and the land will either go to the residuary devisee in Samuel Sherburne's will, or to his heirs at law. It is very clear that Samuel Sherburne could have accomplished his end in another form, against which there could be no objection. He might have devised to certain persons, to hold for specified purposes, or in trust to apply the rents and profits to the use of the minister officiating in that church or chapel. 2 Wooddes. 276, n. k. The legal property would in that case have been in the devisees, and they, or (if so provided in the devise) the survivor, might convey to others to hold in trust as before. If this church had been incorporated in 176"), as they were in 1791, it is said, by defendant's counsel, they could not take by devise. If they could purchase in any other way, I see no reason why they could not take in this way. I have not had an opportunity, on this point, of availing myself of information acquired by former researches into the powers and capacities of corporate bodies in this State. But at present I see no reason to doubt but that a body politic, like our towns, parishes, or relig- ious societies, is capable of taking by devise, independent of any special authority contained in an act of incorporation. But it is further said that, supposing the Episcopal Church incorporated in 1765, still this devise would not give them the property in question. This action is brought by St. John's Church, and the devise was to the Church of England by law 182 ROCKINGHAM. Brown v. Langdon. established in Portsmouth, or Queen's Chapel. At present, I am of opinion there is nothing in this objection. [16 Mass. 495, cited in margin.] If the church was a body politic in 1765, by the name of Queen's Chapel, this devise is, in point of form, sufficient to transfer the property to them, (a) The change of the name — for that would be the only effect of the act of incorporation in 1791 — would not devest the prop- erty. (J) If it would, here it is expressly vested in St. John's Church. The legislature cannot take Mr. Langdon's property from him and give it to St. John's Church ; but they can, with the consent of Queen's Chapel, vest their property in the same persons by the name of St. John's Church. It has been further objected that, supposing Queen's Chapel or the Episcopal Church to be a body politic in 1765, yet, being a religious corporation, they cannot take property. Common law, as well as statute law, grows out of the situa- tion and circumstances of the people. There was a time in England when the lay gentry thought they saw the property flowing into the coffers of the clergy a little too freely. The clergy of that day were not content with the personal prop- erty ; they became possessed of a considerable proportion of the real property of the kingdom. Hence the laws to restrain alienations to the clergy. These laws were not imported into this country, at least into New England, because they were not wanted. The clergy were poor, — I speak of the first clergy of New England, — they abhorred riches. The wealth of a clergyman in those days was his crown of rejoicing, the num- ber of converts he made, the number of sinners he reclaimed. (a) It has been said by defendant's counsel that this devise is to the parson, and this gives no title to the church. 1 Blackst. 497; Pow. Dev. 336. The parson could not take, because, in this State, he is not a corpora- tion sole, as in England; and the legislature could not, in 1791, devest the property from the parson, if he could take, and vest it in the church. But I am of opinion this was not a devise to the parson, but to the church. (b) Though the name of a corporation be changed (as in the case of a new charter), yet it still retains its former rights and privileges. 1 Chr. Notes, 650. A change of name or new charter does not merge the ancient privileges : Com. Dig. Franchises, F. 9, g. 5; and it shall retain the pos- sessions it had before. SEPTEMBER TERM, 1807. 183 Brown v. Langdon. He disdained worldly wealth. He coveted not bouses and lands. Very many of the clergy of that day accounted it unlawful and unchristian for a clergyman to have any fixed salary. Hence I conclude there never was any law in New England to prohibit clergymen or religious corporations from acquiring property. It was always the policy of our law to encourage public instruction in religion and morality, and the support of it by religious corporations. The law never could, then, have prohibited them from acquiring the means of accomplishing that end. But the great objection to the plaintiff's title is, that neither Queen's Chapel nor St. John's Church had any legal existence till 1791. A devise to the Church of England in Portsmouth would be void for uncertainty in the description of the devisees. The Church of England never was established by law in this State. A devise to a society unincorporated is not valid, because it cannot be ascertained who are to take ; an unincorporated society has no identity ; it cannot be ascertained, (a) 1 Was there a body politic in Portsmouth by the name of the Church of England, Episcopal Society, or Queen's Chapel, at the time of this devise, Feb. 5, 1765? No act of incorporation is produced till that of Feb. 15, 1791. The act implies strongly that no act of incorporation had ever been passed. But [this] is not conclusive ; the plaintiffs may still show an act, if they can, which constituted Queen's Chapel a body politic before this devise was made. The)' can produce no such act ; but they contend that they can produce other satisfactory evidence of the fact : for 166 years they have acted as a corporate body ; exercised the powers of a corporation ; have been recognized by our statutes as such. (a) Shep. 234, 237. Lands cannot be granted to the church-wardens of a parish. Parishioners not capable of taking by devise. 2 Wooddes. 27(3, n. ft. 1 Such a devise is now sustainable under Gen. Laws, c. 153, § 5. See also Bellows, J., in Newmarket v. Smart, 1803, 45 N. II. 87, 98, 99. Perley, C. J., in The Dublin Case, 1859, 38 N. II. 459, 575; Hennessey v. Walsh, 1875, 55 N. H. 515; 2 Kent, Com. 12th ed. 287, n. 1, 288, u. a. 184 ROCKINGHAM. Brown v. Langrton. [The evidence on this point is as follows : — ] A paper recorded in Portsmouth Town Book, in 1664, by selectmen, that it might not be lost. Purport: Grant, May :2o, 1640, by sundry individuals, Fra. Williams, Gov., Ambrose Gibbon, Assistant, cum multis aliis, of a certain piece of land, to build a chapel upon (not the land in dispute), and money. The grant was made to Tho. Walford and Henry Sherburne, church-wardens, in perpetuity, for the use of the parish ; the church-wardens and others to have the superin- tendence thereof; not to be alienated without the assent of all the parishioners. Church built. Richard Gibson, minister or incumbent. Right of presentation to be in the parish- ioners, (a) In 1732, it is admitted, St. John's Church was erected, (6) — then called Queen's Chapel, — the old chapel was in another place. June 3, 1754, Theo. Atkinson (afterwards Chief Justice and Secretary and Councillor), conveyed to Arthur Brown, rector of the church, to him and his successors, as feoffees in trust (present burial ground). 1746, John Bartland devised the reversion of certain lands to the poor of the church in Portsmouth. 1768, indenture, between Hall Jackson and the wardens of the church, of lands (not premises), for twelve years. Records of the church go back as far as 1740, and show that they have acted as a corporate body, made taxes, issued war- rants in the forms used by selectmen. The greatest legal («) Aug. 15, 1745, division was made between H. Sherburne and Jotham Odiorne, feoffees in trust, and two other wardens and the First Congregational Society, of these lands. As to this transaction in 1010, see 1 Holmes, American Annals, 316, and n. 2 [also I Provincial Papers. 111-113]. (b) This was the first Episcopal church built in New Hampshire. 2 Holmes, American Annals, 131. [See 4 Provincial Papers, 650, n. 1.] Note. Episcopacy seems to have slept in this State from 1640 to 1730. The union with Massachusetts would naturally tend to discourage the growth of Episcopacy. SEPTEMBER TERM, 1807. 185 Brown v. Langdon. characters in the State have been concerned in these trans- actions, (a) Recognition of the church as a body politic. 1786, legislature, by act, enabled the church to collect taxes by sale of pews, March 2, 1786. Province Law, 177, speaks of church-wardens, and gives them the power of selectmen : this act passed 1754. Additional act, passed in 1758, to same effect. There was then no other Episcopal parish, except in Ports- mouth, in the province, nor any wardens chosen by any other parish. The other parishes in Portsmouth have acted in the same [manner]. Dr. Buckminster's was not incorporated by any act now appearing, till June 15, 1791. The South Parish was not incorporated, and yet actions have been maintained against them (6) before the Revolution ; which shows they were con- sidered as a corporate body. In Anthology, November, 1806, 632, it appears that religious parishes or societies in New England have always acted as corporate bodies. There was probably some general or special law, which can- not now be produced (1 Blackst. 471), giving these parishes the powers of corporate bodies. This is the evidence, and these are the authorities and ob- servations of the counsel, to satisfy the jury that Queen's Chapel was a corporate body in 1765. I have not had an opportunity to examine the evidence critically, nor to weigh and consider attentively the authorities and the observations of the counsel, and, therefore, decline giving any decisive (c) opinion on either. If the jury find that plaintiffs were a corporate (a) May 3, 1721, John Pickering conveyed to the minister and people of the old meeting-house in Portsmouth, those who do attend and their successors, land on which to build a church. June 16, 1731, same lauds confirmed by the same description of grantees by Thomas Pickering. (h) Stilson v. Proprietors and Parishioners of the South Church in Ports- mouth, for disturbing plaintiff in tne use and enjoyment of his pew. Sup. Court, 1769. Verdict for plaintiff; damages forty shillings. (c) The Chief Justice expressed doubts as to the propriety of letting iu this kind of evidence to prove the incorporation. 186 ROCKINGHAM. Brown v. Langdon. body, by the name of Queen's Chapel, or the Church of Eng- land in Portsmouth, in 1765, then the title of plaintiffs is, in the opinion of the Court, good and sufficient in law. If not, verdict must be for defendants. But, as has been already intimated, plaintiffs must not only have a good title, but they must prove a seisin within thirty years next before March 1, 1805. As to this point, (a) it is not thought necessary to state the evidence in this report ; nor is it necessary to state the title of the defendants (it was by release from the heirs at law of Henry Sherburne, the first devisor, one half ; and the other moiety from Samuel Sherburne, the residuary devisee of Samuel Sherburne, to Woodbury Langdon, Aug. 11, 1779). Note. Members of the church were admitted as witnesses, though objected to by defendants. Jury did not agree. Cause continued. At September Term, 1807, dismissed, parties having com- promised ; defendants having paid the church part of the value of the lands sued for, ut audivi. 1 (a) Brown died in 1773. There did not seem to be much evidence of any actual possession by the church, or their lessees, after that time. But the title of defendants did not accrue till 1779; and those under whom they claimed did not appear to have denied the plaintiffs' title, but in many instances to have recognized it, and in some instances after 1776. It was not distinctly stated in the testimony when Woodbury Langdon entered. In 1736, Rev. A. Brown was ordained minister of that church, with a salary from the Society for Propagating the Gospel. 2 Holmes, American Annals, 134. 1 I. A bequest to "the Church or Congregational Society in Green- land," may be construed as a gift to the Congregational Society in Green- land; it being shown that there was a legal corporate body of that name, and there being no corporation or association bearing the name of The Church in Greenland. Congregational Society v. Hatch, 1869, 48 N. II. 393. II. As to proof of incorporation, see New Boston v. Dunbarton, 1841, 12 N. H. 409; s. c. 1844, 15 N. II. 201; Bow v. Allenstown, 1857, 34 N. H. 351. NOVEMBER TERM, 1807. 187 Lewis v. Clagett. HILLSBOROUGH, NOVEMBER TERM, 1807. Asa Lewis and Jesse Abbot v. George Clagett. Replevin for "ninety-two cribs of pine boards." Defendant avowed taking the boards. Description held good, after verdict. In replevin, defendant avowed attaching the goods as the property of a stranger, " whose property they were." Plaintiffs pleaded, property of plaintiffs and not of stranger. Defendant replied, property of stranger. Issue on stranger's property, found for plaintiffs. Held, sufficient to warrant judgment for plain- tiffs, although the declaration did not, except by reference to the writ, allege property of plaintiffs. Writ of replevin dated Aug. 4. Defendant avowed taking on Aug. 5. After verdict for plaintiffs, held, that mistaken date in avowry was not ground for arresting judgment. This was replevin, for taking and impounding at Derryfield, Aug. 4, 1806, ninety-two cribs of pine boards, value $184. Writ dated Aug. 4, 1806 ; served Aug. 5, 1806. Avowry : Jona. Greeley by writ attached the boards (de- fendant, deputy sheriff, made the attachment) as the property of one Samuel Stevens, whose property they were; this. at- tachment made Aug. 5, 1806. Plea : the property of plaintiffs, and not the property of Stevens ; and prays return. Replication : the property of Stevens. Issue. At the last Term the jury found a verdict for plaintiffs, damages $1. Motion in arrest of judgment. Jamieson, for plaintiff. Webster, for defendants. At this Term, Smith, C. J., delivered the opinion of the Court. 1. [First objection.] The property not sufficiently de- scribed. 188 HILLSBOROUGH. Lewis v. Clagett. It is clear the property must be described with certainty to a general intent. 6 G. Bacon, 71 ; Lawes, 57 ; Butler, 53. This perhaps ill on special demurrer, but it is sufficient after verdict. Defendant has avowed taking the boards. This cures the defect in the description. 2 Sellon, 254 ; 2 Lil. 353. (a) 2. [Second objection.] There cannot be judgment for plaintiffs on this verdict, because it does not find, as it ought, that the boards were the property of the plaintiffs, but only that they were not the property of Samuel Stevens. Answer. This is well enough. The defendant justifies the taking as the property of Samuel Stevens. He does not plead property in a stranger, and traverse the plaintiffs' property, as in 2 Lil. 358. The only question raised by the defendant's plea or avowry is as to the property of Samuel Stevens, and defendant's lawful taking as such. Plaintiffs deny the prop- erty of Samuel Stevens, and on this the parties are at issue. Defendant, by his mode of pleading, admits that, if the prop- erty be not in Samuel Stevens, he had no right to intermed- dle. Defendant might have denied plaintiffs' property, and put his defence solely on that ground ; but he has not so done. The finding of the jury is correct ; they have found the matter in issue. And the pleadings are right. If they are not, they are such as the defendant chose to make them ; and he cannot complain if the plaintiffs do not prove what they have not been called on to prove. (6) 3. [Third objection.] Defendant avows taking on the 5th August. The writ is dated the 4th. Answer. The plea may doubtless be amended at defend- ant's request. But certainly it is not competent for defendant to insist on the badness of his avowry in arrest of judgment. A party shall not take advantage of his own errors in pleading. Tidd, 828. (a) See all the learning on this subject. 3 Selw. 1024; 2 Saund. 74 6, n. 1. (6) If property in Stevens had been pleaded in abatement (as it might have been), this, if found against him, would, it seems, warrant a judg- ment in favor of plaintiff; the question of the plaintiff's property could not have been tried. Lawes, PI. 38. NOVEMBER TERM, 1807. 189 Lewis v. Clagett. 4. [Fourth objection.] The declaration in replevin does not allege property in the plaintiffs. The writ and declaration ought to allege that the goods taken were the property of plaintiffs. F. N. B. 156 ; 2 Lil. 347, 348. Answer. The declaration may refer to the writ of replevin. 2 Lil. 353. (a) But it is a sufficient answer to say that this, though bad on demurrer, is good after verdict. Qualified property is sufficient for plaintiffs. 3 Wooddes. 230. In this case the pleadings put plaintiffs' property out of the case. It is admitted by the form of pleading that judgment must be against the defendant, if the property be not in Samuel Stevens. Judgment for plaintiffs. 1 («) It is conceived this does so ; it is admitted to be so by defendant's counsel. 1 I. The following descriptions in replevin have been held sufficient : — "Six oxen." Farwell v. Fox, 1869, 18 Mich. 166. "One white shoat, of the value of $14." Onstatt v. Ream, 1868, 30 Ind. 259. " A box of skins and furs, marked J. Windoes, Logansport, Indiana." Minchrod v. Windoes, 1868, 29 Ind. 288. " The goods and chattels fol- lowing, viz.: the contents of a grocery store, so called," describing the store, and naming the person by whom the goods are " now taken and held." Litchman v. Potter, 1874, 116 Mass. 371. All the " goods, stock, and fixtures in store at Johnston, at a place called Dry Brook, occupied by said L.. of the value of $800, and books of account and evidence of indebtedness, showing indebtedness of persons to said Leach, of the value of $50." Waldron v. Leach, 1870, 9 R. I. 588. " A certain store- house — warehouse — and the goods therein contained, being the store in Council Bluffs, in said State and County, and known and designated as the store of your petitioner." Ellsworth v. Henshall, 1854, 4 Greene, 417. Whether "fifteen hundred pounds of seed cotton" is a sufficient de- scription, qucere. Hill /. Robinson, 1855, 16 Ark. 90. " A quantity of corn (consisting of about two hundred bushels), and a quantity of rye (consisting of about one hundred bushels)," held insuffi- cient on demurrer. Stevens v. Osman,' 1848, 1 Mich. 92. " Plaintiff's goods and chattels, which the defendant took and unjustly detains," held bad, and writ quashed after appearance entered. Snedeker v. Quick, 1829, 6 Halst. (N. J.) 179. Declaration, that defendant, in a "certain dwelling-house, took divers goods and chattels of the plaintiff." Final judgment arrested, after 190 HILLSBOROUGH. Lewis v. Clagett. default, and writ of inquiry executed. Pope v. Tillman, 1817, 7 Taunt. 642. In De Witt v. Morris, 1835, 13 Wend. 496, Nelson, J., said that the sheriff should refuse to execute a writ of replevin for " goods and chat- tels, to wit, about four hundred tons of iron ore, commonly called bog ore." An insufficient description may be held good after avowry, or after the defendant has interposed "a claim property bond," and kept the goods. Banks v. Angell, 1838, 7 Ad. & E. 843; Warner v. Aughenbaugh, 1826, 15 Serg. & R. 9 ; Ruch v. Morris, 1857, 28 Pa. St. 245. After trial and verdict for defendant, plaintiff cannot object that the property is not described with sufficient certainty in his own declaration. Wilson v. Gray, 1839, 8 Watts, 25. See further, as to sufficiency of description, Bronson, J., in Root v. Woodruff, 1814, 6 Hill, 418, 423, 424; and old authorities cited in Mr. McMurtrie's argument, 28 Pa. St. 247. As to the sufficiency of a description in detinue, see Brown v. Ellison, 1875, 55 N. H. 556. 11. According to the views expressed by Bell, J., in Dickinson v. Lovell, 1857, 35 N. H. 9, 19, 20, the pleadings ought to have been so framed as to have resulted in an issue on the plaintiff's property. And if such had been the issue, a verdict that the goods were not the property of S. S. would have been bad, because it did not find the issue submitted. Bemus v. Beekman, 1829, 3 Wend. 667. But, because the plaintiff might have successfully demurred to the issue tendered by the defendant, it does not necessarily follow that the plaintiff, after prevailing on the issue thus tendered, cannot have judgment; nor is this point decided in any of the cases cited by Judge Bell, on pp. 19 and 20, in Dickinson v. Lovell. The view of the Court in Lewis v. Clagett, as to the admission to be im- plied from the defendant's pleadings, seems sustained by the follow 5 ng language of Wilde, C. J., in Couling v. Coxe, 1848, 6 M. G. & S. 703, 721: "... A plea traversing an allegation in a declaration, although not, for all purposes nor in all events, an admission of the material allega- tions in the declaration which it does not traverse, yet may be considered as a conditional admission, that is, as admitting the allegation not traversed, in case the plaintiff can prove the allegation traversed; and it is certainly so treated in the case in which, on a single plea traversing a part of the declaration, where an issue is found for the plaintiff, the plaintiff has judgment — which he would not be entitled to, unless the Court con- sidered the material allegations which were not traversed, as being ad- mitted." Upon these principles, it might be said that the defendant, by his form of pleading, admitted the property to be in the plaintiffs, in case the jury should find that it was not in Stevens; and that the subsequent verdict FEBRUARY TERM, 1808. 191 Currier v. Basset. ROCKINGHAM, FEBRUARY TERM, 1808. Dudley Currier v. John Basset et al. Towns may agree on divisional lines, as far as respects jurisdiction. The towns of A. and S., to settle a disputed line between them, submitted the matter to arbitration, and afterwards ratified the doings of the arbitrators. According to the line thus established, the residence of C. would be in A. Subsequently, C. sued the selectmen of A. for illegally assessing him, and offered to show that the true charter line differed from the agreed line, and that, by the true line, his residence would be in S. Held, that this evidence could not be received, the establishment of the agreed line being conclusive. This was trespass for an illegal assessment, made by defend- ants as selectmen of Atkinson, Jan. 1, 1803. Defendants justified as selectmen and assessors ; the plaintiff an inhabitant of Atkinson, and lawfully assessed as such. Replication traverses plaintiff being an inhabitant of Atkin- son. Rejoinder takes issue on the traverse. (that the property was not in Stevens) made this conditional admission absolute. A repleader, for the immateriality of the issue, -will not be granted on the motion of that party who committed the first substantial fault in pleading which occasioned the immaterial issue, and who himself tendered the issue. Here it would seem that the defendant is that party. " And therefore, if the verdict is against him, judgment must also regularly go against him. For, as the fault in the issue commenced on his part, — his traverse being bad in law ; and it being, moreover, found to be false in fact; it is deemed unreasonable to grant him the indulgence of a repleader." Gould, PI. c. 10, § 32. If, upon the other hand, the plaintiffs are regarded as committing the first substantial fault in pleading, still the issue was so framed that a ver- dict upon it in favor of the defendant would have been decisive of the merits of the cause. Under the statute 32 H. VIII. c. 30, perhaps such an issue is " aided by a verdict either way." See Gould, PI. c. 10, § 31. 192 ROCKINGHAM. Currier v. Basset. This action was tried at September Term, 1806 ; when a verdict was taken for defendant, subject to the opinion of the Court, whether the evidence adduced and used on the trial, on the part of the defendants, to prove that plaintiff was, at the time, an inhabitant of Atkinson, was conclusive evidence of the fact, so as to preclude the evidence offered by plaintiff. It appeared in evidence that Atkinson contained the westerly part of a township granted and incorporated in 1749— 1750, by the name of Plastow ; and that Salem bounds on Atkinson west line. By the charter it appears that the bound on the State line is a monument near Captain's Pond, so called, and on the northerly side a black oak, south-east corner of Londonderry ; and the course, by the charter, from the oak is south 25° east. The monument in the State line is agreed on, and the place of the oak mentioned in the charter is dis- puted. To settle this line, the towns of Atkinson and Salem agreed to submit the matter to arbitration ; and, on Nov. 20, 1799, the arbitrators made an award, " that the twin oak tree with the stones about it is the south-east corner bound of London- derry, and is a bound between Atkinson and Salem ; but, in case, on some future perambulation, the said twin oak tree should not be considered as the south-east corner bound of Londonderry, agreeably to their present charter, then the bounds between the said towns of Atkinson and Salem shall be altered agreeably to the bounds which may be established between the towns of Londonderry and Atkinson ; but, until such alteration is made and agreed to, the said twin oak shall be considered as the bound between said towns of Atkinson and Salem; and the bound near the Captain's Pond shall be twenty- five rods westerly, as the State line runs, from the stake and stones on B. Emery's land, shown us by committee of Salem ; and that a straight line from the twin oak to the bound affixed by us shall be considered as the dividing line between said towns of Atkinson and Salem, until some alteration shall be made, as aforementioned, in the south-east corner bound of London- derry, when a straight line from the bound which may here- after be established according to their present charter to the FEBRUARY TERM, 1808. 193 Currier v. Basset. bound affixed by us near the Captain's Pond shall be the divisional line between said towns. Each of these towns, — Atkinson and Salem, — at a legal meeting, has ratified, accepted, and confirmed the doings of the arbitrators. By this line, plaintiff lives in Atkinson, and the tax is legal. There has been no agreement between Londonderry and Atkinson as to altering the corner (the twin oak), nor any act of Londonderry, showing that the twin oak is not the cor- ner, — no other place established as south-east corner. But the plaintiff contended that the twin oak could now be shown in evidence not to be the true south-east corner of Londonderry by their charter. The plaintiff contends that the black oak mentioned in the charter is sixty rods westerly of the twin oak established by the arbitrators ; and, if this be so, it is agreed, a line running to the State line, the course mentioned in the charter, will leave Currier in Salem. There is, in this place, about twelve rods between the two lines. Plastow was granted before Salem, and Londonderry before Plastow. It does not appear that Salem has, as a town, done any thing in this matter since acceptance of the award. The plaintiff now offered evidence to prove that the black oak mentioned in the charter of Londonderry was sixty rods westerly of the twin oak established by the award. This evi- dence was rejected by the Court ; and the single question now, for the opinion of the Court, is, whether that decision was correct. Betton and Mason, for plaintiff. Varnum, for defendants (and, as it is believed, Sullivan}. The opinion of the Court was now delivered by Smith, C. J. After stating the case and the question, he observed that the Court had no doubt as to the right of towns to agree on divisional lines, as far as respected jurisdiction. A perambula- tion is the renewing of old bounds ; but there may be instances 13 194 ROCKINGHAM. Currier v. Basset. where no old line can be traced ; in such case, the selectmen doubtless may make marks. But this is something more. In case of dispute between corporations respecting lines of jurisdiction, they may settle such disputes ; otherwise they must live for ever in a broil. A court of law cannot establish the line, but only declare, in particular cases, where it is. The legislature can, no doubt, alter and establish such lines at their pleasure ; («) such has been the practice. And this is an answer to the hardship com- plained of in this case, that an individual may, in this way, be unjustly removed from one corporation and made subject to another. He may appeal to the legislature. There is no reason to apprehend that one town will surren- der a portion of its territory and jurisdiction to another. No alteration can be made without the consent of the majority of both corporations. Certainly towns possess many powers more liable to abuse than that of settling disputes about lines. Indeed, it is generally of far more consequence that such dis- putes be settled than how they are settled. In the present case, Atkinson and Salem have, by the inter- vention of arbitrators, established a line between them. But it is said this was only for a time. It is sufficient, if it was established when the present assessment was made. According to any fair construction of the award, it is now binding. The twin oak is a bound between Atkinson and Salem. It is said that, in case, on some future perambula- tion, the twin oak should not be considered as the south-east corner bound of Londonderry, then the Hue now established shall be altered, and made conformable to the bound established between Londonderry and Atkinson. Before the line estab- lished by the award ceases to be the divisional line, the twin oak must cease to be considered as the south-east corner of Londonderry. It must cease to be considered as the true cor- ner by Londonderry ; by Londonderry and Atkinson ; or by Londonderry, Atkinson, and Salem. It does not appear that it has ceased to be considered as the true corner by any per- (a) N. H. Laws, ed. 1797, 178-180; ed. 1805, 195, 204. FEBRUARY TERM, 1808. 195 Currier v. Basset. son, except Currier, the plaintiff. The true meaning of the award seems to be this — that if, on a perambulation by Atkinson and Salem, they should agree on a corner other than the twin oak, or in case Atkinson and Londonderry should agree on another corner, and establish it, then the line now established is to be altered accordingly. If the defendants had recognized any other line than that established in 1799 as the dividing line between Atkinson and Salem, they would have wilfully erred. The selectmen are bound to regard the line established by the towns, — the line which has been considered in fact as the true line, though never established. It may well be doubted whether, in case no line had been established, but there were proof that, for more than twenty years, each town had ever used jurisdiction to a certain line, any evidence ought to be admitted, in an action of this sort, to show where the line actually is. This case is stronger than that. Here the towns have established a line. Till that is altered, the towns, and every individual in each, are bound by it. If either town, or any individual, is dissatisfied, they must apply to the legislature. The evidence given by defendants is conclusive evidence of the line, till altered by the legislature or in the way pointed out in the award. It has not been altered in any way, and therefore the evidence offered by plaintiff was properly re- jected. Judgment for defendants. 1 1 Proprietors of adjoining townships were competent to settle the boundary line between them. Richardson, C. J., in Proprietors of Enfield v. Day, 1835, 7 N. H. 457, 467, 468. As to power of selectmen to agree, in case of a disputed line, see Richardson, C. J., Gorrill v. Whiltier, 1825, 3 N. H. 265, 267, 268; Gilchrist, J., in Bailey v. Rolfe, 1844, 16 N. H. 247, 251, 252; Henniker v. Hopkinton, 1816, 18 N. H. 98, 101; SaWYEU, J., in Pitman v. Albany, 1857, 34 N. H. 577, 580, 581; Gushing, C. J., in Greenville v. Mason, 1876, 57 N. H. 385, 392. By statute of Dec. 23, 1820, provision is made for the settlement of the line by a court, in case of disagreement of the selectmen; the judgment of the court to be " of the same force and effect as would have been the agreement of the selectmen." Laws of 1820, c. 85; Gorrill v. Whittier, 196 ROCKINGHAM. Currier v. Basset. L825, 3 N. II. 265; Lawrence v. Haynes, 1829,5 N. H. 33. In the Revised Statutes of 1842, it was enacted that the decision of the court should be final. Rev. Stat. c. 37, § 6; Gen. Laws, c. 51, § 6. A judgment under this statute is conclusive upon the parties in a suit against one of the towns, pending when the judgment was rendered. Pitman v. Albany, 1857, :il N. II. -Y77. The jurisdiction of the court to settle disputed lines is not confined to cases where lines have been previously run and marked. Chatham'* Petition, 1846, 18 N. II. 227. As to matters of practice under the statute, see Boscawen v. Canterbury, 1851, 23 N. II. 188; 25 X. H. 225. Perambulations by selectmen are evidence in suits between individuals, whose lots are bounded by the town lines. Lawrence v. JIaynes, 1829, 5 N. H. 33; Adams v. Stanyan, 1852, 24 N. H. 405 (but see Bailey v. Rolfe, 1814, 10 X. H. 217). They are not conclusive. Sawyer, J., in Pitman v. Albany, ubi sup. 581; and see Greenville v. Mason, ubi sup. If a line has been treated, for more than fifty years, as the correct one between the towns, it must be regarded as the true jurisdictional line, notwithstanding it differs from the calls of the charter: Hanson v. Russell, 1853, 28 X. II. Ill ; but a jurisdictional line thus established does not necessarily control the rights of private property : Eastman, J., in Hanson v. Russell, 117. (See Wells v. Jackson Iron Co., 1809, 48 N. H. 491, 538.) The fact that a certain part of a highway has for several years been treated by both the towns of A. and E. as being within the limits of E. is not conclusive evidence in favor of A., in a suit by an individual against that town, founded upon an alleged defect in that part of the highway. Pitmany. Albany, 1854, 29 N. H. 575. But if a town has exercised exclusive jurisdiction over a particular tract of land during the residence of an alleged pauper upon it, such town cannot afterwards be permitted to allege, in a settlement case, that the place of the pauper's residence was, in fact, in another town. Plastow v. Kingstown, reported post; Norlhwoodv. Durham, 1820, 2 N. H. 242. As to correction by the legislature of a mistake in the charter bounda- ries, see Proprietors of Enfield v. Permit, 1830, 5 N. H. 280; s. c. 1837, 8 N. H. 512 (and see Proprietors of Enfield v. Day, 1835, 7 N. H. 457). FEBRUARY TERM, 1808. 197 Reynolds v. Libbey. STRAFFORD, FEBRUARY TERM, 1808. Daniel Reynolds v. Benjamin Libbey, et e contra. R. sued L. on a promissory note. L. pleaded tender of debt and costs, after suit commenced, to R.'s attorney. Replication, that L., after the commencement of R.'s suit, and before the tender, had sued R. in assumpsit, and that R. in- tended, after that suit commenced, to have set off this note against that suit. Held, that the replication was bad; and that, under the statute of Dec. 13, 1796, the tender discharged the note, so that it could not be pleaded in offset to L.'s suit. Assumpsit on promissory note, made by defendant to plain- tiff, for 8100, date Feb. 20, 1806, payable in six months, with interest. Indorsed, Sept. 17, 1806, $20 ; Oct. 20, 1806, $45. Writ : date Oct. 27, 1806 ; service Nov. 6, 1806. Defendant pleaded, that at C. C. P., Jan. 16, 1807, since commencement of this suit, defendant made application to J. H. W., plaintiff's attorney, who brought this action, and offered to pay and actually tendered to the said W. the full amount of the debt and lawful cost which had then arisen, viz. $39.53 for debt and $3.47 for costs ; which sums said W. refused to receive ; defendant ever since ready to pay plain- tiff and his attorney these sums, and now brings the same into court, ready to be paid to the plaintiff or his said attorney, if they will receive the same ; and this he is ready to verify ; wherefore he prays judgment, if the said Reynolds shall further have and maintain his action aforesaid against him. At February Term, 1807 (March 3), plaintiff replied, admitting the tender as stated, that, after commencement of plaintiff's suit and before the tender, viz. Nov. 7, 1806, defend- ant commenced a suit against the plaintiff, declaring in as- sumpsit on account annexed to the writ for $41.33 ; this writ was served Nov. 20, 1806, and entered at C. C. P. third Tues- day of January, 1807, and the action is now pending by 198 STRAFFORD. Reynolds v. Libbey. appeal in this court ; the said Benjamin Libbey, at the com- mencement of his said suit, being, and ever since remaining, justly indebted to the plaintiff in the full contents of said promissory note ; which said promissory note the plaintiff intended, after defendant commenced his suit as aforesaid, to set off against defendant's demand in his said suit, and has done so accordingly ; and this he is ready to verify, &c. Demurrer, and joinder. The other action, Libbey v. Reynolds, spoken of in the defendant's plea, came on to trial at February Term, 1807, when the jury did not agree. At September Term, verdict was for plaintiff, $23.23. The note mentioned in the action Reynolds v. Libbey was pleaded by way of set-off; but, on its being admitted by Reynolds's counsel that tender had been made, as stated in the plea in Reynolds v. Libbey, the Court expressed an opinion for the present, that the set-off could not be maintained, and recommended that it be withdrawn ; and motion was now made for a new trial in that action, and that the set-off may be admitted to go to the jury. \jJeremiah H. Woodman, for Reynolds. Joseph Tilton and iV. Emery, for Libbey.] The opinion of the Court in both actions was now delivered by Smith, C. J., after stating the pleadings and the latter case. Inasmuch as Reynolds's suit was first commenced, Libbey ought to have pleaded his demand by way of set-off; then the costs would have fallen on the debtor. This is on the presump- tion that there was no dispute respecting the justice of either demand. It seems there is none respecting Reynolds's de- mand. But, if Reynolds denied the justice of Libbey's demand, it is not unreasonable that Libbey should do any act in his power to make the costs of prosecuting it fall on Reynolds, if any thing should be recovered. But these are considera- tions which can in no way influence our judgment in the first action, nor, perhaps, in the second. FEBRUARY TERM, 1808. 199 Reynolds v. Libbey. By the replication it appears that the only objection to the tender is, that the plaintiff, Reynolds, is thereby deprived of an opportunity of pleading the demand which he had then sued by way of set-off to the suit Libbey had then commenced against him. Reynolds's demand having been sued, he was not, on that account, precluded from setting it off. Brown v. Baskerville, 2 Burr. 1229 ; 3 T. R. 186. As this matter of defence arises after action brought, it cannot be pleaded in bar of the action generally ; but only a bar to further proceed- ings. 4 East, 507 ; 3 T. R. 186 ; 1 Selvr. U8, n. ; Statutes, ed. 1805, 96. It is so pleaded in this case ; and the whole sum, the amount of the debt, is tendered. It seems, there- fore, clear that, by the statute 1 which authorizes this tender, it is good ; and the defendant, Libbey, must have judgment for his costs ; and plaintiff, Reynolds, may have the money tendered, and which has been brought into court. Reynolds's attorney should have accepted the money tendered, and Rey- nold' should not have entered his action, but might immedi- ate. y have tendered it to Libbey for his demand, or might have brought it into court. The only inconvenience attend- ing this course would be that Reynolds would be compelled to pay the cost which had accrued before the tender, or payment of money into court. If Libbey's demand were unjust, then there can be no well-founded objection to this tender ; because then no tender or offset would be necessary on Reynolds's part. 1 An act in addition to an act, entitled, "An Act regulating Process and Trials in Civil Causes." Whereas, in said act, there is no mode provided, after the service of a •writ, and before trial, whereby the defendant can oblige the plaintiff to settle his action, which tends greatly to increase the cost in civil causes. For remedy whereof, Be it enacted by the Senate and House of Representatives, in General Court convened, That, at any time before the sitting of any court, to which any writ shall be returnable, or at any time before judgment shall be rendered thereon, any defendant who shall make application to the plaintiff's attorney, who brought the action, and actually tender to him the amount of the debt and the lawful costs that may have arisen, such tender shall be a bar to any further process, any usage or custom to the contrary notwithstanding. Approved Dec. 13, 1796. Compare Gen. Laws, c. 2*27, § 1. 200 STRAFFORD. Reynolds v. Libbey. The statute respecting tenders to attorneys seems to have made no exception of demands where it would be better for the creditor not to have than to have his money. If the debtor will pay the whole demand, in all cases he may tender to the attorney. If Reynolds had not sued the note, but Libbey had first sued his account, Libbey, at common law, might have paid the note or tendered to the party the amount due. If Reynolds had afterwards sued, such tender would be a good bar. So, if Reynolds had pleaded it by way of set-off, the tender would have been a good bar to the set-off. The statute seems to have given precisely the same effect to a ten- der after suit commenced as before, and to attorney as well as to the party. On this suit, therefore, Libbey must have judg- ment for his costs; the replication being bad. The next question is, whether Reynolds is entitled to avail himself of the note, notwithstanding the tender, by way of set-off to Libbey's demand in the second suit. To entitle Reynolds to set off the note in this case against Libbey's account, it must be a debt due from Libbey to Rey- nolds at the time of set-off pleaded, and recoverable by suit at law ; it must also have been justly due and accruing to Reynolds at the time Libbey commenced his suit. Statutes, ed. 1805, 141. Now, when this set-off was pleaded, there was no debt due from Libbey to Reynolds ; the proceeding which had taken place, i. e. the tender to the attorney, by the statute, had barred any further process or proceeding. Laws, ed. 1805, 96. Reynolds could not lawfully proceed in the suit commenced ; he could not discontinue that and commence another action ; he could not avail himself of the demand in any other way. To plead it by way of set-off is process or proceeding on the note ; it is still considering it and treating it as a debt due him. Libbey had appropriated the money tendered to the payment of the note ; and, by entering the action on the note, Reynolds made it the duty of Libbey to bring the money into court and have it ready to bar the action or further proceeding in it. After having done this, Reynolds cannot treat all this as a nullity, and compel Libbey to pay FEBRUARY TERM, 1808. 201 Reynolds v. Libbey. the debt in another and different way. The money tendered has become the property of Reynolds at his election, Libbey has no longer any control over it. If he exercises any sueh control, he destroys the tender. Reynolds can take the money out of court, and tender it in Libbey's action, or bring it into court ; i. e., he may elect to receive it in the action on the note, and obtain a rule to have it considered as so much brought into court on Libbey's action against him. But this does not amount to that. Here he pleads the note as a set-off. From the case of Evans v. Prosser, 3 T. R. 186, it would seem that a tender by Libbey, after Reynolds had pleaded the note by way of set-off, would not do away with the set-off. And this is reasonable. Under the circumstances of this case, Reynolds suffered no injury by following the adviee of the Court in withdrawing his set-off. It would not have availed him if it had remained in the case. And, therefore, judgment must be entered on the verdict. 1 1 A suit having been brought upon a note, the defendant paid into court the amount of the debt and costs. The plaintiff took the money out of court, but declined accepting it in satisfaction of his claim, because he had tiled the note as a set-off in a suit which the defendant had brought against him. Held, that the note was paid, and that it could not be used as a set-off. Molineux v. Eastman, 1843, 14 N. H. 504. " To be a proper matter for offset, a claim must not only be due and actionable when the suit was commenced, but it must continue so to the time of the trial and verdict." If a note held by defendant against plaintiff at the date of plaintiff's writ, afterwards, during the pendency of plaintiff's action, passes into judgment, it ceases to be a proper matter of set-off. Andrews v. Varrell, 1865, 46 N. H. 17. A defendant cannot file the same matter in set-off in two separate actions pending against him at the same time. Chase v. Strain, 1844, 15 N. H. 535. Each item in an account is a separate claim; and hence filing all the items except one, in set-off, in a suit in which judgment was rendered upon the merits, does not prevent the creditor from prosecuting an action upon the item not filed. Bailey v. O'Connor, 1848, 1!) N. II. 202. But a judgment, being entire, cannot be divided, and a part filed in offset and the other left out. Sargent, J., in Andrews v. Varrell, ubi sup. 21; and see Chase v. Strain, ubi sup. 202 STRAFFORD. Frost v. Chesley. John Frost v. James Chesley and Joseph Chesley. An amendment of the declaration may be permitted on review. Assumpsit on a promissory note. The declaration de- scribed the note as dated July 23, 1804, for $64.34, payable on demand with interest. Plea : general issue. This cause was tried at September Term, 1806. Verdict for defendants. Review entered, February Term, 1807. The cause com- mitted to a jury. The note produced was for $64:M: The words "thirty- four cents " were crossed. Plaintiff said, intended to be for $64, only. Objection was made to the note being received in evidence. There was then a motion to amend. Before that was de- cided, the parties agreed to a reference. At September Term, 1807, the rule was discharged. And the Court (the Chief Justice not present) allowed the amendment. (N. B. It was stated, and the recollection of the Court was so, that exception was taken on account of the variance ;it the first trial, September Term, 1806, and leave given to amend. But it seems the amendment was not in fact made. The Chief Justice's minutes show that leave was given to amend.) At September Term, 1807, the jury did not agree. At the present Term, Smith, C. J., expressed his concur- rence with the order to amend made at the last Term. He said he was aware that the letter of the statute seemed to forbid any amendment. The words are, "such actions shall lie tried upon the pleas made upon the former trial upon record." And [he was also aware] that, in Massachusetts, it had been considered that the Court could not direct, •'. e. order, FEBRUARY TERM, 1808. 203 Frost v. Chesley. without consent, any alteration or amendment in the pleadings. 1 Mass. 160, 243. (a) But he conceived that the meaning was only that new pleadings should not be required ; that, as a mat- ter of course, the trial should be on the old pleadings. This phraseology was used to explain the old law, and to do away a very idle ceremony — pleading that the former judgment was in nothing erroneous. The old law, Prov. Law, p. 27, declared that each party should have the benefit of any new and further plea and evidence. In the new act, it was declared that either party, on the review, might use any new and fur- ther evidence, omitting the word plea ; and the action shall be tried on the former plea. It was not intended to take away or abridge the equitable and useful power of the Court to amend the proceedings in every stage of the cause ; there are no words necessarily requiring this construction. Indeed [?] the Court will not suffer the pleadings to be changed as a matter of course, or without taking care that the other party suffer no real inconvenience thereby. (6) The cause was now tried; and verdict for plaintiff , $77.76. [Judge Smith's Note to a Previous Decision, 6 Manuscript Reports, 296.] If it were necessary, it is conceived that defendant might amend or plead anew by leave of court, though on review. The Statute, ed. 1805, 90, says the action shall be tried upon the pleas made on the former trial upon record. The design of this clause was to take away the senseless practice of plead- ing to the writ of review, which formerly prevailed. The old law said the party reviewing should have the benefit of any new and further plea and evidence. This meant argu- ment and proof. It was not intended to touch or trench on the power of courts to permit amendments in every stage of a cause, — a very useful and necessary power, which existed at (a) Mass. Act, I. 171. There shall be no further pleadings ; but the action shall be tried upon the review by the issue appearing upon the record to have been originally joined by the parties. (b) If this amendment take place, the cause will be still " tried upon the plea made upon the former trial on record." 204 STRAFFORD. Frost v. Chesley. common law. The Court may, and doubtless will, in such cases, as in all others, grant leave on such terms as shall work no hardship or injustice. See 1 Mass. 159, 242, contra. 1 1 The statute of Dec. 16, 1824, enacts, " that in any action of review, pendiDg in any court in this State, the justices thereof shall have power to order any amendment of the original writ, record, or proceedings in any part thereof." See Gen. Laws, c. 234, § 6. In Edgerly v. Emerson, 1827, 4 N. H. 147, 148, the Court recognized the practice which existed before this statute, of allowing " amendment of the forms of the proceedings." Since the statute of 1824, it has been held, that the original defendant, when plaintiff in review, cannot plead, in bar of the original cause of action, matter arising subsequently to the original judgment: Burley v. Burley, 1833, 6 N. H. 204; Zollar v. Janvrin, 1869, 49 N. II. 114; nor can such matter be pleaded by a defendant in review, by way of bar to the writ of review: Otis v. Currier, 1845, 17 N. II. 463. But the defendant may, under the general issue originally filed in the case, prove an act voluntarily done by the plaintiff since the original judgment, which is of such a nature as to avoid the plaintiff's action from the beginning: Barker v. Wendell, 1841, 12 N. H. 119; and " a defendant in review may perhaps plead a release of the right of review : " Richardson, C. J., in Burley v. Burley, 1833, 6 N. H. 204, 205. The Court may, in its discretion, refuse, upon review, to allow a demurrer to the original declaration. Colebrook v. Merrill, 1870, 49 N. H. 213. Amendments changing the form or cause of action are not allowable on review; either before the statute of 1824: Edgerly v. Emerson, ubi supra ; or since that statute: Pearson v. Smith, 1873, 54 N. H. 65. In Edgerly v. Emerson, it was held that a set-off could not be filed on review. A writ of review may be amended. Tilton v. Parker, 1827, 4 N. II. 142. APRIL TERM, 1808. 205 Flanders v. Herbert. HILLSBOROUGH, APRIL TERM, 1808. Jacob Flanders v. Richard Herbert and John H. Morison. An officer cannot justify under a writ of attachment in which no declaration is inserted. Such a paper is not a writ. This was an action of trespass, for assaulting and beating the plaintiff, February, 1806, at Concord, and imprisoning him ten hours, &c. Herbert justified under a writ of attachment issued by Samuel Green, a justice of the peace, at the suit of T. W. T., treasurer of the Fourth New Hampshire Turnpike, by virtue of which, as constable of C, he arrested and detained him in custody, till released by the attorney for the plaintiff in that suit. The plaintiff replied, de injurid sud proprid et absque tali causd, on which issue was joined. Morison justified under Herbert, and there was a similar replication and issue. On the trial, at April Term, 1807, it appeared in evidence, that, on Feb. 4, 1806, application was made to an attorney to commence an action, in the name of the treasurer of the Fourth New Hampshire Turnpike Road, against the plaintiff, for turning out of the turnpike road, with his team, to pass the turnpike gate, in Salisbury, on ground adjacent, which was not a public highway, with intent to avoid the payment of the toll, — to recover three times the legal toll (Act Dec. 8, 1800, 574). Flanders was then, as it was apprehended, going out of the State ; and the application was made immediately after the passing of the gate, that he might be apprehended before he got out of the State. The attorney, not being able to draw 2r pervert his judgment, and therefore will not trust him. Hut interest is not the only thing that warps the judgment. Kindred often creates a strong bias on the mind. Having been counsel or arbitrator for a party has often the same undue influence. So, having tried the cause before, in a lower court, by our statute, expressly disables a judge from trying it in a superior court to which he may be removed: N. H. Laws, ed. 1805, 91, 95; and yet the judg- ment appealed from is, as it were, annihilated by the appeal. So, having tried the cause before as a juror, having declared an opinion, having prejudices in relation to the question to be tried, or prejudices in favor of or against either of the parties. We know that affection will blind the eyes ; it will warp the judgment ; a prejudiced man of strong mind and honest heart will sometimes find it difficult to hold the balance of evidence perfectly even ; and an honest, but weak, man may be so biussed as to think he is governed by his evidence, when in truth he is governed by his feelings and his prejudices. 3 G. Hacon, 756. All these are causes of challenge. Those are said to be principal causes of challenge which carry with them prima facie evidence, marks of suspicion, either of malice or favor. Trials per Pais, 132. Interest, kindred, having taken money for his verdict, &c, are of this description. If the fact be proved, it is the duty of the Court to set the juror aside. The law presumes the bias. The Court has no discretion to exercise, but barely to judge of the evidence of the fact. But, where the objection is only some probable circumstance of suspicion, such as great inti- macy and the like, this is said to be challenge only to the favor. And in England, and in some of the States in our Union, this challenge is tried by triors; and, respecting these challenges, there do not seem to be any fixed rules. That such exceptions should be received and tried demonstrates the anxiety of the law that jurors should be omni exceptione majores. In this State, I apprehend, we never have adopted the dis- MAY TERM, 1808. 229 Temple v. Sumner. tinction between principal challenges and challenges to the favor. All challenges are tried by the Court ; * and, if it appears to the Court, judging on the broadest ground, that the juror does not stand indifferent in the cause, he is set aside. Stat. ed. 1805, 108. In England, the distinction seems to have arisen from the circumstance that the writ to the sheriff to summon the jury- laid down certain rules for his government; such as that the persons summoned should be free and lawful men of the county, of certain qualifications in point of property, by whom the truth of the matter might be the better known, and who are in no wise of kin to either party. This writ was supposed to specify all causes of objection from partiality or incapacity. The word " free " was understood to mean, not only one having freehold lands, but freedom of mind, — one who stands indifferent, no more inclining to the one side than the other. If the person returned by the sheriff mani- festly did not come within the intent of the writ, this was a principal challenge ; and the Court, on being ascertained of the fact, declared the juror incompetent. But experience soon showed that there might be other circumstances which induced a suspicion of partiality, though no express malice or favor. Here the Court referred it to certain persons to judge, in their discretion and conscience, whether the juror was indifferent as he stood unsworn. 3 G. Bacon, 751, 756 ; Tidd, Prac. Forms, 199 ; Gilb. C. P. 95, &c. ; Co. Litt. 156 b ; Trials per Pais, 148. Perhaps our courts would feel themselves bound to exclude the juror on satisfactory evidence as to the truth of the fact, in the case of a principal challenge ; but, where the challenge is of the kind called challenge to the favor, they would exer- cise the same wide range of discretion the triors do in Eng- land. Co. Litt. 257 b ; 3 G. Bacon, 748. In some books we find it laid down that, if the juror hath declared his opinion touching the matter, it is a principal » RoUinsy. Ames, 1821, 2 N. H. 349; State v. Pike, 1870, 49 N. H. 399, 406, 407. 230 CHESHIRE. Temple v. Sumner. cause of challenge. In others, where the principal challenges arc professed to be enumerated, we find this omitted. 3 G. Bacon, 756 ; 2 Tidd, 780 ; Trials per Pais, 141 ; Trial of Fries, 2d appendix, 42. But neither of these quote any authority. In one place it is said, if a juror declare the right of one party, or give his verdict beforehand, it is a principal challenge ; but, if lie promise a party, this is a challenge to the favor only. Lord Coke (Co. Litt. 157 6) and Blackstone mention, as principal challenges, having given a verdict, but not opinion. See also Fries's Trial, 2d appendix, 19, 31, and the hooks referred to. The truth is, that having previously declared an opinion may afford evidence, more or less strong according to the circumstances, of suspicion of bias or partiality. If a man had heard a cause, and should merely express an opinion in favor of one party, it would afford but slight evidence of bias or partiality. 1 It is laid down in Trials per Pais, 141, that, if a juror say he will pass for one party because he knows the verity of the matter, this is no chal- lenge ; but, if it appear from the circumstances to be from favor and not from knowledge, it is a good challenge. Ex- pressions of this sort are supposed to indicate malice, or at hast prejudice, if used by a person after returned as a juror. "The defendant is guilty, he shall be hanged:" 5 St. Tr. 8vo, 125 ; N. H. Laws, ed. 1797, 110 ; or, as in the case of Fries, u I am not safe . at home for the insurgents ; they ought all to be hung, and particularly Fries : " 3 Dall. 517 ; or these words, " There will be no safety in the country till the defendant is either hanged or banished : " Law, C. P. 133. 7 Mod. 57, cited in Bacon, Trial, overruled on authority of 2 Hawk. P. C. 589. This was on motion for new trial. Curran's Speeches, Rowan's Trial, 60. In 2 Hawk. P. C. b. 2, c. 43, § 28, p. 589, it is said to be a good cause of challenge that the juror hath declared his opinion beforehand that the party is guilty, or will be hanged, or the like. 5 St. Tr. 8vo, 124. But, if it shall appear that the juror made such declarations from his knowledge of the cause, and not from any ill-will to the i See State v. Pike, 1870, 49 N. H. 399, 407. MAY TERM, 1808. 231 Temple v. Sumner. party, it is no cause of challenge. Knowledge is no proof of malice, and knowledge of the particular cause no exception to a juror ; certainly it was none in ancient times. The cir- cumstances attending the transaction must determine whether the juror is indifferent or not. 5 St. Tr. 8vo, 125. Our statute mentions this as a cause of challenge, ed. 1805, p. 108. Indeed, it allows the party to ask the juror if he is sensible of any prejudice in the cause. His prejudices may be proved, and every thing which goes to show that he does not stand indifferent. Cases may easily be supposed where it would be extremely inconvenient to lay it down as a rule, that the mere declaration of an opinion, especially a general opinion, should disqualify a juror. Trial of Fries, 208, Judge Peters, 2d appendix, 42. Yet, in general, it is better that this exception should prevail as a cause of challenge. There are few men who would choose to have their causes tried by men who had expressed an opinion against them, and fewer still who would not choose to have their adversary's cause tried by just sueh men. Perhaps there are few men who are not influenced by their own previous opinions, especially when they have pub- licly declared them. There is in the human mind a certain obstinacy, which leads men to adhere to opinions once formed. When opinions have been declared, the case is stronger. Our pride is then engaged on that side. Stronger still when the juror has been arbitrator, juror, or indictor in the same cause. Here he has given a solemn opinion, and, in the two latter instances, under oath. These, clearly, are principal chal- lenges ; and yet it has been held, that having been arbitrator is, in some cases, no cause of challenge ; as if he were chosen indifferently, not informed of or acted in the cause. Gilb. C. P. 95, &c. ; Trials per Pais, 146 ; 2 Hawk. b. 2, c. 43, § 27 ; Salk. 153. II. Supposing what has been stated and proved in this case to be good cause of challenge, good cause for setting the juror aside as prejudiced, or as not standing indifferent in the cause, — and I have no doubt that it was a good cause of challenge, — the next question is whether the juror in this case was challenged. If he was challenged, and the challenge overruled, 232 CHESHIRE. Temple v. Sumner. it would then seem to be no cause for setting the verdict aside. The defendant requested the juror to be put to answer whether he had formed and declared an opinion, &c. ; and the answers were in the negative. This was a challenging of the juror. According to our practice, no minutes of such challenges are made or entered on the docket. No formality in making a challenge is required. The motion or request of the party to the Court, that the juror may be put to answer, is a challenge. The party has his election (and the statute does not take it away ; it gives it as the common law did in most cases) (a) to offer proof of the challenge, or to put the juror to answer on his voir dire. If he elect the latter, he is precluded from going into evidence, and a fortiori precluded now from going into evidence to disprove the answer. If he suffers an injury from taking this course, it arises from his own negligence, or, at least, from his own act. If he chose then to pay the juror the compliment of taking his own declarations for evidence of his indifferency and im- partiality, he shall not now be permitted to take a differ- ent course. He chose then to treat the juror as a gentleman of honor, an honest, fair man. He shall not now con- sider him as a knave, and as actuated by malice towards him. This justice is due to the juror. The regularity of proceedings in courts of justice requires it. The party might have re- quired the juror to be sworn ; and, according to our practice, he might dispense with the oath and take his word. He would have been sworn, if the party had not waived it. In this examination it did not appear to the Court that the juror was not indifferent. If the Court erred in overruling the challenge (but in this case there is no pretence for such an allegation), I have found no case where it has been corrected on a motion for a new trial after verdict. If it be said that the party waived the exception or challenge, and that there was no formal (a) The cases where the juror may not be interrogated are those where the answer may be to the discredit or disadvantage of the juror. 3 Blackst. 364; 3 G. Bacon, 761-7(>G; Salk. 153; Tidd, 781. The question whether he had given his opinion seems, in some cases (I think improperly), to have been considered as an improper question. MAY TERM, 1808. 233 Temple v. Sumner. challenge or regular decision upon it, it will come to the same thing; he shall not now avail himself of what he waived then. III. But supposing this .good cause of challenge, and that no challenge was made; or, if made, waived in such son that the party is not thereby precluded ; and supposing also, what cannot appear, that the party did not then know of the cause of challenge, — it is no ground for granting a new trial. It is of importance that causes should be tried by an impar- tial jury ; but it is of equal importance that there should be some end to litigation. If it be once established as a principle that the party shall have the same advantage, on motion to set the verdict aside, of exception to a juror, as at the time of impanelling, there will be few challenges, and frequent trials in addition to the num- ber provided by the profusion, I will not call it liberality, of our law. The party who has a just cause of challenge to a juror will generally find it his interest to take his chance of a trial. If the verdict suits him, we shall hear nothing of the exception ; if unfavorable, we are then, on this doctrine, to try the cause over again, though complete justice may have been done by the verdict. 12 Mod. 567, 581. There is nothing in the books, or our practice, which gives countenance to so extravagant a doctrine. But a distinction is attempted, and cases may be found which countenance it, that, if a party did not know of the cause of challenge at the time, he may have the advantage of it on a motion for a new trial. 6 G. Bacon, 66 a 1 ; 7 Mod. 54. It would be a suffi- cient answer to the doctrine founded on this distinction, that it will generally be impossible to ascertain the fact of the ignorance of the party. It is easy to suppose that an artful man will conceal his knowledge, that he may turn it to the greater account. If the verdict is for him, his knowledge will do him no hurt. If against him, the burden will be on the other side, to prove that he knew of the ground of objection. In none of the cases where this distinction has been acted upon have I been satisfied that the party was as ignorant as he pre- tended to be. Sure I am, that by using due diligence, he may 234 CHESHIRE. Temple v. Sumner. have sufficient knowledge of all just exceptions to the jurors. I speak of the panel in our mode of choosing them. VVe find but little in our Looks on the subject of challenges. The reason is, because the old books of reports do not give any account of decisions on motions. The modern ones can- not; such motions being rarely made in a formal manner. So many jurors are attending, that, in England, the clerk usually calls only those against whom there is no objection on either side, and the Court are not troubled with the matter. 1 Sell. 475, t76, 503. Tidd (II. 81G), in enumerating the principal grounds for granting a new trial, does not mention, as one of them, the ground on which the present motion is predicated. I think, however, that, from an examination of the cases, we shall be able to find a rule clearly and distinctly marked, which must govern the present case. Where the writ of venire facias was, by mistake, made return- able after the assizes, a new trial was granted after verdict. 1 Sell. 311 ; 6 0. Bacon, 660, &c. Here there was no legal jury at all ; and it is laid down generally that a venire facias de novo may be granted where the jury was improperly chosen or returned, as well as where they improperly conducted themselves. 2 T. R. 126, notes; 2 Tidd, 830; 2 Strange, 887 ; 1 Wils. 55. But if the irregularity be such only that the return is not void, but the party may waive it, if he go to trial he shall not avail himself afterwards of the irregularity. Many irregularities or defects in convening, or in the qualifica- tions of, jurors, are aided after verdict. 3 G. Bacon, 772 ; Trials per Pais, c. 12, 199-212. If the under-sheriff were attorney in the cause, and returned the panel of jurors, a new trial will be granted. 1 Sell. 512 ; Cowp. 112. Here the jury was chosen and returned by the attorney of the party that prevailed. It was misbehavior in the party to suffer his attorney to choose the jury, for which he well deserves to be punished by the loss of his verdict. A new trial was granted, because the foreman of the jury had declared that the plaintiff should never have a verdict. 1 Sell. 512 ; 6 G. Bacon, 668 ; Salk. 615. If this declaration were made (and it does not appear from the report when it MAY TERM, 1808. 235 Temple v. Sumner. was made) after the jury were impanelled (and the word "foreman " in England implies as much), it is no authority in favor of the defendant, for it could not be cause of chal- lenge. And verdicts are frequently set aside for misbehavior of jurors. A new trial was granted, because one of the jurors declared, at the view, that, by what they had seen (and they had seen only for one side), they should soon determine the dispute ; and afterwards, before the trial in court, that, right or wrong, he would give the cause to the plaintiff; he was a neighbor. Com. 601. This decision was in the Exchequer, and against the opinion of one of the barons. Possibly it might be considered that the view made part of the trial ; so this was misbehavior at the trial, or after the trial begun. A new trial was granted because one person answered for another, or to another's name, and was sworn as a juror. Here a person tried the cause who was not chosen, or returned, a juror. The cause was tried by eleven jurors only. This was not a matter of challenge. 1 Sell. 512; 2 Burn, 363 (453) ; 1 Sell. 477. A juror on the principal panel was challenged, and after- wards sworn on the tales by a wrong name. A new trial was granted. The grounds, if there were any, on which this decision was made are not stated. It is believed, however, that it was this, that a person returned by a wrong name is not considered as returned at all, so that there were but eleven jurors. 1 Sell. 512; Strange, 640 ; 2 Ld. Raym. 1410 ; 6 G. Bacon, 661 ; Cro. Eliz. 429, 430 ; Trials per Pais, 156. Cooke s Case, cited in Fries's Trial. The question seems to have been whether good challenge or not. It does not appear that there was any motion for a new trial. 5 St. Tr. 8vo, 118. To these may be added the decision in United States v. Fries, 3 Dall. 517. It is sufficient to say, of this case, that the Court were equally divided in opinion ; and that the opinion which finally prevailed neither gave satisfaction at the time nor since. It was rather the effect of the judge's extraordi- nary humanity than the result of his law knowledge. 236 CHESHIRE. Temple v. Sumner. It seems in Connecticut, at a certain time, the distinction we have been considering was recognized. 2 Swift, 232 ; Kirby, 13, 62, 133, 166, 184, 280. It seems, however, that the Court go into an inquiry whether the previous declara- tions of the jurors influenced the verdict ; which is certainly incorrect. But it seems the same Court has decided, that it is no cause for granting a new trial that one of the jury tried the cause in the lower court, though a good challenge, because it is waived ; so that matter which is only challenge to the favor is no cause of granting a new trial. Notwithstanding some of the cases cited seem to counte- nance the doctrine contended for in behalf of the motion in the present case, yet it is conceived that the rules and general principles of law and practice are against it. And a strong argument may be drawn against allowing an exception to pre- vail, on a motion for a new trial, which would have been good by way of challenge, from analogy to proceedings in other cases. Respecting pleading, it is well known that the party may, and often does, waive good matter of defence by not pleading specially, — matter of abatement, by not pleading it in due time. Bad service, or no service, of the writ, is waived by appearance and pleading over. The statute of limitations is waived when not pleaded. Many exceptions which would be good on demurrer are not so in arrest of judgment, i. e. after trial ; not good in error, for the same reason. Irregularities sufficient to overthrow the proceedings are waived, if the party overlook them and take subsequent steps. 3 G. Bacon, 774 ; Co. Litt. 157 b, 158 a ; Com. 525 ; Co. Litt. 303 ; Manu- script Essay, Error, 63-73 ; 1 Tidd, 433, 435 ; 1 East, 77, 830 ; 7 T. R. 542, 543, &c. And the law respecting challenges is, that they must be made within certain times, or they are waived. After a juror is sworn, no cause of challenge can be alleged, except it arose after the swearing, unless by consent; a fortiori after verdict. Co. Litt. 158 a; 6 G. Bacon, 764; Trials per Pais, 152; 2 G- Bacon, 492, 493 ; 1 Strange, 70. So challenges must be taken all at once. 2 G. Bacon, 492, 493. Being related to the party is MAY TERM, 1808. 237 Temple v. Sumner. a principal cause of challenge, and yet we find a new trial was refused, and the reason given, because the other party, who might have challenged this man, ought to suffer for his neglect. 6 G. Bacon, 661. So, where the juror had a suit depending with the plaintiff, which is a principal cause of challenge (Tidd, 780 ; 3 Blackst. 363), against whom the verdict was found, a new trial was refused ; and, by the Court, Why did not the plaintiff challenge this man? 6 G. Bacon, 661. It has been often decided, that, if a party does not produce a record of conviction to prove a witness infamous, he shall not have a new trial on this account. For he ought to suffer for his neglect. 6 G. Bacon ; 672. So it is rare that any objection to the competence of a wit- ness is allowed to prevail, on motion for a new trial, for the same reason, unless the other party be in fault. 6 G. Bacon, 672; IT. R. 717. So a new trial has been refused, where it appeared that a material witness made a mistake in giving his testimony ; and that on account of the great inconvenience which would re- sult from the contrary practice. 1 T. R. 717. Our law has furnished parties with all the means of know- ing, before the jury are impanelled, every exception, every thing which shows them not indifferent. They must be chosen in open meeting ; six days, at least, before the sitting of the Court. If all legal exceptions are not discovered till after the Court, the other party, and the public, have had to en- counter the trouble and the expense of a trial ; the law justly imputes it to the want of due diligence. Indeed, there is not the same reason for strictness, as it respects the qualifications of jurors, as in ancient times ; because, with us, the party may have three trials as a matter of course ; and the verdict may, after all these, be set aside, if clearby against law or evidence, independent of any exception to the jurors. But this question has been lately decided in the Circuit Court of Pennsylvania, 4 Dall. 354, on a review of all the authorities, that alienage, though a good cause of challenge (2 Tidd, 780), before verdict, is no ground for a new trial. So it has been decided in this State. In Gregory $ Pickard 238 CHESHIRE. Temple v. Sumner. v. Wells, Grafton, May Term, 1807 (reported in N. H. Laws, ed. 1805, 109), which was a review, and the plaintiff recovered upwards of $1,400, there was a motion for a new trial, on the ground that one of the jury who now tried the cause on re- view was on the jury who tried the cause on the appeal, (a) Though this undoubtedly was a good cause of principal chal- lenge, yet the motion was overruled, and there was judgment on the verdict the same as before. 3 Blackst. 363 ; 3 G. Bacon, 757 ; 6 G. Bacon, 654, 655. This decision was made in conformity to former determinations in Rockingham and Strafford, though I am aware that there have been contradic- tory decisions in this State on this, as on most other subjects. For my own part, I see no objection to laying it down, as a general rule, that what might be taken advantage of by way of challenge shall not avail on motion for new trial, with the exception only of the cases where there has been gross mis- conduct in the other party as well as in the juror, such as bribery, &c. ; and the knowledge or ignorance of the party, as to the existence of the causes of challenge at the time of impanelling the jury, will make no difference in the case. Co. Litt. 157 b, n. 5 ; Trials per Pais, 146, 147. As the question before the Court is important to one of the parties at least, involving, as it is said, the loss of all his prop- erty, and, perhaps, the property of others, I have thought it my duty to give it the fullest consideration. As it relates to our practice, it is of importance that the rule should be settled and known. Other motions for new trials are addressed to the discretion of the Court, and the Court will refuse, even where there may have been a misdirection of the Judge, im- proper evidence admitted or rejected, if justice has been done. 4 T. R. 468; 3 Wooddes. 353; Lofft, Evid. 1198; 3 Blackst. (a) Grafton, Superior Court, May Term, 1808, No 23, John Porter, plaintiff in review, v. William Greenouyh. Verdict tor defendant ; balance, set-off, $29.45; former jury gave $20. Motion for new trial, Ex parte Porter, because Jonathan Cumings, a juror on this trial, sat as a juror at the Superior Court, on the trial on the appeal. Per Curiam. This was good cause of challenge, but no cause for new trial. See docket of that Term. MAY TERM, 1808. 239 Temple v. Sumner. 392. The trifling nature of the cause, the hardness of the action, and a variety of other things, mingle in the considera- tion and decision of the question. But it is not so here. If the party has not had a fair trial, and has not waived his exception by not taking it in season, the Court are bound to grant a new trial. I should have been satisfied with the ver- dict, if it had been the other way. But this has no influence on my judgment, because what the party now claims is a matter of right. It has been my earnest endeavor, and I have spared no pains, that he should have a legal decision ; that he should have that justice meted out to him which is dispensed to others in like circumstances. New trial refused; and judgment on verdict, {a} [The compiler has inserted here the following condensed reports of other cases in the manuscripts, bearing on this topic :] — In Caldwell v. Caldwell, Strafford, September Term, 1802, there was a verdict for defendant. Motion for new trial, on the ground that one of the jurors who tried the cause at this Term sat on a former trial of the same cause, in which there was a verdict for the plaintiff (which was set aside). The motion was refused. The Chief Justice did not sit in the trial of this cause. In his Manuscript Digest, the note of this decision concludes with the remark, " the same juror had de- cided both ways." In Gregory $• Pickard v. Wells, cited in the opinion in Temple v. Sumner, it appears (both from the Manuscript Digest, and from the note in Judge Smith's copy of N. H. Laws, ed. 1805, 109) that the verdict on the second trial was (a) See 11 Mod. 119; Bull. 307; 6 G. Bacon, 661-668; Salk. 645; Tidd, 817; 1 Sell. 512. [The following memoranda relating to Temple v. Sumner may have been intended for insertion as a note :] — Dangerous to take B.'s account of the matter, even on oath. May be collusion ; may have been in sentiment against verdict. As much business of one side that jurors be sworn as the other, — both may waive it. 240 CHESHIRE. Temple v. Sumner. the same way as upon the first trial. The fact that one of the jurors at the second trial sat on the first trial was admitted. C. Livermore, for Wells. Chamberlain, for Gregory & Pickard. Per Curiam. This was good cause of challenge ; but, being waived, it is no cause for granting a new trial. State v. Clarke, Rockingham, February Term, 1809, was an indictment for forgery. The defendant, having been con- victed, moved for a new trial, and in arrest of judgment. These motions having been overruled, he moved to set aside the verdict because one of the jury was not duly chosen and returned. Attorney-General, for State. Mason, for defendant. The Court intimated that it was too late to make this motion after a motion in arrest of judgment; but that, if made at any time after verdict, it was too late ; and that Temple v. Sumner, determined in the county of Cheshire, was an authority in point. The cause was continued for sentence, which was pro- nounced at September Term, 1810. In the Manuscript Digest, in connection with the above cases, reference is made to Kirby, 184 ; Commonwealth v. JBus- tsey, V6 Mass. 221 ; Knight v. Free-port, 13 Mass. 218. 1 1 The decision in Temple v. Sumner is in conflict with Wiggin v. Plumer, 1855, 31 N. H. 251, and perhaps with Tenneijv. Evans, 1843, 13 N. H. 462. But it is very strongly sustained by State v. Howard, decided in 1845, but not reported until 1864, 17 N. H. 171, 196-200. In support of State v. Clarke, reported in the addenda to Temple v. Sumner, see the cases which hold that objections to the legality of the drawing of a juror cannot be taken after verdict, if the grounds of the objection appeared on the venires and returns : State v. Hascall, 1833, 6 N. H. 352; Bodge v. Foss, 1859, 39 N. II. 106; J'ittsjield v. Barnslead, 1860, 40 N. II. 477; or if the grounds of objection appeared on the records of the town: Wilcox v. School District No. 1 in Lempster, 1853, 26 N. H. 303 (and see Wentworth v. Farmington, 1871, 51 N. H. 128). SEPTEMBER TERM, 1808. 241 Plastow i>. Kingstown. ROCKINGHAM, SEPTEMBER TERM, 1808. Plastow v. Kingstown. A pauper case between the towns of K. and P. turned on the question whether M. N. was to be considered as living in K. or P. during a certain time, when she lived on the farm of one F. Held, that, if it distinctly appeared that K. exercised exclusive jurisdiction over F. and his farm during such time, and that P. neither exercised nor claimed any jurisdiction during that time, M. N. must be regarded as having then lived in K., however the true divisional line between the towns might run. And so, if, after a certain date, exactly the contrary was true as to jurisdiction, M. N. must be regarded as living, after that date, in P. This was an appeal from the order of three justices (made on the application of Kingstown), charging Plastow with a certain sum expended by Kingstown in the maintenance of J. E., illegitimate son of M. N. ; and ordering Plastow to main- tain the pauper in future. The pauper (it was admitted J. E. was a pauper) was about three or four years old. By the act of Jan. 1, 1796, ed. 1805, 305, the pauper has the settle- ment his mother had at the time of his birth; so that the only question agitated at the trial was, where M. N. was settled four years ago. Smith, C. J., summed up to the jury. The question, by the pleadings, is, whether, at the birth of the pauper, M. N. had a settlement in Plastow. It is incum- bent on Kingstown to establish this point, or they fail in the prosecution. She was born in Kingstown about twenty-seven years ago, say 1781. But, it is alleged, afterwards, and before 1796, she gained a settlement by residing more than a year at the house of one Stephen Flanders (the house occupied after- wards by one David Flanders), and that this place is within the town of Plastow. Though under the age of twenty-one, she was capable, when separated from her father's family, of 16 242 ROCKINGHAM. Plastow v. Kingstown. gaining a settlement by habitancy. The fact of her living at Flanders's more than a year, between 1786 and 1796, is admit- ted. And the only question is, whether that house was with- in Plastow. What is now Kingstown and Plastow was originally Kingstown, incorporated as such, near a century ago. Plastow was set off by lines, 1749. As it respects the question of settlement by habitancy, in a case circumstanced like the present, there are two ways of de- termining it: 1. By the actual exercise of jurisdiction by one of the towns ; 2. By evidence of charter lines. From the evidence, it would seem, in this case, that, from the date of the charter of Plastow, 1749, till 1794, Flanders was poor, and his land of little value ; but both were taxed in Kingstown till about 1794 ; and Flanders considered himself to every purpose an inhabitant of Kingstown, and was so con- sidered by Kingstown. It does not appear that Plastow T exer- cised any jurisdiction till that time. Before that, however, the question had been agitated between sundry inhabitants and selectmen of the two towns. Plastow was desirous of acquiring this addition of territory and inhabitants, and Kings- town opposed. The selectmen of the two towns, in 1794, perambulated the line and made return of their doings, which was recorded, but not ratified by either town (it is believed they were recorded in the respective town books). By this perambulation, Flanders's house falls a few rods within limits of Plastow. Since that, Kingstown has made no claim, and exercised no jurisdiction. Plastow has. It is not clear whether M. N. lived more than a year after 1794 at Flanders'. She did before. It seems reasonable that the exercise of jurisdiction should determine the matter of settlement. By suffering a person to inhabit in a town more than a year, without being warned out, a settlement, at that time, was gained. And the limits of a town may well be supposed to be the jurisdictional lines, (a) and not the true charter lines, if different. If Kingstown ex- ercised jurisdiction over Flanders and his farm while M. N. lived there, for this purpose she may be considered as living, (a) The lines claimed, and peaceably and undisturbedly enjoyed. SEPTEMBER TERM, 1808. 243 Plastow v. Kingstown. and consequently settled, in Kingstown. If Kingstown select- men wished to prevent it, they would have warned her out. Plastow could not, with any propriety, (a) If, therefore, in the opinion of the jury, Kingstown exercised exclusive juris- diction over Flanders and his farm till 1794, and Plastow neither exercised nor claimed any jurisdiction till that time, and M. N. did not reside more than a year after that in the same place, the leaning of my mind at present is, that, in this case, M. N. is to be considered as living in Kingstown ; and so, for the same reason, if she lived more than a year in the same place after the perambulation of 1794, she must be considered as living in Plastow ; however the true divisional line be- tween the two towns may run. If the jurisdiction actually exercised does not distinctly appear, or if it were of the mixed kind, then it is not conclusive, and evidence of the true line must be resorted to. The exercise of jurisdiction will then be evidence (but not conclusive) as to the true line. It is certainly true that the selectmen, by a perambulation, or by taxing, &c, cannot bind the corporate body. But, if no objection is made, the town may be presumed to acquiesce, and to recognize their acts. There is no other way, in many cases, of proving the actual exercise of jurisdiction, power over persons and property, &c, by a town. The next question will be, whether the true line of division (a) When it is said in the statute, ed. 1805, 301, Prov. Law, 140, 263, that every person who hath lived a year in any town or place shall be deemed an inhabitant, unless such person shall have been warned out, within the year, by warrant from the selectmen of the town, directed to a constable thereof, &c, we are to understand the town both as to territory and inhabitants as they then are, or are reputed to be. Suppose that, after exercising jurisdiction peaceably to a certain line, it should be found that the place where the three selectmen and constable warning out actually lived was out of the limits of the town. Would this render such proceedings invalid? It is apprehended not. Their acts, at the time, were the acts of the town in which they were supposed to live. As Flanders was an inhabitant of Kingstown for the purpose of voting, training, being taxed, &c, he shall to every other purpose be deemed so, and his house and land in Kingstown. Suppose Flanders sued as of Kingstown, and plead in abatement, 1792, of Plastow. Plea bad. He is of Kingstown for this purpose. A plea of abatement for misnomer does not depend on lines running, surveyor's compass, &c. 244 STRAFFORD. Smitli v. Ladd. between Plastovv and Kingstown, according to the charter of Plastow, leaves Flanders's house in Plastow. As this was mere matter of fact, it is not thought useful to state the evidence or summing up. N. B. Verdict for Kingstown. There had been two former trials between same parties: 1st, respecting maintenance of M. N., the mother, — verdict, February, 1807, for Plastow ; 2d, respecting the maintenance of S. M., illegitimate son of M. N., — verdict, September, 1807, for Kingstown. In this third case, motion for new trial, verdict against law and evidence. Re- fused per Curiam. It does not appear that jury decided question of law wrong. There was evidence, on both sides, on each point ; full, fair trial. Judgment. 1 STRAFFORD, SEPTEMBER TERM, 1808. Jonathan Smith v. Elias Ladd. The horse of S. was taken damage feasant in L.'s cornfield; and, there being no pound in the town, was confined in L.'s barn, situate in the same cornfield. L. immediately sent S. the following written notice, properly dated, signed, and directed : — "A dark-red horse is taken up doing damage in my cornfield, and is impounded; the damage estimated at $2. The horse is supposed to be yours. . . ." S. immediately came to L.'s barn, where the horse was, and conversed with L., but made no objection to any uncertainty in the notice, or required any more particular information. Held, that, if there was any defect in this notice.it was cured by S.'s appearance, without making any objections. Whether written notice is necessary in all cases, qiuere. In a case of impounding, the report of appraisers appointed by a justice is con- clusive as to the trespass and the quantum of damages. Smith, C. J. — This is a motion for a new trial on question reserved at the trial the present Term. It is an action of trover, to recover the value of a dark-red horse, property of 1 S. P. Northwood v. Durham, 1820, 2 N. H. 242. See note to Currier v. Basset, reported ante. SEPTEMBER TERM, 1808. 245 Smith i>. Ladd. the plaintiff, converted by defendant to his own use, Sept. 17, 1805, at Sandwich ; the value is alleged to be $70. Plea : the general issue. On the trial, it appeared in evidence and by admissions of the parties, that the plaintiff was once the owner of the horse in question ; that the defendant owned two farms, one in Sandwich, and one in New Holderness ; the farm in New Holderness is within half a mile of plaintiff's. The defend- ant, till spring, 1805, lived on the Sandwich farm, and his son on the New Holderness farm ; but, at that time, his house in Sandwich being burnt, he removed to his farm in New Hold- erness, with his family, and continued there till after the month of September, in the same year. On Sept. 16, 1805, the horse in question was found in defendant's corn and field, on the New Holderness farm, doing damage ; the defendant immediately took him up, and, there being no pound in New Holderness, confined him in his barn or yard, which was situate in the same field where the damage was done ; and immedi- ately sent a written notification to the plaintiff, of which the following is a copy : — "New Holderness, Sept. 16, 1805. "Jona. SMiTn, Sandwich, — " A dark-red horse is taken up doing damage in my corn and field, and is impounded ; the damage estimated at $2. The horse is supposed to be yours. The settling the costs and damages this forenoon will pre- vent further cost and trouble. Elias Ladd." On this notice, the plaintiff immediately came to the defend- ant's barn or yard where the horse was, and conversed with the defendant on the subject, but made no objection to the estimate of damage, or to any uncertainty in the notification, or required any more particular information. He did not offer to pay the damages, or any thing for damage or charges ; nor did he replevy, or apply to a justice of the peace to have the damages appraised. On September 19, the defendant applied to a justice of the peace to have the damages appraised, which was regularly done, and report made to the justice, Sept. 20, 1805 ; damages 24G STRAFFORD. Smith v. Ladd. $2.50. The plaintiff still neglecting to pay the damages so assessed and reported, and the charges incurred as assessed by the justice, and not replevying, on September 26, the justice, by his warrant, ordered the horse to be sold, for payment of the damages and costs (the costs being $7.50, besides fifty cents for the warrant), at public auction ; which was done in due manner, and the horse was fairly sold for $6. The proceed- ings of the justice were regular throughout, and due notice given to the plaintiff wherever such notice was required. The jury found for the defendant. The plaintiff, in the course of the trial, made several objec- tions to these proceedings, which are now to be considered. I. He offered to prove that the fences were insufficient; that the horse did not do all the damage which was considered by the appraisers, part of that damage only [?] was done by other creatures ; that the appraisers did not estimate the dam- age at the sum reported, but at $1 only ; that Ladd himself wrote the report, and inserted $2.50 instead of $1, &c. This evidence was not admitted. The Court were of opinion that the report was final and conclusive, between the parties, as to the trespass and as to the damages. Smith might have had the damages appraised, if he had so pleased ; or he mi^ht have attended the appraisers appointed at the instance of Ladd, or on the return to the justice, (a) This ex parte hearing is as conclusive as if both parties had attended, as bind- ing as a judgment of court; we cannot now inquire into the merits. I do not know that we can now inquire into the fact of an alteration made by Ladd as alleged. The time for such an inquiry was when the report was offered to the justice. But, as to this point, the evidence was gone into by consent, and the jury have acquitted Ladd of the improper conduct attrib- uted to him. As to these particulars, I see no reason, on a careful reconsideration of the whole matter, to be dissatisfied with the opinion of the Court, or the verdict of the jury. II. But the principal objection was, that the notification was not such as the statute requires ; that it does not describe («) Qucere. What would that avail? It does not appear justice has any thing to do with the report; cannot recommit, or refuse to accept. SEPTEMBER TERM, 1808. 247 Smith v. Ladd. with sufficient certainty the damage done, the time when and the place where it was done, where the horse was impounded, and the charges then accrued. At the trial, the Court ex- pressed an opinion that the notification was sufficient, and the jury have decided agreeably to that opinion. The question is whether that decision be correct or not. The intention of the statute is that such notice shall be given that the owner may know what has become of his creature ; may have an opportunity of obtaining it again by paying the damages estimated and charges incurred, or have the damages appraised by indifferent persons ; or, if he should be of opinion that no trespass was committed, that he may replevy the creature impounded. The statute does not require that notice of the place of impounding (a) should be in writ- ing. In this case, it is clear, sufficient notice was given of that fact ; for the plaintiff saw the horse in the defendant's barn or yard. Does this notification certify the owner of the damage done ? It tells him that the horse has done damage in defendant's corn and field, which he estimates at $2. This is sufficient for all the purposes contemplated. It is as descriptive, though not so technical, as a declaration in trespass quare clausum /regit. Does it certify the plaintiff of the time when, the place where, the trespass was committed ? It says the horse is taken up, this Sept. 16, 1805, in my cornfield, doing damage. Is not this equivalent to saying the damage was done Sept. 16, 1805 ; and is not this as certain description of the time as a declaration in trespass ? Indeed, in trespass, the proof may be of any tUy before the action brought. A reasonable construc- tion must be given to the words of the statute. It does not require the hour to be mentioned ; the day is sufficient. The place is described, — my corn and field. It is sufficient, if the owner have such information that he may examine for him- self. The parties lived within half a mile of each other. The notification does not say, "my farm in New Holderness ; " but he lived there, as plaintiff well knew. His farm in Sandwich was at the distance of three miles, and he did not live upon it- at (a) The place in which the creatures impounded, common pound, or impounder's barn, &c. 248 STRAFFORD. Smith v. Ladd. the time. Could plaintiff suppose he meant that ? A case may be supposed where a notification in this form would be uncertain. Suppose he owned, in New Holderness, ten farms, instead of one, and lived on neither, but boarded at another place. As the statute prescribes no form of notice, it is suffi- cient if reasonable notice be given in each case. What would be sufficient in one case might not be so in another. It is further objected that the charges are not specified. As none are specified, it would seem clear that none would have been demandable if Smith had elected to tender and replevy, or sue. But he did neither. It is, therefore, my opinion that, circumstanced as the present case is, giving a reasonable construction to the statute, the notification is sufficiently certain. Cases may be supposed where no notification in writing would be necessary at all. Suppose the owner present all the time, see the horse doing damage, see him impounded in the barn or yard in the same field, and the owner tell him, at the time, he estimates the damage at $1. The most that could be taxed for charges in such case would be one penny, which the impounder waives demanding. Though the statute speaks of a written notification, yet, where the end to be accomplished is already answered without, it is unnecessary. It has been holden in this State, in a matter of much greater consequence, and where the words of the statute are both positive and negative, yet that they may be dispensed with. I allude to the registering of conveyances. The statute says they shall be registered to make them valid to pass lands, and not good without ; and yet it has been held that, where the end to be answered by registering, viz. notice, is accomplished without, the deed, against the words of the statute, is good, though not registered. But, independent of this, and on other grounds, I am of opinion that this notice would be good, though not certain enough in itself. I mean that the defect was cured bv appearance (a) and no objection made. An uncertain declaration or bad service is cured by appearance and plead- ing to the merits. The case of tender is stronger than the (a) Attendance at the place on the notice. OCTOBER TERM, 1808. 249 Jones v. Coos Bank. present. Tender in bank bills is not good. But, if the party make no objection at the time, it is. So here, if this notification is uncertain, as it produced an appearance, and was not objected to in the time of it, it is now too late [to object.] New trial refused. Judgment on verdict. 1 GRAFTON, OCTOBER TERM, 1808. Nehemiah Jones v. Coos Bank. In an action of assumpsit against a bank, on a note issued by the bank, held: de- fendants bound to pay notes, when presented, in a reasonable time ; when a number of bills are presented, defendants should be allowed as much time to count and pay specie for them all as it would take to receive the same amount in specie, and give the same number and amount of bills in exchange ; the bank cannot claim the right of paying each bill separately ; bank may establish reasonable hours for transacting business at the bank ; evading payment is a neglect and refusal to pay. Appeal from justice of the peace. Assumpsit. There were two counts. 1. Money had and received, Oct. 21, 1807. 2. On promissory note made by bank, July 4, 1806, $7. Plea : the general issue. At the trial, May Term, 1808, the plaintiff proved that he presented this note, with others, at the bank, Oct. 21, 1807, 1 As to the sufficiency of notices relative to impounding, see Drew v. Spaulding, 1864, 45 N. H. 472 ; Mclntire v. Harden, 1838, 9 N. H. 288. As to the effect of an omission to give proper notice, see Kimball v. Adams, 1825, 3 N. H. 182; Smith v. Brown, 1817, 1 N. H. 36; Mclntire v. Marden, 1838, 9 N. H. 288; Young v. Rand, 1847, 18 N. II. 569. The report of the appraisers was conclusive under the Revised Statutes, as under the statute of 1791. Osgood v. Green, 1856, 33 N. H. 318, 326, 328. The justice is the mere depositary of the report ; and no notice of the time and place where the report will be delivered to him is necessary to be given to the parties. Osgood v. Green, ubi sup. 250 GRAFTON. Jones v. Coos Bank. amount $1,500, and requested specie ; was at the bank from 9 to 12.30. Cashier paid $200 or $300, in the course of the forenoon, in change and crowns ; refused to pay any other way than one bill at a time. (It is not necessary to state the evidence. It was clear that the cashier evaded payment ; de- layed unreasonably ; at 12.30, refused to pay any more that day, &c.) Smith, C. J., summed up. He said: Jury, to find for plaintiff, must be satisfied that the notes were offered at the bank for payment in specie : 2 Selw. 787 ; that payment was requested. Evidence on this point very clear. Jury must also be satisfied that defendants have neglected and refused payment. Defendants were bound, in a reason- able time, to count the bills offered, and to count or weigh the specie. Holder has a right to expect promptness, such as banks use in their other transactions. They should be allowed as much time to redeem these bills as it would take to receive $1,500 in specie, and give the same sum in bank notes, in ex- change. Bank has no right to insist on paying bill by bill. They may establish reasonable hours for transacting business at the bank, (a) Jury will consider whether there was not, in this case, time enough to have redeemed all the notes offered before bank shut up, Oct: 21 ; whether there was not evidence of unreasonable delay, a disposition to evade payment. If so, there was sufficient evidence of neglect and refusal. Jury have no concern with character of either party. Plain- tiff's rights and defendant's duties are all that the jury ought to regard. There is no room for doubt as to facts or law. Jury found for plaintiff. 1 (a) A person who takes a bank note impliedly agrees to present it for payment at the bank, within the usual banking hours at the place where made payable. Selw. 787. 1 An opinion was subsequently delivered upon a motion as to costs in the above and other similar cases ; but there is no mention of any excep- tions to the charge. OCTOBER TERM, 1808. 251 State v. Stevens. State v. David Stevens. Debt lies on a recognizance to the State. The declaration in debt on recognizance need not state the occasion of taking the recognizance. Debt on recognizance ; for that the said David Stevens, before C. H., Esq., one of our justices assigned, &c.^ at , in said county, on , acknowledged himself indebted to the State of New Hampshire in the sum of $25, to be levied on his goods and chattels, lands and tenements, and, for want thereof, on his body ; on condition, nevertheless, that if one B. S., of , should personally appear before the aforesaid C. H., Esq., &c, at , on , to answer to the matters and things which should then and there be objected against him by S. H., of , in behalf of said State, concerning an assault made upon her, the said S. H., and other misdemeanors tending to the breach of the peace, and should do that which should then and there be enjoined upon him by the said justice, and should be of good behavior to all the citizens of the State of New Hamp- shire, especially towards the said S. H.,and not depart without license, then the aforesaid recognizance to be void and of none effect, otherwise in full force and effect ; as, by the record of said recognizance with the said C. H. remaining, appears, an authenticated copy of which is in court to be produced ; and at a court holden by the said justice, on , at , upon hearing the complaint of the said S. H., on behalf of said State, touching the matters and things then and there by her alleged against the said B. S., and examination thereon being had, the said B. S. was ordered by our said justice to recognize himself in the sum of $100, with two sufficient sureties, in the sum of $50 each, for the appearance of the said B. S. before our justices of our Superior Court of Judicature then next to be holden at , on , to answer to such things as should then and there be objected against him in behalf of said State ; and the said B. S. did then and there refuse to recog- 252 GRAFTON. State v. Stevens. nize, as he was ordered as aforesaid, and did then and there depart from the court then and there holden before our said justice, without license, in contempt of the authority of our said justice, contrary to the tenor of the recognizance aforesaid of said David Stevens ; and the said David Stevens, being then and there three times solemnly called to bring the body of said B. S. into court then and there holden before our said justice, did not bring the body of the said B. S. when called upon so to do, but then and there made default, whereupon the recognizance aforesaid of the said David Stevens became and was forfeited, and was then and there adjudged and declared forfeited by our said justice ; all which, by the record thereof, with the said justice remaining, appears ; whereby an action hath accrued to said State to demand and have of said David Stevens the aforesaid sum of $25 at said ; yet, though often requested, said David has never paid the same, but unjustly detains it ; to the damage of the said State of New Hampshire, as they sa} r , the sum of $60. To this declaration the defendant demurred, and assigned for causes : — 1. That it does not appear that any suit, prosecution, or process had been instituted, and was pending before the jus- tice, against the said B. S., or any other person, when the recognizance was entered into ; or that B. S., or any other person, had been, or then was, brought before the said justice, to be examined or tried for any criminal offence. 2. It does not appear that the justice was authorized to take any recognizance when he took this. 3. By law, no action of debt lies on such recognizance. 4. That the declaration is bad, insufficient, informal, &c. Joinder in demurrer. Noyes, for plaintiffs. Webster, for defendant. The opinion of the Court was now delivered by Smith, C. J. [He first stated the substance of the declaration, and then continued as follows :] It seems to be admitted that C. H. OCTOBER TERM, 1808. 253 State v. Stevens. was a justice of the peace, and that, under certain circum- stances, he was empowered to take recognizance ; but it is contended that this declaration does not state a case of that description. By the statute of Feb. 9, 1791, N. H. Laws, ed. 1805, 55 (he has the same authority at common law in this State), when any persons brought before a justice for examination or trial, he may postpone the matter to a future day, and he may take a recognizance of the party, for his appearance before him at such future day, in the same manner as the sessions and this court may do. 1 If he may take a recognizance of the party, any other may lawfully recognize for him- He may order sureties. David Stevens, in this case, was probably a surety. He may take this recognizance in the same manner as this court may do. In such case, the recognizance in this court does not state, nor need a declaration upon it, how the party came before the court ; whether on complaint and recognizance before a justice of the peace ; on indictment and capias ; on voluntary act ; or by order of the court when no prosecution pending. And, for the same reason, it need not state these things when taken before a justice of the peace. The party submitted to the justice's order to recognize, and shall not now object. If the order was illegal, he might have refused, and, if committed, have had a habeas corpus aud obtained his discharge ; or, if the act of the justice was wanton and malicious, he would have remedy by action. Besides, there may have been good cause for this recogniz- ance, and yet no prosecution instituted or pending before the justice at the time. Suppose the justice saw the assault on S. H,, or heard B. S. threaten to kill her, &c. In such case he might lawfully order B. S. to recognize for his appearance before him, at a future day, to answer, &c, and, in the mean time, to be of good behavior. Such a case would be properly described in this declaration. And if there is any possible case in which the recognizance may have been lawfully taken, it is sufficient. 1 As to the authority of justices of the peace to take recognizances, see Bell, C. J., in State v. Eastman, 1860, 42 N. H. 265, 267-273. 254 GRAFTON. State v. Stevens. But I form my opinion on the ground first stated, that, in debt on recognizance, it is not necessary to state the occasion of taking the recognizance. As it is a debt solemnly acknowl- edged before a court of justice, it is presumed to be a lawful transaction, and binding, till the contrary is shown, (a) It is further objected that debt does not lie on recognizance. The authorities are the other way. Com. Dig. Debt, A. 3 ; 4 Blackst. 253 ; Tidd, 237, 238, 994 ; Cro. Eliz. 608, 817 ; 3 Wooddes. 96; 2 Selw. 467; 1 Wilson, 284; Com. Dig. Pleader, 2 W. 10. (7>) Judgment for the State. 1 (a) A declaration on a bond or other specialty [or record] need not state how the debt accrued, otherwise than the making of the obligation, the rendering of the judgment, &c. ; not the consideration, suit, &c. Sed vide Willes, 18, 19. (b) Debt is sometimes brought upon a recognizance of bail: 1 Chitty, 104; 2 Chitty, PI. 177-181; but the remedy against bail is more frequently by scire facias. Willes, 18. Debt lies on recognizance. See Gilbert's Cases, Essay on Action of Debt, 394, 395. Debt doth lie on recognizance for good behavior. 1 Hall's Law Jour. 1 I. Commonwealth v. Green, 1815, 12 Mass. 1, is a direct decision that debt lies on a recognizance to the State. In State v. Davis, 1862, 43 N. H. 600, and State v. Chesley, 1828, 4 N. H. 366, no objection was raised to this form of action. II. Upon the question whether the occasion of taking the recognizance should have been stated in the declaration, the authorities are not unani- mous. State v. Stevens is sustained by Champlain v. People, 1848, 2 N. Y. (Comstock) 82, and People v. Kane, 1847, 4 Denio, 530. FEBRUARY TERM, 1809. 255 Doe v. Morrell. ROCKINGHAM, FEBRUARY TERM, 1809. Samuel Doe v. Benning Morrell. D. and M. each owned one-half of a dwelling-house. \Jt had been built all to- gether; two rooms on the floor, chimney in the middle, entry on the front side, from which stairs to both chambers, and entrance into both rooms. D.'s title to his part was under a set-off on execution. The division was by an imaginary line running through the middle of the front door, entry, stairs, chimney, &c. The house was old, and needed repairs. M.'s part was not worth repairing; but D.'s part was tenantable. The fire-wards, upon view of M.'s part, were of opinion that it was dangerous for want of repairs, and ordered it to be repaired, or otherwise rendered not dangerous on account of fire. M. took down his part to the line. He left half the materials of the entry for D. ; sawed through the plate, girts, stairs, &c, but did not take down the chimney. He did these things carefully, doing as little damage as possible to D.'s part of the house. Ileld, that D. could maintain trespass against M. This was trespass, (a) for breaking into plaintiff's dwelling- house in Portsmouth ; tearing down doors, walls, stairs, &c., carrying away part, &c. Plea : general issue ; with leave to give special matter in evidence. At the trial, February Term, 1808, it appeared in evidence that the plaintiff and defendant owned a dwelling-house. It had been built all together, two rooms on the floor, chimney (a) Matts v. Hawkins, 5 Taunt. 20. Adjoining owners are not tenants in common in a party-wall, although erected at their joint expense ; and one may maintain trespass against the other for pulling down his part. The property in the wall follows the property in the land, ut semble. See 8 Went. PI. 544; trespass on the case for pulling down two houses which stood on each side of plaintiff's house, whereby plaintiff's house was exposed to the weather, &c. Declaration for not rebuilding within a reasonable time party-wall pulled down by defendant, owner of house contiguous to plaintiff's, for the purpose of rebuilding his (defendant's) house. 8 Went. PI. 558. 256 ROCKINGHAM. Doe v. Morrell. in the middle, entry front side the chimney, outside door, stairs up to the chambers. The part which plaintiff owned had been set off on execution some years before. Plaintiff claimed under the levy. They (sheriff and appraisers) di- vided by an imaginary line, running through the middle front door, entry, through the stairs, chimney, &C. 1 The whole house was now old and out of repair, and defendant's part not worth repairing ; but the plaintiff's part was tenantable. The fire-wards viewed defendant's part, and were of opinion that it was dangerous for want of repairs — it was untenanted and untenantable. They ordered it to be repaired (or other- wise rendered not dangerous on account of fire). The defendant, at the time mentioned in the declaration, August, 1807, took down his part to the line. He did it carefully and prudently, doing as little damage to the plaintiff as he could. He left half the materials of the entry for the plaintiff; sawed through the plate, girt, stairs, boards, &c. ; but did not take down the chimney. On these facts, which were either proved or admitted, the question was, whether defendant was liable in any action ; and, if in any, whether it should not have been case and not trespass. It was agreed that the jury should be instructed that the action lies, and that they should estimate the dam- ages ; and that the verdict should be entered, subject to the opinion of the Court whether, on the evidence as stated in the Chief Justice's minutes, this action, in point of law, could be maintained. The jury estimated the damages at $50. At this Term, Mr. Freeman and Mr. Mason were heard for the defendant. They cited Syst. Pleading, 63 ; Buller, 26, 79 ; 1 Strange, 634 ; s. c. 8 Mod. 272 ; 2 Wils. 313 ; 2 Burr. 1114, to show that trespass did not lie. They denied that any action lay. The defendant owned to the line. He was the exclusive owner, and not tenant in common with the plaintiff. But, if he had no right to do what he had done 1 The validity of such a levy is affirmed in Tifft v. Walker, 13:59, 10 N. II. 150. FEBRUARY TERM, 1809. 257 Doe v. Morrell. (open one side of plaintiff's house and let in the air and storm), the act was done on defendant's own land and to his own timber ; the damage was merely consequential. Webster for plaintiff. Smith, C. J. I have taken some pains to examine the books in relation to this case, since the trial, but have not met with much success. I am inclined to think that each of the parties were interested in the entry, stairs, chimney, &c, and that neither could destroy these without the consent of the other ; that each of these owners was under an obligation to the other to keep his part in repair, at least so far that the tenement of the other should suffer no injury from want of such repair, (a) It may be likened to the case of a party- wall, which neither owner can remove. 1 Domat, 306, 308 ; 1 Selw. 355 ; 1 Dall. 341, 346 ; Co. Litt. § 323, pp. 54 b, 200, a, b ; Esp. 411. See statute 11 Geo. I. c. 28 (6 Anne, c. 31 ; 37 Anne, c. 17), proceedings in pulling down an old ruinous party-wall. From the nature of the thing, these parties must be con- sidered as interested, as it were, in common, in the entry, chimney, stairs, &c. ; and neither could destroy that in which the other had a valuable interest. Doe had an easement, or right of enjoyment, of that part of the entry which was beyond the middle line, which does not depend on the courtesy of defendant ; it is a matter of right. It is for the interest of both parties that this should be the case. It may be said the owner may do what he will with his own ; but this is to be understood with this reason- able restriction, that he shall not thereby hurt another or (a) If one man have an house adjoining to mine, and, for want of repair, his house annoys mine, I shall have a writ against him de repara- tione faciendd. F. N. B. 127. If Doe could compel Morrell to repair, clearly Morrell cannot plead, as a justification for pulling down, that his part was out of repair. It is apprehended case would lie for not repairing. F. N. B. 127, n. a. Clearly Morrell could not destroy his part, if thereby Doe as much or more injured as by want of necessary repairs. 17 258 ROCKINGHAM. Doe v. Morrell. injure the property of another, (a) But the truth is, it is not his own in an absolute, exclusive sense ; because Doe has a right to the enjoyment of it. (6) I think, therefore, an action lies ; and, for the reasons hinted at, trespass is the proper action. The injury is direct and not merely consequential. 1 Selw. 355. The acts done by Morrell were the immediate cause of the injury to the plaintiff. It would seem case would not lie. Com. Dig. Action on the Case, b. 6. Sed vide note ante, 8 Went. PI. 544. The other judges concurring, — Judgment was given for the plaintiff. 1 (a) Sic tuo uteris ut ne laedas alieno. (b) In consequence of the situation of this property, there are many things which other owners may lawfully do which Morrell may not, — burn it down ; suffer it to be out of repair; disturb Doe in the enjoyment of entry, stairs, chimney, &c. For a mere disturbance, the remedy would be by action of the case; but for destroying the entry, stairs, chimney, &c, trespass. 1 I. It is quite clear that, so long as both tenements remained in good condition, Morrell had no right to deprive Doe's tenement of support, or to prevent the beneficial use of the entry and stairway. Richards v. Rose, 1853, 9 Exch. 218; Thompson v. Miner, 1870, 30 Iowa, 386; Morri- son v. King, 1871, 62 111. 30. See, as to the analogous case of party-walls, Enov. Del Vecckio, 1854, 4 Duer, 53; s. c. 1856, 6 Duer, 17; Rogers v. Sinsheimer, 1873, 50 N. Y. 646; Brondage v. Warner, 1841, 2 Hill, 145; Pottery. While, 1860, 6 Bosw. 644; Dowling v. Hennings, 1863, 20 Md. 179; Phillips v. Bordman, 1862, 4 Allen, 147; Tindal, C. J., in Bradbee v. Christ's Hospital, 1842, 4 M. & G. 714, 761. (In the report of Wigford v. Gill, 34 Eliz., Cro. Eliz. 269, there is nothing to show that the adjoin- ing owner, who pulled down that part of the wall which stood on his land, ever consented to its erection, or was under any obligation to allow it to remain.) To sustain the above position as to Morrell's rights and duties, it is not necessary to indorse the much controverted doctrine of Pyer v. Carter, 1857, 1 H. & N. 916; nor to accede to all the views expressed by Bell, J., in Dunklee v. Wilton R. R., 1852, 24 N. H. 489, 495-507. See the very explicit admission of one of the leading opponents of Pyer v. Carter, viz., Lord Westbury, in Suffield v. Brown, 1864, 4 De G. J. & S. 185, 198. The cases of Webster v. Stevens, 1856, 5 Duer, 553, and Dillman v. Hoffman, 1875, 38 Wis. 559, were decided on grounds not existing in Doe V. Morrell. FEBRUARY TERM, 1809. 259 Doe v. Morrell. Hieatt v. Morris, 1860, 10 Ohio St. 523, countenances the doctrine, that one of the owners of a party-wall, which was built by agreement, may take it down, in order to erect, on his lot, a building better suited to the increased value of the land. But this doctrine is inapplicable to Doe v. Morrell, and does not seem in accord with Morrison v. King, Potter v. White, and Dowling v. Hennings, ubi supra. It has been held that, when a party-wall is insecure, one of the owners, if in no fault for its condition, may take it down and rebuild it, without being liable to the other owner for damage thus occasioned. Partridge v. Gilbert, 1857, 15 N. Y. 601; Crawshaw v. Sumner, 1874, 56 Mo. 517. See also Richardson v. Frank, 1870, 2 Cincinnati Superior Court Reporter, 60; Cubitt v. Porter, 1828, 8 B. & C. 257: Jessel, M. R., in Standard Bank of Africa v. Stokes, 1878, 38 L. T. n. 8. 672. But, in the present case, Morrell does not appear to have entertained the purpose of rebuilding. II. The question of MorrelPs obligation to repair his part for the purpose of affording continued support to Doe's part is not necessarily involved in this action; which was brought to recover for positive acts of destruction, and not for mere neglect to repair. It might be held that Morrell, even if under no duty to repair, was bound (apart from the matter of public danger) to let his part stand so long as it furnished a support to the other part. The question whether Morrell was under obligation to repair can hardly be said to be decisively settled by the cases ; but the weight of recent authority is in the negative. It is said in Keil. 23 H. VII. 98 b, pi. 4, that, if one man have the upper part of a house, and the other the lower, they may each compel the other to repair his part in preservation of the other. See also the dicta of Lord Campbell, C. J., in Humphries v. Brogden, 1850, 12 Ad. & El. n. s. 739, 756, 757 (citing, with approval, Erskine's Institute of the Law of Scotland), and Dillon, C J., in McCormick v. Bishop, 1869, 28 Iowa, 233, 241. The case in Keil way, or the report of it, was doubted by Holt, C. J., in Tenant v. Goldwin, 3 Anne, 6 Mod. 311; s. c. 2 Ld. Raym. 1089; 1 Salk. 21, 360; where it was said that the writ in F. N. B. 127, is grounded upon the custom of the place, and not upon the common law. According to the head-note in Anonymous, 1 Anne, 11 Mod. 7, the doctrine of the case in Keil way was there affirmed; but the case in 11 Mod. is so imperfectly reported as to be of little value. In Cheeseborough v. Green, 1834, 10 Conn. 318, it was decided, that the owner of the lower part of a house cannot maintain an action on the case, against the owner of the upper part, for suffering the roof to become leaky and ruinous, whereby goods in the lower part are damaged; the Court saying that the plaintiff could have an adequate remedy only in chancery. In the case of a ruinous party-wall, it was held by Chancellor Kent, 260 ROCKINGHAM. Doe v. Morrell. that one of the owners, who pulled it down and rebuilt it, could recover contribution in equity from the other owner. Campbell v. Mesier, 1820, 4 Johns. Ch. 331. And see Read, J., in Vollmer's Appeal, 1869, 61 Pa. St. 118, 128 (a case turning on a statute); Brown, P. J., in List v. Hornbrook, 1867, 2 W. Va. 310, 346; Stevenson v. Wallace, 1876,27 Gratt. 77. In Bunnelsv. Bullen, 1823, 2 N. II. 532, Woodbury, J., said, p. 535: "And where the decay is suffered in a portion of a party- wall between cellars or houses, no doubt an action for the consequent damage can be sustained by the other owners;" and he subsequently cited Doe v. Morrell, with seeming approval. In Sherred v. Cisco, 1851, 4 Sandf. N. Y. Superior Court, 480, it was held, that there was no claim for contribution where one of the owners of a party-wall rebuilds it after the destruction of the wall and both adjoin- ing buildings by fire. And in Partridge v. Gilbert, 1857, 15 N. Y. 601, 615, Denio, C. J., said: " I do not perceive any solid distinction between a total destruction of the wall and buildings, and a state of things which should require the whole to be rebuilt from the foundation. In either case, there is great force in saying that the mutual easements have become inapplicable, and that each proprietor may build as he pleases upon his own land, without any obligation to accommodate the other." These dicta of Judge Denio are indorsed in Freeman on Cotenancy and Parti- tion, § 256. And see Glenn v. Davis, 1871, 35 Md. 208; Cochran, J., in Dowliug v. Hennings, 1863, 20 Md. 179, 185; Scholeield, J., in Huck v. Flentye, 1875, 80 111. 258, 260; Mellor, J., in Colebeck v. Girdler's Co., 187(i, L. R. 1 Q. B. D. 234. Compare § 223 of Wood on Nuisances with §§ 229-231 of the same work. See also statement of the French law in Washburn on Easements, 2d ed. 555. Pierce v. Dyer, 1872, 109 Mass. 374, was an action of tort by the owner of one part of a house to recover damages for the wilful neglect of the other owner, in permitting his part to become ruinous and fall into decay, whereby the plaintiff's part was damaged. It was decided that the action could not be maintained; the Court holding that there was no implied obligation to repair. Some New Hampshire decisions, though not in point, may be noticed in this connection. The grantee of a right to grind at a corn-mill cannot maintain case, against one claiming the mill under the grantor, for not keeping it in repair. Barllett v. Peaslee, 1847, 20 N. H. 547. A license to erect a dam and flow the land of another terminates with the decay of the dam, and gives no right, when the dam has become decayed aud ruinous, to re-erect or repair it, and flow the land again. Cowles v. Kidder, 1852, 24 N. H. 364; Carleton v. Redington, 1850, 21 N. H. 291, 307. The owner of the upper part of a house cannot maintain an action at law against the owner of the lower part, to recover contribution for repairs made on the roof. Loring v. Bacon, 1808, 4 Mass 575; Wiggin v. Wiggin, 1862, 43 N. H. 561; Oltumwa Lodge v. Lewis, 1871, 34 Iowa, 67. FEBRUARY TERM, 1809. 261 Doe v. Morrell. III. As to the form of action. Morrell's counsel argued that, even "if he had no right to do what he had done — open one side of plaintiff's house and let in the air and storm — the act was done on defendant's own land and to his own timber. ..." But it would seem physically impossible for Morrell to have sawn asunder his half from Doe's without placing part of his (or his servant's) hand or foot upon or over Doe's part, during the act of sawing. Morrell's right to enter upon Doe's side of the stairs for purposes of passage did not include a right to enter for purposes of wrongful destruction. The wrongful placing of part of his hand or foot upon or over Doe's side would be a trespass, according to the views expressed by Lord Coleridge, C. J., in Ellis v. Loftus Iron Co., 1874, L. R. 10 C. P. 10, 12. " It is clear that, in determining the question of trespass or no trespass, the Court cannot measure the amount of the alleged trespass; if the defendant place a part of his foot on the plaintiff's land unlawfully, it is, in law, as much a tres- pass as if he had walked half a mile on it." In that case, it was held a trespass, if the mouth and feet of the defendant's horse protruded over the plaintiff's land, through an opening in a wire fence ; Lord Coleridge saying, " That may be a very small trespass, but it is a trespass in law." The cases as to the remedy of one owner of a party-wall against the other hardly seem in point. Cubitt v. Porter, 1828, 8 B. & C. 257 (see also Wiltshire v. Sidford, 1827, 1 M. & R. 404), is inapplicable, unless Doe and Morrell were tenants in common. But partition had already been fully made between them; and their interests would seem to be several, though each had a right to make beneficial use of the other's part for certain purposes. Matts v. Hawkins, 1813, 5 Taunt. 20, may be dis- tinguished, on the ground that Morrell did not remove any portion of the building that stood on Doe's land. In Curleton v. Cate, 1875, 56 N. H. 130, 136, Cushing, C. J., said: "... If the case required it, I should be inclined to hold that the differ- ence between trespass and case has now become matter of form, and to permit the form of action to be changed by amendment." 262 STRAFFORD. Dame v. Twombly. STRAFFORD, FEBRUARY TERM, 1809. Timothy Dame v. Peter Twombly, Defendant in Review. A defendant, who filed a set-off, had a verdict for a balance of $2.36. He remit- ted $2.26, and took judgment for 10 cents. Upon review, brought by the original plaintiff, the defendant had a verdict for $4.60. Held, that the remittitur in the original action did not bind defendant, so that he could not recover more on the review ; and that he was entitled to execution for $4.40. This was assumpsit on account annexed to writ. Defendant pleaded non-assumpsit, and set-off. At the former trial, February Term, 1808, jury gave defend- ant, Twombly, balance, $2.36. He remitted $2.26, and took judgment for 10 cents, and costs. [The original plaintiff, Dame, then brought this review.] At this Term, jury gave defendant balance, $1.50. Per Curiam. Twombly must now have execution for $4.40, and costs of review. He is not bound by the remittitur at February, 1808, so that the jury could not give him more. Of the sum they have now given him, he has received 10 cents only; that must be deducted. The only effect of the remittitur was, that the verdict, instead of being for defendant, $2.36, stood 10 cents. Execution awarded accordingly. APRIL TERM, 1809. 263 Steele v. Warner. HILLSBOROUGH, APRIL TERM, 1809. Moses Steele v. Daniel Warner and John Warner. Bail cannot take the principal out of the jail limits (where he is in execution on another judgment), for the purpose of surrendering him in discharge of the bail. A debtor in execution, in order to obtain the liberty of the jail-yard, gave a " prison bond," with surety, conditioned that he should remain a prisoner within the jail limits until lawfully discharged. Subsequently, the debtor was carried out of the jail limits by his bail in another suit, for the purpose of sur- rendering him in discharge of the bail in that suit. Held, that the surety in the prison bond could maintain an action on the case, against the bail, for thus carrying the debtor out of the jail limits. Such action may be brought before any suit on the prison bond, or before pay- ment of the debt. The measure of damages is the surety's liability to the creditor. This was an action of the case, (a) The declaration stated that one Joseph Chattle, at Court of Common Pleas, Rocking- ham, January Term, 1807, recovered judgment, against one D. Swett, for $131.02, debt and costs ; that Swett was com- mitted, on the execution, to the jail in Amherst, and that the plaintiff and one Mellendy (6) were his sureties in bond for the liberty of the jail-yard, penal sum $262.04 ; that the de- fendants, on Aug. 13, 1807 (well knowing the premises), took and carried Swett beyond the limits of the prison-yard ; (c) (a) Qucere. Would not trespass lie ? Hammond, N. P. 17; Hob. 180. (b) Should not Mellendy be joined? (c) Clarendon, Hist. Reb. 277. Secretary of State discharged (or seemed to discharge) a person (papist) in custody of messenger. The papist was then (afterwards) committed in execution for debt. The messenger took him in custody from prison, and carried him, by virtue of his first warrant, to the Secretary. The creditor sued the jailer for an escape. The jailer sued the messen- ger, who appealed for justice to the House of Commons against the Secretary. 264 HILLSBOROUGH. Steele v. Warner. so that the bond became forfeited, and the plaintiff became liable to pay the creditor the debt and costs for which Swett was imprisoned, with ten per cent interest and all charges; and that he has been compelled to pay large sums amounting t0 $ . There was a second count to the same effect. Plea : the general issue. A case was made for the opinion of the Court. All the facts stated in the declaration were admitted, and also that, before this action was commenced (which was Aug. 17, 1807), the plaintiff had incurred expenses in feeing counsel, &c, S3. It was also admitted that, before the prison bond was executed, the defendant, Daniel Warner, and one David Everett had become bail for Swett in Rockingham, which was known to the plaintiff [before the plaintiff] became bail or surety on the prison bond ; that a scire facias issued against them, and was returnable at August Term, 1807, in Rockingham ; that the defendants, finding Swett within the limits of the jail-yard in Amherst, and knowing his situation there, arrested him, and carried him to Exeter, where the scire facias on which Daniel Warner was one of the bail was returnable, in order to deliver him up in discharge of the bail ; that Swett escaped, at Exeter, from defendants' custody, and was not delivered up. Bell, for plaintiff. Atherton, for defendants. The opinion of the Court, at November Term last, was de- livered by Smith, C. J. The question is whether the plaintiff is entitled to recover any thing, and, if any thing, how much, against the defendants. The plaintiff seems to have suffered an injury by this act of the defendants. He has thereby become exposed to pay Chattle the amount of his debt, costs, and charges against Swett. It is a general principle of law that, for every injury, the law gives redress. Upon the general principles of law, therefore, the aetion seems to be maintainable. Peake, N. P. 191. Sometimes the injury is considered as too remote to be APRIL TERM, 1809. 265 Steele v. Warner. the foundation of an action. Here it seems direct. In Tarle- ton et al v. McG-awley, Peake, N. P. 205, it was determined that an action on the case lies, by the owners of a vessel, against the defendant, for purposely firing a cannon at negroes, and thereby preventing them from trading with the plaintiff. Let us inquire whether there is any thing in this case which prevents a recovery, or which takes the case out of the gen- eral rule ; and this will lead us to consider the objections made by the defendant's counsel. I. The defendants contend that the. carrying of Swett to Exeter was no breach of the prison bond. The condition was " that he shall remain a true prisoner in the custody of the jailer, within the limits of the prison, until he shall be lawfully discharged." N. H. Laws, ed. 1805, 127. If he is found out of the limits, it is an escape, unless brought out by habeas corpus or other lawful authority. If he had gone to Exeter to surrender himself in discharge of his bail, it would have been an escape. He could only have been lawfully discharged by the creditor, or by order of law. N. H. Laws, ed. 1805, 81. It is not necessary to determine, in this case, whether a forcible taking and carrying without the limits, by the enemies of the State, would save the forfeiture, as it would excuse the sheriff in case of commitment to close prison. As it respects Chattle, the plaintiff stipulated against the voluntary or negligent acts of Swett, against any acts of his which prevent his remaining a true prisoner, and against all acts of other persons, except Chattle himself. It would have been no justification to the sheriff that the debtor was forcibly taken, except by public enemies, from his custody. The bond is substituted in the place of the sheriff's responsibility, and is equally broad and equally beneficial for the creditor. If such a taking would save forfeitures of prison bonds, there would be few forfeitures and few prisoners in the jail-yard. Credit- ors would have miserable security for their debts. There is not so much as a color of pretence for this objection. II. It is contended that Swett has no remedy against the defendants for this act ; and, if he has none, his surety has 266 HILLSBOROUGH. Steele v. Warner. none ; and that the surety has no remedy except against his principal. I am inclined to think that both the major and minor prop- ositions in this syllogism are unfounded. Why has Swett no remedy ; supposing the carrying away to be against his will? It must be because Daniel Warner was his bail, and the bail may take the principal wherever he can find him. The gen- eral doctrine is that the bail may take the principal at any time, and surrender him in discharge of his liability. Indeed, the principal is supposed to be in the friendly custody of the bail. But this, like all other general rules, has its exceptions. Suppose the principal sick ; suppose the government has him in custody, to be sent out of the country under the alien act or any other such act ; suppose he is in custody of the law on a criminal charge or under sentence ; suppose him in execu- tion at the suit of a private person ; in custody of an officer on arrest ; in custody of other bail, who were going to surren- der him. 6 T. R. 50, 246; 7 T. R. 517; 7 G. Bacon, 401. Will it be contended that bail could justify breaking open the prison and rescuing principal from the custody of an officer ? 1 G. Bacon, 345 ; 7 T. R. 226. In most, if not all, of these cases the bail has remedy. His discharge (an exontretur) may be entered on the record without producing the body in court. An instance of this kind occurred in this county, May Term, 1795, at Hopkinton ; the sheriff agreeing that the debtor was in his custody in the jail at Amherst. The reason why an exoneretur is entered in the absence of the principal, or why a habeas corpus is necessary, is because the bail cannot lawfully take the principal. In this case, though the sheriff is not liable to any action for the escape of Swett because [he] has the liberty of the yard (Laws, 127), yet Swett is considered, all the time, as a prisoner in the custody, guard, and safe-keeping of the jailer, as much so as if his body were in close prison. The defendants had no more right to take Swett from the limits than from close jail. It is conceived that a habeas corpus is equally necessary to remove a prisoner from the rules or jail -yard as from close prison. Semble, 3 St. Tr. 108 ; 1 Law C. P. 42, 43. The bail has a right to take and sun-en- APRIL TERM, 1809. 267 Steele v. Warner. der the principal when they lawfully may take him ; but they cannot abuse his person ; they cannot carry him out of the government ; they cannot take him from the custody of the law, or subject another, who has the lawful custody of him, to damage. Steele has as much right, to say the least, to have Swett's body remain at Amherst, as the defendants have to have it at Exeter. The bail cannot, in vindication of their rights, compel Swett to do an unlawful act, — to escape from prison. Cro. Eliz. 293. Suppose him in execution at the suit of a creditor for $10,000. If bail for $100 may take him from the limits, they may expose S. ultimately to a great loss, the payment of ten per cent on the $10,000. It is not, then, true that Swett has no remedy, in any case, against the bail, for taking and surrendering him in discharge of themselves. Let us examine the other proposition, — that Steele, the surety, has no remedy which the principal has not. The surety in a prison bond has an interest in the safe-keeping of the principal. Suppose the prison-keeper and the prisoner forge a discharge from the creditor, on which the prisoner goes at large. Would not the surety have remedy against the prison-keeper, and yet the principal would not ? It is said surety has no remedy except against the principal. It is true he has a remedy on contract against his principal, when com- pelled to pay the debt to the creditor. Perhaps he might even maintain an action for a tort merely for the voluntary act of leaving the limits, whereby he is exposed to eventual loss. With respect to a stranger who should subject the surety to the payment, or expose him to the same eventual loss, he can have no action on contract ; but why not an action for the damage ? A man may have an action or remedy against one man for an injury done him, and against another man for causing that injury to be done. 1 G. Bacon, 50. Steele may recover, in contract or tort, damages against Swett, for the escape, and in tort, against the defendants, for causing the escape. When the prisoner is in close prison, as the sheriff is answerable to the creditor for an escape, he has his remedy against the prisoner, in case he rescue himself ; i. e., in case he 268 HILLSBOROUGH. Steele v. Warner. escape. His action will be founded on contract. So, where the prisoner has the liberty of the yard on bonds, if he escape, the surety has his remedy on the implied contract. Cro. Eliz. 53, 137, 264, 293. Stat. 124 ; 2 Swift, 114. If the debtor be in close prison, and any person rescue him, or take him from thence, without authority of law, the sheriff has his action, against such person, for the wrong done him, exposing him to the creditor's action. We have seen that the bond is in lieu of the sheriffs responsibility. The sureties stand in the place of the sheriff; they become answerable to the creditors, and the sheriff ceases to be so. Why, then, should not the sureties have the same remedy against a rescuer, a person who wrong- fully exposes them to the action of the creditor, as the sheriff would, have in the like case ? They have the same interest in the safe-keeping as the sheriff had, and the damage to them is the same. Bail and sureties have similar remedies. Suppose, while defendants Were carrying Svvett to Exeter to surrender him, a stranger had rescued him from their custody. Can it be doubted that they would have a remedy for this wrong? What would they think of the doctrine that their only remedy was against Swett, and, if he were confederate with the rescuers, and consequently could not maintain any action against them, therefore the defendants could not? It has been determined that the creditor, on rescue of his debtor on mesne process, may sue the rescuers ; for he hath loss thereby. Cro. Jac. 419, 485. He cannot have an action against the sheriff, and it is reasonable he should have it against those who did the injury. Here Steele stands in the place of the creditor. This injury is done to him, for he has thereby become answerable to the creditor. III. In case defendants are liable to Steele in any event, it is said they are not liable in this action, because, at the time it was commenced, the debt was not paid to Chattle, and it may be that Swett himself will pay, or that Chattle may never sue, or, if he does, may not recover. In the case of Gould et al. v. Green, in this Court, two years ago, 8 Manuscript Reports, 175 (7 G. Bacon, 205), it was decided that bail who had been sued, but who had not paid APRIL TERM, 1809. 269 Steele v. Warner. the debt, could only recover nominal damages ; a mere liabil- ity of bail or surety to be sued, for the default of the princi- pal, gives no cause of action ; actual suit gives remedy only for the damages actually sustained. But there the action was for breach of contract of indemnity. The damages must be the damages sustained, that is the damnification ; but this is not an action, by the surety, against the principal, on contract, but against a stranger for a tort. It has been repeatedly de- cided that the sheriff may sue the prisoner escaping, before the sheriff has paid the money. This was decided in The Sheriffs of Norwich v. Bradshaw, Cro. Eliz. 53. It was an action upon the case for a tort (ut semble) (Cro. Eliz. 123, 124. The action was assumpsit). Per Curiam. "An action lieth, for the escape, by the sheriffs, before the party sue them ; for the party arrested did wrong to them by the escape and rescous, and they are always chargeable to the creditor ; and, if they stay till they are sued, perhaps the party that escaped may die in the interim, or will fly the country, that they cannot hear of him. The party shall not take advantage of his own tort." The same point was afterwards decided in Salterton $ Affely v. Payne, Cro. Eliz. 237, 349 ; W. v. T., Cro. Car. 187 ; Com. Dig. Escape, E. 185. The damage to the plaintiff is the liability incurred by plaintiff in consequence of defendants' unlawful act. The plaintiff is entitled, for the reasons mentioned, to the same remedy the sheriff would have when the rescue is from his custody ; and surely the same remedy lies against a stranger as against the prisoner. Indeed, in the latter case, the reasons for the action, and why it should lie immediately on the wrong done, are much stronger. The damage to Steele is what any reasonable person, calcu- lating on all the circumstances, would take to stand in his shoes. The cause was continued, to ascertain the damage by jury. The Chief Justice said that, though he had no doubts, yet, as Judge Livermore had, at last Term, and as he was not now present, he was willing to hear what could be urged for defendants at next Term. 270 CHESHIRE. Proprietors of Cornish v. Kenrick. At the next Term (the present) the parties agreed that the debt due Chattle should be the damages, and submitted it to the Court to say whether interest should be cast at six or ten per cent. Per Curiam. Ten per cent might be given ; but, under the circumstances of this case, let the interest be six per cent. CHESHIRE, MAY TERM, 1809. Proprietors of Cornish v. Ariel Kenrick. Proprietors of common lands can convey by vote. Semble, no statute required the particular matters to be done at proprietors' meet- ings to be inserted in the notification. This was a real action, to recover land in Cornish. Plea : the general issue. At May Term, 1808, a verdict was given for the plaintiffs, subject to the opinion of the Court on a case stated. The defendant relied on certain votes of the proprietary, whereby he alleged that the plaintiffs, who were once the owners of the demanded premises, had parted with their title. The plaintiffs raised several objections as to the validity and effect of these votes. Only so much of the opinion is here re- ported as bears on two of these objections. 1 Smith, C. J. I. To show that plaintiffs have not departed with their title, it is said, by their counsel, that they can only convey by deed ; they are not a corporation for any purpose, but mere tenants in common of the undivided land in Cor- nish ; and, inasmuch as no deed is shown, the title still remains in them, and they are entitled now to recover. 1 Statement of case by compiler. MAY TERM, 1809. 271 Proprietors of Cornish v. Kenriok. It is certain there is nothing in the grant or charter of Cor- nish, which, in express terms, makes the grantees a corpora- tion. Indeed, in the same instrument, the persons who shall inhabit within the limits of Cornish are constituted a body politic. This creature called a propriety is peculiar to New England ; we find nothing like it in Great Britain. It is co- eval with the grant of this country, and our towns are framed after the model of the ancient State or Commonwealth. A large tract of country was granted to a number of persons. To them belonged the right of soil. To the same men, by the same instrument, were granted the powers of government. This large tract of country was the Province or Common- wealth. When a town was granted to certain individuals by name, these persons were proprietors of the soil, and had also the powers and privileges of a town. The latter powers could only be exercised by a corporate body, and, therefore, without any aot of incorporation, the grantees were deemed and taken to be a corporate bod} r in the same manner as the whole State, i. e. the owners of the soil, were a body politic, and exercised powers of government upon a scale somewhat larger, indeed, than those exercised by towns. The land comprehended within the peninsula now called Boston was granted, by the General Court of Massachusetts, to certain individuals by name. These were not incorporated, but the very grant of a parcel of land large enough for a town, to a number of per- sons, was considered as constituting them a propriety, — a body with town privileges. It was necessary they should have a name ; accordingly we find it voted, by the Governor and assist- ants of that day, that Tramontane, the vulgar name, be called Boston ; and this is the only act incorporating the capital of Massachusetts, and the first town in New England. When lands were granted to a number of individuals, they acted as a corporation, both as it respected the improving, dividing, and disposing of the soil, and the government of the inhabi- tants. The freeholders, owners of the soil, were freemen and members of the corporation. They were voters, and the only voters, in the corporate body. When a person was made free of the corporation, or, in other words, received as a member, 272 CHESHIRE. Proprietors of Cornish v. Kenrick. he thereby became interested in the town property and town privileges. In process of time, when lands were granted on speculation, and not merely for settlement, the propriety and town began to be viewed as distinct bodies. AH inhabiting within the limits of the territory granted were constituted a corporation, endowed with the franchises and privileges of towns. The powers of government were vested in this body. This body comprehended some, but not all, of the proprietors of the soil ; and many who owned no lands were members of the town cor- poration. The proprietors of the soil ceased to possess any powers of government, but they still retained as many of their corporate powers as were necessary or useful, — such as the corporate power of managing, improving, dividing, and dispos- ing of the soil. N. H. Laws, ed. 1805, 191. This was the law when Cornish was granted, and had been so for more than half a century. The grantees were a body politic (Laws, 191), for the purpose of managing, improving, bringing forward the settlement by clearing out roads, erect- ing bridges, mills, &c, dividing their lands, or disposing of them to others. They acted not as individuals, as tenants in common, but as a corporate body, by majority of votes. They held meetings ; voted to raise money ; assessed taxes on their lands, even after divided ; made roads ; built mills ; com- menced and defended lawsuits ; divided their lands into lots ; appropriated certain parcels to public uses ; made extra grants to individual proprietors and to strangers, whenever, in the opinion of a majority in open meeting, the good of the propri- ety would be promoted thereby. By the same instrument which granted the soil, the persons who should afterwards in- habit within the limits described were invested with the powers of towns; but they had no control over the soil, as towns had at the first settlement of the country, and for some time afterwards. This I conceive to be the origin of proprieties. They are a corporation of a peculiar kind, and with very limited powers. The share or interest of a member was grantable by deed ; it was devisable and descendible. But I believe it never was MAY TERM, 1809. 273 Proprietors of Cornish v. Kenrick. holden that it could be taken for debt, or levied on. When the propriety had divided, or granted away, all the soil, it would seem that the corporate power ought to be considered as ipso facto dissolved. But this does not seem to have been the case. At least, statutes provided for the exercise of cer- tain corporate powers after partition. Temporary Acts, 15, 37, Prov. Law. It is not easy, perhaps, to determine when the corporate powers of a propriety cease. They do not cease when the town powers commence, or come into exercise. They cease when the object in view, by creating them, ceases ; i. e., when the tract of land is so managed, improved, &c, as no longer to require their continuance. The act of July 3, 1781, 191, provides that proprietors of townships and tracts of land, after division and severance among the proprietors, may levy taxes on the lands so severed and allotted to particular individuals, for the purpose of fulfilling the terms and condi- tions of the grant or charter. If it be inquired where the doctrine I have stated is to be found, I answer, in the records of New England, in the deci- sions of courts. These powers are implied, and these doctrines recognized, in various statutes ; but our statutes do not create proprietors of a township or large tract of land a propriety, or corporate body with corporate powers ; they do not define their powers. They existed before we had any statute on the subject, at least any that can now be found. Our statutes are framed on the idea that proprieties existed with certain cor- porate powers. The act of May 13, 1718, Prov. Law, 71, regulates proprietary meetings. This does not authorize pro- prietors to meet and do certain acts at their meetings ; it is implied that they may meet, and, as a corporate body, do cer- tain acts. It does not give corporate powers ; it implies that they already have them. An act of the same date, p. 112, declares that proprietors may sue and defend, either by them- selves or their agents or attorneys, and authorizes them to choose agents at any meeting orderly warned. It also pro- vides how process shall be served on them. In the year fol- lowing (May 2, 1719, 136, 137), in an act for regulating townships, choice of town officers, and setting forth their pow- 18 274 CHESHIRE. Proprietors of Cornish v. Kenrick. ers, the third section enacts, "that the proprietors of all undi- vided or common lauds are empowered to manage, improve, divide, or dispose of the same, as hath been, or shall be, con- cluded and agreed on by the major part of the proprietors." (a) The preamble of the Temporary Act of 1 Geo. III. T. L. 25, says the laws in force imply that there is law for raising and levying money upon the rights of proprietors of lands held in common in a summary way. This act, and the subsequent ones, before the Revolution (Temporary Laws, 15, 37 ; State Laws, ed. 1805., K»0, &c.), make similar provision on the sub- ject of proprieties, as the laws now in force. Our statutes only modify the power of proprieties; they do not confer it. (See Hutch. Coll. Papers, 167 ; Mass. Hist. Coil. VI. 236, 237.) But enough has been said to show that the present objection is not well founded. It always has been the usage, in this State, for proprietors to convey by vote, and it is too late to object to the legality of such conveyances. Though proprie- ties are a corporation for certain purposes, they are a corpo- ration sui generis. Like the ancient towns, they may convey lands by vote. The lands granted in early times were not granted under the seal of the company, but by vote. It was held that the patent did not require that there should be a corporation seal, but that the manner of disposing of their lands was left at liberty of the General Court. 1 Hutch. 323, n. This conveyance of lands by vote is a part of the New England common law. Our statute of 1718 expressly declares, in affirmance of this common law, that proprietors of common and undivided lands may dispose of them as shall be concluded and agreed on by the major part of the proprietors. The former, as well as the present, law, provides that proprie- tors, at any legal meeting, may confirm conveyances by them intended to have been made. Temporary Laws, Prov. 16 ; State Laws, ed. 1805, 190. I have gone thus far into the subject, not from any doubt I (n) The same act recognizes certain customs and usages of towns ; powers of towns to grant lands. It is made the duty of the town clerk to record such grants, &c. MAY TERM, 1809. 275 Proprietors of Cornish v. Kenrick. entertain of the legality of proprietors conveying their land by vote, but to show that much of our law rests on the early customs and usages of New England, (a) II. [The next point relates to the admissibility of a record not attested by any person. It was hold, that records of pro- prietors' doings, though not attested by any clerk, may be received in evidence against the proprietors, if there be sufficient evidence of their genuineness: the attestation of a clerk is not indispensably necessary to establish a valid record. S. P. Adams v. Stanyan, 24 N. H. 405, 410.] III. r T t was next held, that, at a great distance of time, say thirty years, it would be presumed, as against the proprietors (nothing appearing to the contrary), that proprietors' meetings were legally warned and held. See Cobleigh v. Young, 15 N. H. 493.] IV. A fourth objection is that the proceedings, if they can operate as a conveyance or estoppel, if properly authenticated, and if the meeting were duly warned, still are not binding, because the subject-matter of the votes was not inserted in the notification. If it be not necessary to produce the warrants or notifica- tions, or copies of the ori ;inals, and to prove the notice actu- ally given, how can wi say whether this objection is well founded in point of fact, r not ? We cannot tell whether the intent and design of the meeting was inserted, or not. And, though it is certainly reasonable that whatever is to be dis- cussed at a meeting should be inserted in the notification for calling the meeting, and especially that all proposed grants of land should be specified, yet it is equally reasonable that pro- prietors should, in a reasonable time after grants made, where no such notice was actually given, except, or make their objec- (o) If conveyance is not valid to pass the land, it may still estop the proprietors from recovering in ejectment. See New Boston v. Ualch, 12 Manuscript Reports, 327. How is a proprietary constituted? There must be a grant of a township or large tract of land. It seems the grant need not be by the supreme power; for grantees of townships by Masonian proprietors are proprietaries. It must be to two in unequal proportions, or to more than two. 276 CHESHIRE. Proprietors of Cornish v. Kenrick. tions, to the legality of the proceeding. If the} T make no objection, but peaceably acquiesce under it, it is reasonable to suppose that they waive the irregularity in the notification. The act of 1718, " for the better regulation of town and proprietary meetings," p. 72, provides " that no matter or thing shall be voted or determined at a town meeting, called at the request of a certain number of freeholders, but what is inserted in t lie warrant." And the act of 1791 enacts "that nothing done at a town meeting shall be valid, unless the sub- ject-matter thereof shall have been inserted in the warrant for calling the meeting." I have met with no similar provision respecting proprietary meetings. It is provided in the act of 1760, re-enacted in 1781, " that, where no particular method has been agreed upon by proprietors for calling their meetings, a justice of the peace, upon the application of the owners of a certain number of shares, expressing, in writing, their desire that he would notify and call a meeting, and the end and design of it, shall issue a warrant or notification for a meeting, — among other things setting forth the business to be transacted." It is not said that this shall be done at every meeting ; nor that nothing shall be valid when this is not inserted, as in the case of towns. It is certainly remarkable that the statute of 1718, which was made for the regulation of town and proprietary meetings, should provide for inserting the design of the meeting in the notification for town meetings, and should omit proprietary meetings. Besides, the end and design of the meeting, spoken of in the statute of 1781, is a phrase of a very general nature. It is believed that proprietors have not generally conceived that it was necessary to insert the particular matters to be transacted at the meeting in the notification ; at least that this was the case in former times. I know one proprietary, who have granted many lands, where the custom was to propose a grant in one meeting and to make it at the next, or at an adjournment of the same meeting. I allude to the Proprietors of Old Dunstable. See Proprietors of Old Dunstable v. Blood, 6 Manuscript Reports, 143-161. Pro- prietors of Peterborough — Qucere as to Masonian Proprietors. MAY TERM, 1809. 27' Proprietors of Cornish v. Kenrick. The first notification (for the meeting in 1763) expresses as the design of the meeting, inter alia, to choose a committee to lay out any tracts of land to any particular persons, and to do any thing else which the proprietors may think will be for the benefit of the town. This is a general account of the business to be transacted at the meeting. Prov. Law, 15. At this meeting, a method was agreed on for calling meetings in future, in which it is required that the reason, or reasons, for calling the meeting, be fully expressed in the notification to be posted up. I think we are bound to presume that this regulation was complied with. But, inasmuch as the statute does not make what is now insisted upon indispensably neces- sary to the validity of the proceedings, I am not prepared to say that the grant is void without it ; or that the plaintiffs can, at this distance of time, take advantage of it. [Three other objections taken by the plaintiffs were then considered and overruled.] Verdict set aside ; and verdict entered, according to the agree- ment of the parties, for defendant. 1 Judge Livermore, who was absent, concurs ; and Judge Wingate, who was present, says he entirely agrees. 1 The doctrine that proprietors of common lands can convey by vote has repeatedly been recognized. Richardson, C. J., in Coburn v. Ellen- wood, 1827, 4 N. H. 99, 101, 102; Atkinson v. Bemis, 1840, UN. H. 44; Little v. Downing, 1858, 37 N. H. 355. See also, as to proprietaries, Parker, C. J., in Wells v. Burbank, 1845, 17 N. H. 393, 403, 404; Eastman, J., in Forsailh v. Clark, 1850, 21 N. H. 409, 416, 417; Proprietors of Sunapee v. Eastman, 1855, 32 N. H. 470; Eastman, J., in Corbett v. Norcross, 1857, 35 N. H. 99, 114; Bell, J., in Willey v. Portsmouth, 1857, 35 N H. 303, 310; South Hampton v. Fowler, 1872, 52 N. H. 225 (s. c. 54 N. H. 197). 278 CHESHIRE. Holden v. Reed. N. Holden, Administrator of William Henry, v. Elijah Reed. B., 0., P., and R. unlawfully caused H. to be arrested, and compelled him to pay money to obtain his release. H. brought assumpsit, tor money had and re- ceived, against B. only, and had judgment to recover hack the payment. While a suit was pending against the bail of B., to obtain satisfaction of this judgment, II., at the request of B., brought an action, for money had and re- ceived, against K., which was to be prosecuted at B.'s ri>k, and lor his sole benefit. Held, that the latter action was not maintainable. Assumpsit for money had and received to the use of the intestate, June 3, 1805. Plea : the general issue. The parties agreed on a statement of facts, in substance as follows : — June 3, 1805, Bigsby, Oaks, and Patterson arrested the intestate at Charlestown, on an advertisement signed by de- fendant, alleging that defendant had arrested the intestate in Vermont, and that he had escaped from his custody (defendant was a constable in Vermont). They carried Henry to Ver- mont, to Reed, where he was compelled to pay 811 to obtain his release from imprisonment. Before the present action was commenced, the plaintiff had recovered judgment against Bigsby, in an action like the present, for $11, for the same cause of action. The money is not yet paid ; but a suit is pending against the bail of Bigsby, to obtain satisfaction of that judgment. The present suit is brought in the name of Holden, administrator, by Mr. Briggs (the attorney who pros- ecuted Bigsby), at Bigsby's request, at his risk, and for his sole benefit. Bigsby lives in Vermont. The opinion of the Court was now delivered by Smith, C. J. The question, on these facts, for the opinion of the Court, is whether the action is maintainable. Independent of the judg- ment against Bigsby for the same cause of action, the defend- MAY TERM, 1809. 279 Holden u. Reed. ant is liable. The question is whether that recovery is a bar. In actions founded on contract, where several persons are bound to do the same thing, to pay the same debt or perform the same duty, full satisfaction by one is a complete discharge to all. The creditor is entitled to but one satisfaction from all the contractors, whether their engagement was joint, or joint and several. A release to one is a release to all. 3 Burr. 1345 ; 2 Show. 441, 449. So, if several persons jointly commit a tort, — as it is but one injury, though committed by several persons, — the injured party shall have but one satisfaction from them all. A release to one is a discharge to all. It seems formerly to have been questioned whether judgment and satisfaction by one joint trespasser was a good plea in bar to an action for the same trespass, brought against another. Cro. Eliz. 30. But the law is now well settled that it is a bar. 6 G. Bacon, 612 ; Esp. 319 ; Co. Litt. 232 a ; 5 T. R. 649 ; Cro. Jac. 73, 338. But in contracts which are joint, and not several, the plaintiff must sue all ; i. e., all joint contractors must be made defendants, otherwise the defendant may, by pleading the non-joinder, abate the writ. 1 Wms. Saund. 291 &, n. 4. If the contract be several as well as joint, the creditor has his election to sue all in a joint action, or to have a several action against each. But he cannot treat the same contract as both joint and several at the same time. He cannot sue all and one or two out of three joint contractors. 1 Chitty, PI. 30. If he do, they may plead, in abatement, that the third is not named defendant with them. If they do not plead it in abatement, he cannot afterwards sue the third ; because, by suing two, he proceeded upon the contract as a joint one, and there can be but one action on a joint contract. 1 Wms. Saund. 291 e, n. (a). 1 (a) Joint contract ; several defendants liable; one omitted. lie cannot afterwards be sued; he is discharged. Cro. Jac. 73, 74; Com. Dig. Action, K. 4; 1 Chitty, PI. 30. 1 As to the above statements, relative to remedies upon joint and several contracts, see 1 Chitty, PI. 50; Freeman on .Judgments, § 235; citing authorities pro and con. There are marks on the manuscript, from which it might possibly be 280 CHESHIRE. Holden v. Reed. If several persons, — for example, four, — jointly commit a tort, or do a joint injury, the plaintiff has his election to sue all, or any number, of the parties ; because a tort is, in its nature, the separate act of each individual. He may sue one, two, three, or all. Those sued cannot plead that others are omitted ; because each is liable for the whole, and the plaintiff may consider it as the sole act of all, one, or more, of the actors. The law will not favor one jointly concerned in a wrong done as it does one jointly contracting. In the latter case, the one sued may have the benefit of the other joint contractors in the defence, if he please. But, in the former case, any one or more of the wrong-doers shall be compelled to answer for the whole. The law will not allow him to say that he did the in- jury jointly with others ; and he is not allowed to have contri- bution, as joint contractors may. Selw. N. P. 67 ; 8 T. R. 186. But the injured party can have but one action. He cannot afterwards, in another suit, charge the same act or injury to another. A recovery against one is a bar to an action against another for the same cause. The remedy for torts is joint, and not several. It is single, and not double. 1 Wms. Saund. 291 a, n. ; 5 T. R. 649 ; Esp. 317 ; 6 G. Bacon, 589 ; 3 Burr. 1353 ; Com. Dig. Action, K. 4 ; Cro. Jac. 73 ; Moore, 762; Kyd, 112; 3 Mod. 86; Co. Litt. 232, and n. 1. (a) (1 Tidd, 556, seems contra.') If the law were otherwise, where an injury was committed by twenty persons, the injured party might maintain twenty actions for the same cause, in order that he might multiply his chances for large damages. This would be granting him a favor at the expense of the public, who must suffer the inconvenience, trouble, and ex- pense of twenty trials for one and the same injury. The defendants could not prevent this excess of litigation by tender (a) Where several are concerned in a tort, the recovery against one will be a bar (generally) to an action against the others. 1 Chitty, PI. 70, 77; Cro Jac. 74; Com. Dig. Action, K. 4; 2 B. & P. 70, 71; 1 [Wms.?] Saund. 207 a; Bull. N. P. 20. inferred that the writer intended to erase the words " all and." In the first draft of this opinion (found in Judge Smith's files) the sentence reads, " He cannot sue two out of three joint contractors." MAY TERM, 1809. 281 Hulden v. Reed. of damages, as they generally may in the case of several suits for one debt. There could be no tender till judgment ; and the plaintiff may not take judgment in one till he has obtained verdicts in all, and then take judgment on the verdict for the highest damages, and costs in all the suits. One reason given for the difference between actions arising ex delicto, where each is answerable for the whole, and actions on joint and several contracts, where each is answerable for the whole, is that, in the latter case, the debt or duty is sup- posed to be certain. Each binds himself that he will pay the creditor a certain sum, or perform a certain duty. But dam- ages for a tort are altogether uncertain till reduced to a cer- tainty by a judgment. In this case, the judgment changes the nature of the demand, and the law will not suffer a certainty to be given up for an uncertainty. Com. Dig. Action, K. 4 ; 2 Show. 441, 494. There is also another reason why the same cause of action should not be the subject of several trials ; namely, that different verdicts may be given, which would bring scandal on the law, which delights in certainty and uniformity. If these principles are correct, they are decisive against the present action ; whether we consider it as arising ex contractu, which is the shape it takes in the declaration ; or ex maleficio, which is the case stated. These four persons jointly extorted from the intestate $11, or they jointly received that sum to his use ; for, as they all assisted in compelling payment, they may be all said to receive the money. An action has been commenced on this contract, or for this injury, and a recovery had. (a) If considered as a tort, the plaintiff has made his election in suing Bigsby, and cannot sue the others for the same cause. He might have sued all or any number of the parties. But now, his uncertain demand is reduced to a certainty; his cause of action has passed in rem judicatam ; and he shall not any more vex courts of law with redressing this injury done to William Henry. We come to the same conclusion, if we consider this action (a) In the case of tort, it is not necessary that execution should been issued in the first action. 6 G. Bacon, G13. have 282 CHESHIRE. Hol.len v. Reed. as founded on contract. It was a joint, not a several, contract. The plaintiff shall not now be heard to say that Reed alone was answerable ; that it was his several contract. There can be but one judgment on a joint contract. Thai judgment has given. If it had been against the plaintiff, he shall never agitate the merits again. If in his favor, he has all the law allows him. By omitting to sue Reed, he discharged him. It would be otherwise, if Reed were severally as well as jointly liable. The pendency of an action against one of several jointly liable may be pleaded in abatement by another, when sued afterwards. This is the case in tort. 6 G. Bacon, 589; 1 Campb. 60, 61. This action being brought at Bigsby's request, and for his benefit, makes no difference. It does not give Holden a right to sue, if he had no such right independent of that circum- stance ; nor shall it prejudice the defendant. Judgment for defendant on nonsuit. 1 1 I. A judgment against one of two joint contractors, although unsatis- fied, is a bar to an action against the other. King v. Hoare, 1844, 13 M. & W. 494 ; 2 Kent, Com. 389 a. The contrary decision of the Supreme Court of the United States in Sheehy v. Mandeville, 1810, 6 Cranch, 253, would not now be followed in that court. See Field, J., in Mason v. Eldred, 1867, 6 Wall. 231, 236-238. For an exception to the general rule, see Olcott v. LittU , 1S:>S, 9 X. H. 259. II. In England, it is now settled that a judgment against one of two joint wrong-doers, although unsatisfied, is a bar to an action against the other for the same cause. Brinsmead v. Harrison, 1S72, L. R. 7 C. P. 547; affirming L. R. 6 C. P. 584. The weight of American authority is the other way. Lovejoy v. Murray, 1865, 3 Wall. 1 (and cases there cited); Elliott v. Hayden, 1870, 104 Mass. 180; Knight v. Nelson, 1875, 117 Mass. 458. In 7 Alb. Law Jour. SI (Feb. 8, 1873), the English- and American cases are reviewed, and the decision in Brinsmead v. Harrison approved. MAY TERM, 1809. 283 Hale v. Vesper. GRAFTON, MAY TERM, 1809. Moses Hale v. Thomas Vesper. A declaration, containing the words "Anno Domini," is not demurrable, on the ground that these words are not in the English tongue. Where a note declared on is stated to have been made payable in nine months after date, it need not be averred that the time has elapsed before the com- mencement of the action. This appears from the date of the writ. Semhle, if the ad damnum be expressed in figures, it is bad on special demurrer. But it was said that an amendment would be allowed without costs. It is a sufficient formal allegation of venue to add, after describing a note dated at C, in Massachusetts, the words " at said Plymouth " (Plymouth, N. H., being mentioned in the writ). Whether an allegation of venue is necessary in transitory actions in this State, qucere. Assumpsit on a promissory note. Demurrer to the declaration, (a) Causes. 1. The declaration contains the following words, in describing the date of the note declared on : " First day of June, Anno Domini eighteen hundred and seven." These words are not in the English tongue. 2. The note declared on is stated to have been payable in nine months from date, and it is not averred that the time had elapsed before this action commenced. 3. That the ad damnum is expressed in figures, and not in words. 4. There is no certain venue expressed in the declara- tion. 5. The note is alleged to have been made payable at said (a) Plaintiff called of C, in Massachusetts. Defendant of F., in Vermont. Qucere, service? 284 GRAFTON. Hale v. Vesper. Hale's, in Chelmsford; and, in the declaration, it is alleged that the plaintiff was ready, at said time and place, to receive payment. This is uncertain. Eastman, for plaintiff. G. Woodward and Hutchinson for defendant. Per Curiam. I. [As to the first objection.] Before our statute of Feb. 9, 1791, 87, and after our statute of June 21, 1701 (Prov. Law, 24), the P:nglish statutes of 4 Geo. II. c. 2G, and 6 Geo. II. c. 14, § 5, which required legal proceedings to be in English, allowed technical words and phrases to be used as they had been commonly before that time. These statutes seem to have been admitted here. Our forms of writs (N. H. Laws, ed. 1805, 79, &c.) have always used the words Anno Domini, for the year of our Lord. If the makers of the statute use them in the formal part of the writ, we see no reason why the plaintiff may not use them in his declaration, which, with us, makes a part of the writ. 1 II. [As to the second objection.] The answer to this objection is, that it appears with sufficient certainty, without this allegation, that the action has not been commenced too soon. The date of the writ is matter of record. Such an averment had better be omitted. In good forms it is omitted. Chitty, 246. III. The third exception is the most material, though it may seem to be a small matter. The English statutes, before mentioned, allow writs, decla- rations, and other proceedings, to be written or printed with the like way of writing or printing, and the like manner of expressing numbers by figures, as have been or are commonly used in courts ; and with abbreviations such as are commonly used in English : so that,,in all cases, it is not necessary that the matter should be written in words at length. 1 See Smith v. Butler, 1852, 25 N. H. 521; Berry v. Osborn, 1854, 28 N. H. 279. MAY TERM, 1809. 285 Hale v. Vesper. Some of our judicial forms prescribed by statute (N. H. Laws, ed. 1805, 75) have the date of the year in figures. In the acts of our legislature, the date or time of enacting is also expressed in figures ; at least, as to the day of the month, and, in ancient times, the month itself, (a) And, we believe, it has not been infrequent for dates to be expressed in figures in declarations. But it has not been usual to express the ad damnum in figures ; and as this is a very material part of the declaration, and there is no usage, as far as we know, for ex- pressing it in figures, and as the statute does not save it, we incline to the opinion that, for this cause, the declaration is bad. But, as this is the first determination on the point, we would allow amendment, without costs, especially as the defendant has had a continuance. IV. [As to the fourth objection.] The fact is not so. The declaration, in this particular, is strictly correct. Chelmsford is mentioned, because mentioned in the note. And " at said Plymouth" (which Plymouth was mentioned in the writ) is added for a venue. In transitory actions, in this State, it may well be doubted whether any venue is necessary; inasmuch as it cannot be changed, and the law has determined in what county the action shall be brought, or given the plaintiff the election between two or more. The trial must be in that county in which the action is brought ; the jury must be of that county. Bringing the action in the county of Grafton is of itself a venue ; and neither in England at this day, nor ever in this State, must the jury come from any particular part of the county. Per- haps, however, the precedents require a venue to be alleged, and the omission may be taken advantage of on special de- murrer. 1 (a) 10th 2 m° [4 month?] 44, means 10th day of April, 1644, in the ancient records of this State, 1680. 1 Griffin v. Huse, Rockingham, February Term, 1808, 10 Manuscript Reports, 305, was an action of assumpsit. The writ described both 286 GRAFTON. Hale v. Vesper. V. [As to the fifth objection.] As to time, it must be understood to mean when the note became payable ; and, as to place, that he was ready at said Hale's, in said Chelmsford, viz. at said Plymouth; because it is before alleged that Chelmsford in Massachusetts is in Ply- mouth in this State ; and once alleging so palpable an untruth, one would think, was enough in one declaration. 1 Wins. Saund. 22 ( J. But, the truth is, this part of the declaration, as also the words " Anno Domini" might have been omitted, as well as that nine months had elapsed in the course of a year. This is surplusage which does not vitiate, even if it were un- certain, which it is not. Defendant default. 1 parties as residents of Rockingham County. Upon general demurrer, the defendant relied on the objection that no venue was stated. '* But The Court were of opinion that the declaration was well enough on general demurrer. By our statute (Laws, ed. 1805, 87), this action — let the contract have been made where it may — must be brought in this county. The plaintiff has no election. And the cause must be tried by a jury of this county. The venue, therefore, is a mere matter of form, and not of substance. Its omission can only be taken advantage of by special demurrer." Demurrer withdrawn. 1 In Berry v. Osborn, 1854, 28 N. H. 279, it was held, that a special demurrer does not lie, under our statute for any defect or want of form only, nor for any error or mistake, where the person and case may be rightly understood by the Court. MAY TERM, 1809. 287 Wilson t\ Eastman. Thomas Wilson v. B. Eastman. New trial granted on terms. Assumpsit on three promissory notes. Writ dated Feb. 17, 1807. Pleas : general issue, and statute of limitations. Replication : new promise. At the trial, last Term, Livermore, J., summed up to the jury. He seemed inclined to think the evidence produced by the plaintiff not sufficient to take the case out of the statute of limitations. The jury found for the defendant. Motion for a new trial. 1 Smith, C. J., at the trial, thought the plaintiff negligent in not producing more testimony, as it appeared, from the cir- cumstances then disclosed, he might easily have done it ; but thought this testimony, if believed, sufficient to remove the bar of the statute ; but he did not state any thing to the jury. At this Term, he delivered the opinion of the Court [to the effect that the testimony at the trial was competent evidence of a new promise]. Verdict set aside on terms; plaintiff waiving review and to tax no costs for last and present Term. A review would not be of any avail, as defendant was of Vermont, and there was bail in this action. 1 Statement by compiler. 288 GRAFTON. Eldridge v. Bush. Ztjar Eldridge v. John Bush and Levi Parks. An imprisoned debtor, who had given bond for the liberty of the jail limits, was entitled to his discharge, if the creditor failed to make payment in advance, for his support. Six weeks before another payment by the creditor would be due, the debtor, with intent to deceive the creditor, and induce him to believe there had been an escape, and so not to advance any more money, gave out, and caused it to be reported, that he was about to go out of the limits to Con- necticut, and on the same day concealed himself in a swamp within the limits, and continued there concealed, without the plaintiff's knowledge, for six weeks, and until the day after the time for making the next payment. The creditor was thereby deceived, and induced to believe that the debtor had escaped, and so.omitted to advance the money for the debtor's support. After the creditor had so failed to make payment, the debtor, claiming that he was for tins rea- son discharged, went out of the limits. The debtor's sureties in the prison bond were privy to this deception and concealment on the part of the debtor. In an action on the prison bond against the sureties, held, that the sureties could not avail themselves of an omission by the creditor, thus induced by the fraud of the debtor, and that the creditor could recover against the sureties for an escape. The opinion of the Court was delivered by Smith, C. J. 1 This is an action of debt on a bond made by defendants as sureties of one Howard Phelps ; with condition that Phelps, who was then in execution at the plaintiff's suit, should con- tinue a true prisoner within the limits of the prison at Haver- hill, until he should be lawfully discharged, without commit- ting any escape until such discharge. The defendants plead performance of the condition by Phelps. The plaintiff, in reply, assigns a breach ; viz., escape from the limits, Oct. 17, 1805, 6 A. m. Defendants, admitting the escape, rejoin that Phelps took the oath prescribed in the act for the ease and relief of per- sons imprisoned for debt, on Oct. 4, 1804, 1 P. M., which was duly certified to the prison keeper ; that he paid past charges, and continued a true prisoner within the limits till Oct. 17, 1 [As the nature of the pleadings appears from the opinion of the Court, a fuller statement contained in the manuscript is here omitted.] MAY TERM, 1809. 289 Eldridge v. Hush. 1805 ; that neither the creditor, nor any person for him, paid, weekly, 112 cents a week for his support, after he took the oath, until Oct. 17, 180") ; and that thereupon he became discharged, and was on the same day discharged by the prison keeper, and went out of the limits as he lawfully might, (a) The plaintiff, in his surrejoinder, admits, by not denying, all that is stated in the rejoinder, but attempts to excuse the non-payment of the money, or, in other words, to show that the debtor did not become discharged on Oct. 17, 1805, notwithstanding creditor's neglect to pay for his support, by alleging that he paid for fifty-four weeks, that is, to Oct. 10, 1805, inclusive : that he was ready, on that day, to pay the allowance for another week, but was prevented by the fraudulent acts of the debtor ; namely, that the debtor, on Sept. 10, 1805, with intent to deceive and defraud the plaintiff of his debt, and to induce him to believe that he had committed an escape, and thereby induce him not to furnish money beyond the fifty-four weeks, i. e. to lodge money with the jailer on or before Oct. 16, 1805, gave out and caused to be reported that he was about to go out of the limits and go to Connecticut, and on the same day concealed himself in a swamp within the limits, and continued there, without the plaintiff's knowledge, till Oct. 17, 1805 ; that plaintiff was, by these means, induced to believe, and did believe, that he had escaped, and so did not pay or advance any more money for the debtor's support ; and to this fraudu- lent conduct of Phelps defendants were privy. 1 To this surrejoinder the defendants demur ; and the question is, whether this matter excuses the non-payment of the money, (a) Should not defendant, in his rejoinder, have stated how long the plaintiff did pay? 1 In the fuller statement of the pleadings, the place of concealment is described as " a certain solitary and unfrequented swamp, within the limits of said prison-yard, distant 180 rods from the prison " The complicity of the defendants is thus alleged: " And the plaintiff further says, that, of the said fraudulent concealment, secretion, aud deception, the said Parks and Bush, the defendants, were then and there, on said tenth day of September, 1805, well knowing, and were privy to the same." 19 290 GRAFTON. Eldridge v. Bush. and induces a forfeiture of the bond by debtor's departing from the limits on Oct. 17, 1805. We will first consider the case as it would be if this plea were by Howard Phelps, or if defendants had practised the fraud to which they are alleged to have been privy; i. e., told the lies stated in the surrejoinder, and concealed, or assisted to conceal, the debtor. On Oct. 4, 1804, the debtor became and was discharged, unless money paid for his support; and, whenever there was no money in advance, he was discharged ; i. e., on de- fault or neglect to pay, on Oct. 16, 1805, 112 cents, the debtor was, in law, discharged immediately after that day had expired, and might lawfully go away, without forfeiting the bond, at any time after twelve that night. But cases may easily be supposed where, by the conduct of the person for whose use the money was to be paid for sup- port, the discharge would not attach, notwithstanding the words of the statute, though the money should not be lodged. Suppose, instead of the money being required to be paid to the prison-keeper for the use of the prisoner, it should have been payable to the prisoner himself, and he had refused to accept it ; or suppose, as the law now is, that the debtor forbid the prison-keeper from receiving it. In these cases, the offer to pay would be equivalent to actual payment. Suppose the money payable to the prisoner himself, and he should secrete himself, so that the creditor could not find him to pay or tender. This would be equivalent to actual pay- ment. Suppose, as the law is, that the jailer and debtor should collude, so as to prevent payment; e. g., the jailer keeping out of the way, shutting up the house, and having no agent at the jail, to whom creditor could pay the money. Suppose the debtor, finding the creditor coming with the money at eleven o'clock, P. M., on the last day, should rob him of the money ; or unlawfully arrest him ; or procure him to be arrested, carried off, and so hindered from paying. Upon every principle of justice, this would excuse the non- payment. The law would not permit the wrong-doer to take advantage of his own wrong, to procure a discharge by such MAY TERM, 1809. 291 Eldridge v. Bush. means, <>r procure his dormant discharge to operate or take effect by such unjust means. The law enjoins on the cred- itor who would detain his debtor in prison every thing he can do to support him ; but, if the debtor refuses the money, the creditor cannot compel him to take it ; or, if the debtor himself prevent the payment, he cannot complain of the non-payment. There is, in that case, no default or neglect (the words of the statute) in the creditor, and there must be such before the prisoner becomes discharged. The case is analogous to that of bail. If they do not surrender the body of the principal, so that he may be taken in execution, they are themselves obliged to satisfy the judgment ; but they may plead, in excuse for not surrendering the principal, that they were hindered from so doing by the acts of the creditor. He shall not, by any acts of his, abridge the rights of the bail. If he does, he shall not take advantage of the want of a surrender. 2 Manuscript Essays, Bail, 209, 211. In the case of Wingate v. Hayes, bail of Heed, decided at Strafford, Sep- tember Term, 1808, 11 Manuscript Reports, 337, it was held, that, where the bail were prevented, by the acts of the creditor, from surrendering the principal, it was a discharge, and might be pleaded in excuse to the scire facias. There the creditor had arrested the principal, and had him in execution, in an action of debt, on the same judgment, in Massachusetts. And yet our statute makes provision only for a discharge by sur- render. The bail are in no fault. The creditor has put it out of the power of the bail to surrender, and therefore shall take no advantage of the want of surrender. It would seem reasonable to say that, if the non-payment happens through the fraud of the debtor, that the same consequences shall follow. Fraud vitiates every thing. 4 T. R. 337. This principle is applied ad hominem. He who is guilty of a fraud shall never be permitted to avail himself of it. If Phelps practised such fraud as prevented the payment of the money for his support, he shall not be heard to complain of the non- pa vment, nor shall he derive any advantage from it ; and he on whom it was practised shall suffer as little injury as possi- ble from' it. Phelps may obtain his release by all legal and 292 GRAFTON. Eldridge v. Bush. honest means, and no means are legal that are not honest. But he shall not obtain his release by fraud. Suppose the debtor practise fraud, to obtain his release from the creditor. Such a discharge would neither avail him nor his sureties ; because the discharge would be void, and a void discharge is no discharge. For the same reason, if he practise fraud to prevent the payment of the money, in order that the discharge may come into operation, the end intended shall not be an- swered, it shall be as though the money had been paid. If this be correct, the only question will be, Whether the sur- rejoinder states facts which, in law, amount to a fraud, facts which may have been presumed to have occasioned the non- payment of the money ? The surrejoinder must state the means by which the fraud was committed ; * *'. e., it must state certain declarations and acts of the debtor which occasioned the non-payment of the money, and it must appear that these means were adequate to produce the effect. 3 T. R. 60. The situation of the parties is to be considered. The debtor was in execution ; and, having obtained a certificate of dis- charge, he was entitled to be liberated from prison, if the creditor failed to pay for his support. But he had no right to bring about or procure that failure, which was to free him from imprisonment, by fraud or deceit. The creditor was entitled to the body of his debtor in execution as long as he should be guilty of no default in the payment of the weekly allowance. The creditor had a right to pay. He has an interest in the payment, which was, in the eye of the law, valuable to him. The law presumes it may have a tendency to procure satisfaction of the debt. If it did not so presume, it would not permit it. It presumes, and that justly, that the tribunal who administered the oath may have been imposed upon. It is lawful for the creditor to retain the body on payment of the weekly allowance, in the same manner and for the same purpose as it was lawful and useful for him to imprison him at first. Imprisonment of the body is a means to compel pay- ment of the debt. It follows that, if any one hinder him, it is a wrong, for which an action would lie. Suppose a stranger i But see Hoitt v. Holcomb, 1851, 23 N. H. 535. MAY TERM, 1809. 203 Eldridge v. Bush. prevent the payment by force or fraud. Suppose a stranger should iu form the creditor, on Oct. 16, 1805, that Howard Phelps had escaped, when he knew he had not. The acts here alleged are false declarations of his intention to commit an escape, made Sept. 10, 1805, and the consequent concealment of his body till Oct. 17, following ; and both are stated, in the surrejoinder, to have been done fraudulently, and with intent to deceive the plaintiff and defraud him of his debt ; or, in other words, to produce neglect of paying the weekly allowance. With respect to the false declarations of his intention to escape, standing alone, I think they would not be sufficient. Though it is immoral to utter a falsehood, yet it is not always actionable. An action cannot be supported for telling a bare, naked lie, knowing or not knowing it to be so, and without any intention to injure and deceive another person. But an action lies for every deceit which injures another. Now every lie is not a deceit, in legal contemplation, though every deceit comprehends a lie. To make a lie a deceit, it must be told with design to deceive and injure a particular person, (a) This was of that description ; but of itself, and independent of the after concealment of the person, it would not be an action- able fraud, because the declaration was of intention merely. The creditor ought not to confide in such declarations alone, unconnected with other acts. The intention never was carried into execution, and never was intended. The declarations made but a part of a system or plan of deception. Suppose the debtor never to have gone beyond the limits, but should (a) See Mr. Justice Buller, in Pasley v. Freeman, 3 T. R. 56. The same judge once laid down the doctrine in broader terms; viz., that, if one man tells another a falsehood, by which he is injured, the deceived person has his remedy by an action. Pearson v. Morgan, 2 Bro. Ch. 389. But it seems now holden that there must be the intention to deceive, or a falsehood is not actionable. See Haycraft v. Creasy, 2 East, 92, by three judges against the Chief Justice, that if a person assert another was worthy of credit, of his own knowledge, when he was not so, yet, if the assertion were made bondjiile, and with a belief of the truth of it, it is not actionable. Three things must concur: a falsehood, told with design to injure, and actual injury the consequence. 204 GRAFTON. Eldridge v. Rush. hire a person to inform the creditor that he had, and should furnish him with circumstances, so that a prudent, cautious man would give credit to the assertion, — we will suppose he even goes so far as to furnish an affidavit of the fact, — the creditor then omits to advance any more money, and the debtor leaves the prison ; creditor sues the bond, and the wit- ness testifies truly. Would not this fraud estop the debtor from availing himself of the default or neglect to furnish money ? Here the debtor procured a falsehood to be told, and it is the same as if he told it himself. We will suppose it done with intention to deprive creditor of his right to retain the debtor in prison, and the creditor injured. Suppose, with the same intention, debtor declares to creditor that he has passed the limits, when he has not ; that the bond is forfeited, when it is not. Upon the whole, under this head, there are falsehoods, which would be a deceit or fraud, and which would estop the debtor from taking advantage of the neglect to pay the money ; but the present standing alone is not of that description. So, perhaps, the mere concealment would not be a fraud, with whatever view it was done. But it is impossible to entertain any doubt that the declaration of the intention to escape and the consequent concealment, coupled together, is an actionable deceit or fraud. If done by a stranger, it would subject him to an action. If by the debtor, it shall not avail him. He shall derive no advantage from it. The three ingredients to constitute a fraud, deceit, or actionable false- hood, concur ; viz., a false declaration, accompanied with the act of concealment, done with an intention to deceive and injure, and actually attended with damage. 3 T. R. 58. (a) It may be said that it was the folly of the creditor to confide in these declarations followed by these acts. We have ad- mitted that it would be so as it respects the mere declarations of intention unaccompanied by any acts. But I think no such (a) To charge defendant for false assertion as to the circumstances of a third person, it must appear that the lie was told for the purpose of imposing on the plaintiff, and that plaintiff, relying on the information, •was deceived. See Peake (Day), 226 and note (cases cited). MAY TERM, 1800. 295 Eldridge v. Bush. folly is imputable to the creditor on the facts stated in the surrejoinder. The creditor had no means of detecting the deceit, or of arriving at certainty. lie would be liable to an action of trespass if he were to attempt to search the whole prison-yard. The prison-keeper may have been ignorant of the matter. I do not know how, in many cases, the creditor could have better or stronger evidence than the creditor, in this case, had of the escape of his debtor. He was not to be seen within the limits for five weeks, and he had previously declared his intention of going away. If it be said the cred- itor might still have lodged the money with the jailer, the answer is, He might have so done, but would a prudent man do it ; was he bound to do it ; had he any motive for doino- it ? After an escape, if he lodged money, I do not know that lie could recover it back. When the debtor has concealed him- self, I think it is, at least, such an act as estops him from taking advantage of the non-payment of the money, which his own acts have rendered apparently useless and unnecessary. Here the creditor did not deceive himself. He was guilty of no negligence ; but the debtor beguiled him, and he did not pay. If the facts stated in the surrejoinder had been traversed, to charge defendants, jury must have found that there was an intention to deceive and injure, that the facts and declarations existed, and that they were followed by the consequence stated, i. e. that they occasioned the default or neglect to pay the weekly allowance. When this is the case, I feel no difficulty in saying that the debtor practised a fraud, and that the cred- itor is not chargeable with gross negligence, or, indeed, with any negligence, in giving credit to the deception, or in beinc deceived. It would be folly in the creditor to neglect payino- because the debtor had, in conversation, said he should forfeit his bonds, or because he did not see him in the jail or yard for a time. But it was not folly to believe that he had escaped, when he had said he intended to go, and actually disappeared, and was not seen for the space of five weeks. The common prudence of man is not sufficient to guard against such deceit. The law does not refuse relief against deceit, in cases where it 296 GRAFTON. Klilrin Cutts v. Frost. [In the pleadings, the charter-party is set out as follows : ] — "This charter-party of affreightment, indented, made, and fully con- cluded upon this second day of September, Anno Domini one thousand eight hundred and ten, between Thomas D. Cutts, of Kittery, in the County of York, and Commonwealth of Massachusetts, merchant, owner of the good schooner George, of the burthen of seventy-four tons, or thereabouts, now lying in the harbour of Portsmouth, whereof George P. Frost is at present master, on the one part, and the said George P. Frost of Newcastle, in the County of Rockingham, and State of New Hampshire, mariner, and Richard Cutts, Jr., merchant, of Kittery, in the District of Maine, on the other part, witnesseth, that the said Thomas D. Cutts, for the consideration hereafter mentioned, hath letten to freight the aforesaid schooner George, with all appur- tenances to her belonging, for a voyage (by God's assistance) to be made by the said George Frost to Martinic, or any other port in the West Indies, that is to say, one-third said schooner to said Frost, and one-third to said Cutts, and back again to this port of Portsmouth, where she is to be discharged (the danger of the seas excepted) ; and the said Thomas D. Cutts doth, by these presents, covenant and agree with the said George Frost and Richard Cutts, Jr., iu manner following, that is to say, that the said schooner, in and during the voyage afore- said, shall be tight, staunch, and strong, and sufficiently tackled and apparelled with all things necessary for such a vessel and voyage ; and that it shall and may be lawful for the said George Frost and Richard Cutts, Jr., their agents or factors, as well at Portsmouth as at Martinic or West Indies, to load and put on board the said schooner a full loading of such goods and merchandise as they shall think proper, contraband goods excepted. In consideration whereof, the said George Frost and Richard Cutts, Jr., do, by these presents, agree with the said Thomas D. Cutts, well and truly to pay or cause to be paid unto him, in full, for the freight or hire of said schooner and appurtenances, the sura of fourteen shillings per ton per month, and so in propor- tion for a less time, as the said schooner shall be continued in the aforesaid service, in thirty days after her return to Portsmouth, and the said Frost and Cutts do agree to pay the charge of victualling and manning two-thirds said schooner, and all port charges and pilotage during said voyage, and to deliver said schooner, on her return to Portsmouth, to the owner aforesaid, or his order. And to the true and faithful performance of all and singular the covenants, payments, and agreements aforeraentioued, each of the parties aforesaid binds 312 ROCKINGHAM. Cutts v. Frost. and obliges himself, his executors and administrators, in the penal sum of $500, firmly by these presents. In witness whereof, the parties aforesaid have hereunto interchangeably set their hands and seals the day and year aforewritten. •• Signed, staled, and deliv- Thos. D. Cutts. [seal.] ered in presence of Geo. P. Frost. [seal.] "Augustus Cutts. Richd. Cutts, Jr. [seal.] " Elizabeth I). Wilcox." [It is believed that the case was argued by Bartlett ; and by Freeman, who cited Havelock v. G-eddes, 10 East, 555.] Smith, C. J. Two questions are made. 1st. Whether an action of covenant can be maintained on this instrument. And, 2d, if it can, whether the facts war- rant a recovery for any portion of the freight or* hire ; and, if so, for how much. 1. If this be not a sealed instrument, covenant cannot be maintained on it. [After discussing the legal requisites of a seal, and holding that writing the word seal with a pen does not constitute a seal, the opinion proceeds as follows:] In this case, even if defendant had signed a written agreement, declaring that this instrument was to be considered as a deed, and the scroll (seal) as wax, and that he would not object to it as a deed on this account, I do not know that we could so consider it. He might, perhaps, admit that there was once a seal, which was broken off, and under such circumstances as to leave the instrument a deed. Here the defendant did not go that length. He declared this to be his seal. But it is not a seal. Suppose he had declared this writing a record. He can no more make it a deed than he can make it a record by any declarations of his. If it has the requisite formalities, it is a deed. Otherwise, it is not. To consider this writ- ing as a deed would be at once to abolish the distinction between writings sealed and writings not sealed. The seal is a matter of substance in law ; it changes the nature of evidence. 2. It is not absolutely necessary to decide the second ques- NOVEMBER TERM, 1813. 313 Cutts v. Frost. tion, whether the facts agreed are sufficient to warrant a recovery of any thing for freight or hire. But, as the Court have formed an opinion, it may save expense to the parties if it is now intimated. All the facts necessary in the case are stated. On this charter-party, the defendant is doubtless lia- ble for one-third of the charges of victualling, manning, the port charges, and pilotage ; but, with respect to the freight or hire of the vessel, the objection is, that his covenant is to pay freight, and that no freight has been earned. It is a condition precedent that the vessel perform the voyage. She was let to defendant to carry his merchandise on this voyage. Defend- ant is to pay, at the stipulated rate, thirty days after the voyage performed. The general principle is (and it applies as well to the char- terer as to the merchant who puts his goods on board a gen- eral ship), that the contract is in its nature entire, and unless it be completely performed by the vessel's arrival at the port of discharge, or the delivery of the goods at the place of desti- nation, the charterer or merchant will, in general, derive no benefit from the time and labor expended in a partial perform- ance, and, consequently, be liable to no payment whatever, although the vessel may have been hired by the month. The contract is to pay, if the voyage be performed, so much per month for the time employed in the voyage. The vessel is at the risk of the owner. If lost on the voyage, the charterer has, ordinarily, no remedy for the loss he sustains thereb\ r . The owner does not undertake, at all events, that his ship shall perform the voyage. But he agrees that, if she does not, he is entitled to nothing for the hire. In the action for the freight or hire, therefore, he must show the voyage per- formed. This is no hardship on the owner ; the price is regu- lated according to this understanding of the rights and obligations of the respective parties. In its nature, the contract to furnish a ship for a voyage, or to carry merchandise to a foreign port, must be entire. A contract to carry goods half way from P. to M. would be absurd. But it often happens (Abbott on Shipping, 315) that a ship 314 ROCKINGHAM. Cutt's v. Frost. is hired by a charter-party to sail from one port to another, and from thence back to the first, at a certain sum, to be paid for every month of the duration of the employment: that is precisely this case. If this is to be considered as one entire voyage, then noth- ing is due for freight. But if the outward and homeward voyages are distinct, freight will be due for the proportion of the time employed in the outward voyage. This question must be settled by giving a reasonable con- struction to the terms of the charter-party. The case of Mackrel v. Simond $- Hankey, Abbott (316), [2 Chit. Rep. 6G6], was held to be of this latter kind, two dis- tinct voyages. From London to Plymouth and the Island of Grenada was one voyage ; from Grenada to London was another. The first was performed, and freight or hire was allowed for the time employed in that; but nothing for the partial performance of the voyage from Grenada to London, because that was not completed. In that charter-party, the outward and homeward voyages were mentioned as distinct, and there were circumstances in the case from which the Court inferred that the parties contemplated two distinct voy- ages. Suppose the charterer Hire the vessel, and send her, or employ her in freighting. Here he has the benefit of the out- ward voyage, and can afford to pay the hire of the vessel for that. In the present case, the parties seem to have contemplated a prosperous voyage out and home. There is nothing which shows that two distinct voyages were contemplated. It is spoken of as a voyage ; nothing is said of an outward and homeward voyage. The whole freight is to be paid in thirty days after the ship's return to Portsmouth. There is no dif- ference in the rate of hire for the outward and return voyage. The nature of the business in which this vessel was employed is such, as appears from the statement, as to make it absurd to suppose the charterer could think of two voyages. The round voyage must be performed before he could derive any benefit. His outward cargo was invested in molasses. If the molasses were lost on the return, what did he gain by the NOVEMBER TERM, 1813. 315 Cutta v. Frost. delivery of the lumber, or outward cargo, at Martinique ? It is not our business to make a contract for these parties. We are only called on to explain or construe the one they have made. But, if we had the power to make a contract for them, I see no ground for making a different one from that which they have made for themselves. I consider the case of Byrne »; STRAFFORD. Thompson v. Bennet. and rejects the rest. In future, there must, in all cases, be a deed, and either acknowledgment and recording, or a certain livery, not any livery, and seisin. The acknowledgment and recording, or livery, were as necessary against the grantor as against others. This provision has the merit of being ex- tremely simple, easy, and cheap, and, I think, complete of itself. From this time, 1652 to 1697, the law respecting convey- ances does not appear to have undergone any alteration. During all that time there was no occasion to have recourse to any English law. In 1697, an act for registering deeds was passed in Massa- chusetts, in substance the same as their present law and ours, with the addition, in ours, of attestation. It is not stated in express terms that a deed with the formalities required by the acts of 1640 and 1652 shall be sufficient to pass land, as is stated in the act of 1697, and present laws. This was con- sidered as common law, and thus much may, perhaps, during all that time, have been borrowed from the Statute of Uses ; but this simple principle was all that was borrowed and retained. It is observable that the act of 1697 is declaratory of the law, that deeds are sufficient to pass lands ; it requires record- ing at length. If the statute had stopped at the declaratory clause, it might have been doubted — as the statute of 1652, made under the old charter, expired with that charter — what portion (if any) of the English common law or statute law was binding in the province. It was, therefore, added, that no bargain, sale, or other conveyance of lands shall be good and effectual in law, to hold the same against any but the grantor and his heirs, unless the deed be acknowledged and recorded ; a deed without acknowledgment and recording is effectual to hold lands against the grantor and his heirs. In the first clause, a deed which is sufficient to pass and hold lands in all cases is described ; but, as the grantor and his heirs are not within the mischief of non-acknowledgment and non-record- ing, they are, therefore, excepted out of the general require- ment. Such a deed as that described in the first clause shall NOVEMBER TERM, 1814. 337 Thompson v. Bennet. be sufficient to pass Lands; no other shall be sufficient to hold the lands, except in the cases of grantors and their heirs such deed, though not acknowledged or recorded, shall be sufficient. The conveyance is not, as it respects them, a clandestine or uncertain one. They want no information of a title which they or their ancestor have parted with. They cannot be defrauded for want of notice. This act of 1697 has, therefore, made three important alter- ations in the law which prevailed under the old charter. 1st. It requires deeds to be recorded at length. 2d. It dispenses with acknowledgment and recording, where the deed is used against the grantor or his heirs. 3d. It repeals the common- law conveyance by livery and seisin, or by delivery of posses- sion. Livery and seisin are now of no avail, unless it may be against grantor and his heirs ; though I think it unnecessary as it respects them, for it would be accompanied with such a deed as the statute describes to pass the land even from these, and such deed is sufficient without the livery and seisin. What has been mentioned is the Massachusetts statute of 1697. Though New Hampshire w r as separated from Massa- chusetts in 1679, and, we are informed, made a code of laws for themselves soon after the separation, yet no trace of it now remains. After the most diligent search I have not been able to find it. 1 It is very certain that our law, till 167V, was the same as the Massachusetts, and equally clear that the people of New r Hampshire were, at that time, much attached to the Massachusetts government and laws. I have no doubt, and from what I see in the judicial records there can be no reason to doubt, that our statutes were copied from the Massachu- setts. In 1701, our legislature enacted the Massachusetts act of 1697, and our present statute differs little from the act of 1701. The preamble to the Massachusetts act, which is not copied in ours, is, Whereas it is necessary, to prevent fraud, uncertainty, and perjury, in the transferring of real estate, that a mode thereof should be established, easy, certain, and noto- rious. 1 The N. II. Code of 1G79-10S0 is now printed in 1 Provincial Papers, 382-4US; and also in Vol. 8, N. H. Hist. Soc. Pub. 22 Mfi STRAFFORD. Thompson v. Bennet. Our statute of 1791 * contains a new provision, on which the question in the case at bar arises, that, in addition to the other requisites copied from the old statute, " the deed must lie signed by two or more witnesses ; " that is, executed in the presence of two or more witnesses, who must sign their names as witnesses of the execution. 2 Attestation was necessary, as we are informed, by the canon law. No doubt it was here borrowed immediately from the law respecting the attestation of wills. Blackstone and Cruise speak of attestation as a requisite, but add, it is neces- sary rather for preserving the evidence than for constituting the essence of the deed. In another place, Blackstone says, the actual subscription of the witnesses is not required by law, though it is prudent for them to attest the execution. Wooddeson, Sheppard, and Perkins do not include attestation among the requisites of a deed at common law ; they mention only writing, sealing, and, in most cases, signing and delivery. The law of New Plymouth implies that there must be at least two witnesses to a deed of conveyance. It would seem that the Connecticut statute requires witnessing. Barrington, in his Observations on the Statutes, says that the witnesses to a deed were anciently a necessary part of the jury which was to try the validity of the instrument. He thinks this occasioned 1 The statute of Feb. 10, 1791, enacts, That all deeds or other convey- ances of any lands, tenements, or hereditaments, lying in this State, signed and sealed by the party granting the same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowl- edged by such grantor or grantors before a justice of the peace, and recorded at length in the registry of deeds in the county where such lands, tenements, or hereditaments lie, shall be valid to pass the same, without any other act or ceremony in law whatever; and no deed of bargain and sale, mortgage, or other conveyance, in fee-simple, fee-tail, or for term of life, or any lease for more than seven years from the making thereof, of any lands, tenements, or hereditaments in this State, shall be good and effectual, in law, to hold such lands, tenements, or hereditaments against any other person or persons, but the grantor or grantors, and their heirs only, unless the deed or deeds thereof be acknowledged and recorded in manner aforesaid. a In Fwsaith v. Clark, 1850, 21 N. H. 409, it was held, that the pro- vincial laws in force in 173:$ did not require a deed to be witnessed. NOVEMBER TERM, 1814. 339 Thompson v. Hennet. the necessity of attestation by two witnesses, which he con- siders as a troublesome and unnecessary ceremony. But if attestation were not necessary at common law, it was certainly usual both in England and here, and our statute has made it essential. And notwithstanding- what is said by Barrington, I think it has its use. It serves to identify the instrument; it gives solemnity to the transaction ; and it has some tendency to protect the grantor from imposition, and from being suddenly entrapped. When a statute requires what might otherwise be considered as circumstance, — a mere ceremony, — it becomes essential, and must be observed. Attestation by two witnesses is made by the statute as necessary to a deed of conveyance, as attesta- tion of three witnesses to a will of lands, and as necessary as a seal to a deed at common law. The instrument cannot be received in evidence in either case Without. The instrument without attestation is not a deed of conveyance. It differs from acknowledgment and recording ; the instrument may be a deed of conveyance without these, and the land passes with- out these, though these are necessary to its operation as a conveyance in certain cases. But the land does not pass without a seal, nor without attestation, delivery of the deed, &c. (a) I conceive it to be clear that all deeds of conve} r ance must be so attested. The deeds of conveyance spoken of in both clauses of this section are the same ; must have the same requisites, i. e. they must be deeds of conveyance. It would be absurd to suppose that, though the first clause describes what shall be the requisites of a deed of conveyance, the second clause, speaking of a deed of conveyance, means a different instrument, a common-law deed, an instrument with other and different requisites. The only use of the second clause was to take away, or repeal, the common-law ceremony of livery and seisin, and to dispense with acknowledgment (a) In our former statutes it seems implied that a deed of conveyance must be witnessed. Stat. 1701 speaks of proof which is to supply the place of acknowledgment by the oaths of two of the witnesses thereto subscribed. 340 STRAFFORD. Thompson v. licnnet. and recording- in the case of the grantor and his heirs. There is no reason why attestation should not be equally necessary to pass the lands as to hold them ; as necessary where acknowl- edgment and recording may be dispensed with, as where they must be observed ; equally necessary where the deed is to affect the grantor and his heirs, as where it operates on others. Indeed, the reason is stronger for attestation where acknowl- edgment is not required than where it is necessary. In such case, a person might lose his land merely on proof of similarity of handwriting. It is of the nature of all requisites in any instrument that injustice should sometimes be done thereby. This is the nature of laws themselves. Summum jus is some- times summa injuria. Some observations have been made on the negative clause of the statute in question, with an intention to show that, in the latter clause, the word " deed " has the same signification as in the former ; that it means, in the latter, the statute deed of conveyance, the requisites of which had been just enumerated ; no such deed shall be sufficient to hold such lands against any but the grantor and his heirs, unless acknowledged and re- corded ; against them, such deed shall be sufficient to hold the hinds. If the word "deed," or "conveyance," — and they signify the same thing in this whole section, — means a deed at common law, not attested, then the first clause declares that a deed attested, &c, acknowledged and recorded, shall be valid to pass lands ; and the second, that a deed not attested, but ac- knowledged and recorded, shall be sufficient to hold the same lands, which is absurd ; and equally absurd to suppose that the same word is used in one [?] sense, when applied to differ- ent persons, when there is nothing in the case which requires any such violence to the rules of interpretation. There is no difficulty in arriving at the true sense of these two clauses, supposing the word " deed " to be used in the same sense in the latter as the former, i. e. a writing, signed, sealed, and attested. It was well understood a century ago, as it is now, that the acknowledgment and recording make no part of the deed, but the attestation does. It is no more a deed, till attested by two witnesses, than an instrument, purporting to be a will, is a NOVEMBER TERM, 1814. 341 Thompson v. Bennet will, till it is attested by three. When a statute requires that an instrument shall be executed in the presence of witnesses, it does not become such instrument merely on the signature of the signer ; there must be the attestation of the witnesses. 1 Cranch, 239-251. When attested, the execution is complete, and not before ; and our deed of conveyance takes effect from the making ; the land then passes. The acknowledgment is a mere warrant for the recording and aids in the proof or authen- tication of the transaction ; and the recording is principally for the purpose of giving notice. Where the grantee neglects to record his deed, it shall not, in certain cases, and under cer- tain circumstances, be effectual to hold the lands which had passed by it. One use of the second clause was to lay down a rule by which it may be known when recording is essentially necessary to enable a grantee to hold lands. As it respects the grantor and his heirs, the statute rule is that recording is not necessary. Recording is useless to them. They cannot suffer for want of notice. But, where others do suffer, or may be supposed to suffer, for want of recording, there the statute rule is that recording is essential to enable grantee, not to take, but to hold against such. The deed, act, or instrument, necessary to pass lands, must be the same, as it respects all persons. On the execution of the deed as the statute requires, the land passes, and there is the same, if not greater, reason why it should not [?] be signed, sealed, and executed in the presence of witnesses in the one case as well as the other ; the statute has made no such difference. But the circumstances or requisites to be observed, to enable grantee to hold the land against grantor and his heirs, and against other persons, may be different, and call for different provisions and regulations. These other persons may suffer for want of notice that the land has passed from grantor. To guard them against any injury from this ignorance, the law declares that the grantee, who was bound to give the requisite notice by recording his deed, shall not hold the land. There is no such thing as a common-law deed. To pass lands, the deed must be such a one as the statute requires; it must have all the requisites necessary to constitute it a deed of conveyance ; and it must, 342 STRAFFORD. Thompson v. Bennet. moreover, be followed by acknowledgment and recording in certain cases. An opinion lias been expressed, in the course of the obser- vations which have been made, that the first settlers of New England did not intend to adopt the Statute of Uses, except so far as regards the principle that lands might be passed by deed. Of necessity, the English modes of conveyance must be many and complicated. The alterations of property must necessarily introduce new modes of conveyance, and it would be natural to suppose (if we did not know the fact to be so) that the legislature would both frame new modes of convey- ance, and add new circumstances to those which custom and use had gradually introduced. It is, indeed, well known that much of the law of conveyancing now in force in England was originally the offspring of fraud and evasion. The doctrine of uses sprung from a desire to evade the restraints imposed on alienation, and especially to religious corporations ; to elude the common-law mode of conveyance, which was open and notorious ; and to escape from the feudal burdens. The number of English conveyances is, therefore, easily ac- counted for, and that there should be different forms adapted to different cases. They grew out of the exigencies of the occasion. Their uncertainty and confusion has a double source, — ignorance and ingenuity ; ignorance of the law in some, and ingenuity to evade it in others. At the first settle- ment of this country, a deed, as a mode of conveyance, was in general use in England. It would be believing against evi- dence to suppose that the first settlers of Massachusetts were well skilled, or even tolerable proficients, in that branch of English law called conveyancing. Blackstone speaks of the intricate nicety of uses, as still prevailing in English con- veyances, and of the ingenuity of an able artist as necessary to mould the doctrine of uses to useful purposes. The occa- sion for many English forms did not exist here at all. How to apply such as might be applicable was a branch of knowl- edge, I may say, wanting in all. Let any one, for a moment, NOVEMBER TERM, 1814. 343 Thompson v. Hennet. advert to the several modes by which a title to real estate might he transferred from one man to another, according to the different interests or estates of the seller, and those in- tended to be vested in the purchaser, and he will at once feel the force of this observation. It would consume too much time even to draw the outline of English conveyances. Blackstone enumerates thirteen species, and each of these was applicable to a variety of cases. It would require a volume to enumerate the cases to which each of these modes might be applied. A feoffment was, perhaps, the most sim- ple ; but what was a good livery and seisin was oftentimes a question of no small difficulty, and a mistake here was fatal. Terms of years, however long, say one thousand, might he created and transferred by deed, without witnesses, acknowl- edgment, or recording, and without any entry on the land or delivery of possession. Estates of inheritance in many cases, and any less estates, might be passed in the same man- ner. Some deeds required a pecuniary consideration to render the conve}-ance valid ; in others, no consideration was necessary; while in a third class the consideration must be — I do not say may be, but must be — blood or marriage. The local situation of the land, and the quantity, or estate of the seller or intended purchaser, were material circumstances in judging of the proper form of conveyance, and, in case of bargain and sale (which must be by indenture), whether necessary to be enrolled or not. The presence of witnesses at a transfer of so much importance was in no case required. The acknowledgment seems to have depended, for its authority, merely on regulations made by the several courts. Recording or enrolment (though property of every kind might be trans- ferred without it), when it took place, might be in any of five different places, at the election of the party- Before 1677, most things [?] might be created and transferred by parol. Some conveyances were at common law. Others derived their force and effect, — some altogether and others in part. — from the Statute of Uses. Some were original. Others pre- supposed a former conveyance. Some were calculated to transfer the land, the actual possession ; and were available 344 STRAFFORD. Thompson v. Bennet. only where the seller was in the actual occupation. Others could convey only a right or imperfect title. Some could convey no more than the seller could lawfully transfer. Others could transfer that which he had no lawful right to convey. In the conveyances under the Statute of Uses, the whole intricate, nice, and ingenious doctrine of uses was necessary to be known. This slight sketch is enough to make us thankful that the first settlers of this country had the prudence to reject the whole en masse. What part should they have adopted, what part did they adopt, of these many and ever-varying forms ? If they had concluded to adopt the English law of convey- ancing, it would have been necessary immediately to have imported a body of conve3 r ancers. Instead of this course, they contented themselves with one simple form, and got along as well as they could without any professional man at all. Let the English forms be contrasted with one every way suitable to our wants, the state of our country, and the degree of law-knowledge possessed by those who must necessarily make conveyances here. There are few owners of real prop- erty who may not be presumed to know the property or estate they possess, and what they intend to convey. In England, the difficulty begins at the next step. Who can tell what form of conveyance will best effectuate the intention of the parties? When the best form is chosen, it requires no small skill to observe the necessary precision. Now all these difficulties arise, not from any intrinsic difficulty in the sub- ject, but from the multitude and variety of forms, which honesty and knowledge, fraud and ingenuity, have contrived in the science of alienation. The course adopted in the earliest times here, how different! The instrument of con- veyance must be a deed, i. e. a writing sealed and deliv- ered ; and, to give it more solemnity, and to protect the grantor from imposition, it must now be attested by two witnesses at least, (a) Land passes as well without as with (a) This cannot be considered as imposing any hardship, for it was always the usage. NOVEMBER TERM, 1814. 345 Thompson v. Bonnet. consideration. The form of the instrument is no way material. Technical words are not, in general, necessary. Our convey- ances may be in the simple form used in ancient feoffments ; the execution of the deed and the recording are in the place of livery and seisin. The transaction is solemn and certain; there must be writing, sealing, delivery, attestation, acknowl- edgment before a magistrate ; for the benefit of the public, the transaction must be notorious, and the records at once preserve the evidence and give publicity. All estates of every name and nature, corporeal and incorporeal, pass by deed, (a) It is immaterial whether the estate be in posses- sion, remainder, or reversion, holden with others or in severalty. A quitclaim passes the land or the right, as the case may be. I cannot but think that this was intended as a substitute for all the English modes and forms ; and that it operates by force of our statute. It is true, a deed may be so framed, if the parties so please, as to refer, in construction, to the Statute of Uses. But I forbear to enlarge. If the historical view which I have endeavored to give of our law of conveyance and the exposition of the statute be at all correct, I think we are furnished with an easy answer to the question, whether the deed from Bennet to Thompson was admissible in evidence ; and it will, on these principles, be easy to answer all the objections which have been urged in favor of the admission. Though I have gone over a good deal of ground, I have aimed at a direct course, and have not suf- fered myself to be diverted from it to discuss a vast number of questions which have lain in my way. The principles of English law to which I have alluded are, I believe, all abun- dantly clear. As to what relates to our statutes, usages, &c, unfortunately we have no authorities to appeal to. To support this action, plaintiff must show title ; i.e., that the land passed to and became vested in him. It is not suffi- cient to show a contract by which the true owner became (a) And all deeds must be executed the same way, and attended with the same solemnities. 346 STRAFFORD. Thompson v. Bennet. entitled to a conveyance; he must show a conveyance, (a) Not sufficient that he may have an equitable title; lie must have a legal one. If he has advanced money in expectation of a conveyance, and none made, he has his action of money had and received, or on the contract ; (6) if in expectation of m. [mortgage ?], the m. debt is still undischarged. He pre- tends to no title except what the deed gives. He has offered no evidence, made no case, except what the deed makes for him. Pie had no prior possession, and admits defendant in possession, where he may remain till plaintiff shows title. If plaintiff has no legal title, defendant is safe. There may be cases where imperfect title — mere possession — would be good against a defendant; but no such case is made here. Plaintiff shows this deed, for all and every thing, as a conveyance. If plaintiff had possession, and defendant sued him on the ground that the deed was invalid, especially if all fair, and possession delivered or taken under it, Thompson might have good defence. 5 Binn. 129. But the question now is, Did the land demanded pass by this deed ? The answer is, This is not a deed of con-; veyance under our statute, because not executed as the statute requires ; all statute deeds of conveyance must be attested by two witnesses at least. But it is said the statute only mentions affirmatively that certain deeds are deeds of conveyance, but there are no nega- tive words. This has been already noticed. No conveyance is good unless the deed be acknowledged and recorded, except in the case of grantors. " The deed " means such a deed as is mentioned in the first clause, and there must be such deed to pass the land at all. It would be absurd to say that this deed passed the land in this case and did not pass it in every other case. The same land cannot pass and not pass by the same deed. It may pass, and yet not be holden. Now sup- pose, after this judgment in favor of Thompson, that the land passed by this deed, he should be obliged to maintain an O) Sed vide 2 Binn. 129, Campbell v. Spencer (this was an act of assembly). (b) G Manuscript Reports, Bothcl v. Bund//, 15, 21; T. R. GOG; 1 Dall. 428. NOVEMBER TERM, 1814. 347 Thompson v. Bennet. action against a disseisor of Bennet, or one claiming by extent as Bennet's creditor; could it then be holden that the land did not pass? The attestation is just as necessary as if Thompson claimed by will ; or as necessary as a seal. (5 Mass. 459, 4G0.) It is said, if this is to be considered as a statute deed, it is only defective, and chancery would relieve ; and if chancery would compel a new and perfect execution, this court may consider it as done. Answer: Chancery could not relieve in this case. When a statute requires certain things to be done, courts of equity are bound as much as courts of law. 2 Fonbl. 49, n. c ; 3 Bro. Ch. C. 571. Courts of equity sometimes pre- sume livery and seisin from possession. Here, Thompson has had no possession. It has been further contended that this, though not a deed of conveyance within the statute, estops defendant from claiming the land. Answer : The doctrine of estoppel does not apply. 2 Blackst. 295. This is a deed-poll, and therefore no estoppel. 2 Har. & M. 193. Here is no estoppel by the covenants ; 1 for, if the land did not pass and could not pass, though seller had title, the covenants are inoperative ; no deed, no cove- nants. Shep. 223. Bennet is not estopped from saving that this is not a deed of conveyance ; and that is all that is neces- sary for him to say in answer to this action. Suppose it had no seal. In this case he may admit it is his deed, and deny that it passed the land. But it is contended that this instrument is a deed at common law. The party must go farther, and maintain that it passed the land. It is to be observed that the common law does not 1 Sustained by Woods, J., in Rundlett v. Hodgman, 1841, 16 N. H. 239, 240; Lessee of Patterson v. Pea.se, 1831, 5 Ohio (Hammond) 190; Wallace's Lessee v. Miner, 1834, 6 Ohio (Hammond), 366; Doe d. Stevens v. Hays, 1848, 1 Ind. (Carter) 247; Connor v. McMurray, 1861, 2 Allen, 202; Doyle v. Coburn, 1863, 6 Allen, 71 (but see Foss v. Strachn, 1860, 42 N. H. 40). See also Doe d. Chandler v. Ford, 1835, 3 Ad. & E. 649; Atkinson v. Bell, 1857, 18 Tex. 474, 479; Douyal v. Fryer, 1831, 3 Mo. 29. 348 STRAFFORD. Thompson v. Bennet. distinguish between the grantor and others ; a deed that passes the land as to one passes it as to all persons. What common law is intended? If the English, I know of none such. It is not a feoffment, for no livery. It is not a lease nor a release, because Bennet was in possession, &c. If our common law be intended, show us the evidence of this. I find none. It is said we adopted the English Statute of Uses. Where is the evidence of it? If we did, it was a most imprudent act, and certainly a leap in the dark. We did not adopt it; and, if we did, it was repealed by statutes 1652 and 1701, and present statute. But, if we adopted the Statute of Uses, we must have taken the Statute of Enrolments, which passed at the same session, and is always to be taken as part of the Statute of Uses, — and a most necessary part, a sine qud non. But, if we adopted the Statute of Uses without the Statute of Enrolment, (a) this is not within it. It is essential that it should be an indenture. This is a deed-poll. 2 Blackst. 338; Shep. 222; 3 Blackst. 33(3; Paca v. Fonvood, 2 Har. & M. 175. It is not enrolled as the statute requires. The doctrine seems to be that we adopted just so much of the Eng- lish law as is necessary to make out this case. The truth is, we just borrowed the principle that land might pass by deed, and reserved to ourselves the right of adding requisites to the deed, and circumstances of solemnity and notoriety, acknowl- edgment, and recording, all in our own way. It has been said this is a covenant to stand seised. It is not ; for there it is essential that the consideration should be blood or marriage, and this is neither. 2 Blackst. 337 ; Sullivan, 89 ; 2 Har. & M. 198. In short, admitting this deed as a valid convevance would repeal our laws for at least one hundred and sixty years past. When the cause was first opened 1 hoped to be able to find principles upon which the deed could be supported. I have spared no pains to find such principles, but have met (o) As has been holden in some States. Qu. N. Y. NOVEMBER TERM, 1814. 349 Thompson v. Bonnet. with no success. I am now convinced that there are no such principles. The verdict must be set aside, and a general verdict entered for defendant. 1 1 This decision was overruled in French v. French, 1825, 3 N. H. 234, where it was held that a deed with only one witness, though not good under the statute of 1791, might yet operate as a conveyance under the Statute of Uses, and so pass the estate. As the decision in French v. French has now been acquiesced in for more than half a century, and as there are titles dependent upon it, it will, of course, be adhered to, not- withstanding any doubt of its intrinsic correctness. The statute was changed in 1829, so that a deed without two witnesses would not pass the land, even between the parties. Stone v. Ashley, 1842, 13 N. H. 38; Rundlett v. Hodgman, 1844, 10 N. H. 239. By the Revised Statutes of 1842, "the law of 1791 was substantially restored;" and accordingly a deed with only one witness, executed since the Revised Statutes, is held good as against the grantor and those having notice. Hastings v. Cutler, 1852, 24 N. H. 481; Sanborn v. Robinson, 1873, 54 N. H. 239. In Barker v. Bean, 1852, 25 N. H. 412, it was held that an assignment of real estate for the benefit of creditors, executed in 1850, attested by only one witness, was invalid as against an attaching creditor with notice. Portions of the opinion are somewhat misleading; but the decision is sustainable upon the ground that the assignment must be so executed as to be effectual against all the creditors. If its validity as to each creditor could be allowed to depend upon the question whether such creditor had received actual notice, it might be good as to part of the creditors, and invalid as against the rest; thus permitting the inequality of distribution which the assignment statute was intended to prevent. Among the cases which recognize the Statute of Uses as being in force in this State are Tappan's Appeal, 1875, 55 N. H. 317; Hutchins v. Heywood, 1871, 50 N. H. 491; Upham v. Varney, 1844, 15 N. H. 462. 350 CHESHIRE. Town of Chesterfield v. Hart. CHESHIRE, DECEMBER TERM, 1814. Town of Chesterfield v. Sally Hart. A husband is not liable, under the pauper statutes, for the support of his wife's grandmother, although his wife, at marriage, was possessed of sufficient prop- erty, which he now holds in her right. An infant, of sufficient property, is liable, under the pauper statutes, for the support of her grandmother. This was an action of assumpsit, to recover the moneys expended by the plaintiffs for the maintenance of Mary Hart, grandmother of the defendant, under § 7 of the act of Feb. 15, 1791, for the punishment of idle and disorderly persons and for the support and maintenance of the poor. The parties agreed on a statement of facts, on which two questions only were submitted. 1. Whether the defendant was liable, she [though having sufficient property] being under the age of twenty-one when the relief was administered and the expense incurred, and being still a minor. And, 2. Whether Phinehas Fisk and Mary his wife, living in this county, are also liable; the said Mary (Mrs. Fisk) being also a granddaughter of the pauper, of sufficient abil- ity when she married, which was before the moneys now sued for were expended; and the husband now holding property, sufficient for the maintenance of the pauper, in right of his wife. In case Fisk and wife are liable, then it was agreed that judgment should be against the defendant, if at all, for one- half, only, of the moneys expended. If defendant not liable, then a nonsuit to be entered. Phineas Handerson, for plaintiffs. Creo. B. Upham, for defendant. DECEMBER TERM, 1814. 351 Town of Chesterfield v. Hart. Smith, C. J. The second question is easily disposed of. By the English statute of 43 Elizabeth, the word " grand- children " is omitted, and it seems not judicially determined whether the word " children " extends to them. 3 Burn, 563. In respect to " father," " mother," &c, the language of the English statute and our own is alike, and no doubt the same construction should be put on ours which, at the time of enact- ing our statute, had been put on the English. At first it was holder) that, after the death of the wife, who was liable for maintenance of her poor relation, the husband was not liable ; but, during the marriage, he was. It was considered as a debt of hers when single, which extends to charge the hus- band ; but, at the death of the wife, the relation being dis- solved, the husband is under no further obligation. 3 Burn, 562, 563 ; 1 Blackst. 448. It seems, in some cases, to have been determined, that, where the husband received an estate with his wife in marriage, he was chargeable in respect of such estate. 3 Burn, 562. But in The King v. 31unden, 5 Geo. I., reported 1 Strange, 290 ; 3 Burn, 563, it was determined that the husband was not obliged to maintain his wife's mother, though he had a good fortune with his wife. By the law of nature the child is bound to maintain his own parents ; the statute was made to enforce this obligation, and extends no farther than the law of nature went before. The King v. Benoier, 2 Ld. Raym. 1454, was in 13 Geo. I., eight years afterwards, and was decided the same way. 1 The circum- stance of Munden's having had a fortune with his wife dots not seem to have been considered as affecting his lia- bility, {a) The King v. Munden was recognized to be law in Tubbs and others v. Harrison and another, 4 T. R. 118. It (a) Indeed, it does not affect the liability of the husband on account of the wife, at law, in any case. If the wife be indebted before marriage, the husband is bound, afterwards, to pay the debt, for he has adopted her and her circumstances together. 3 Mod. 186; 1 Blackst. 443. But, though he has had a great fortune with his wife, if she dies before him, he is not liable to pay her debts contracted before marriage, either in law or equity. 1 P. Wins. 4(38; 1 Blackst. 413 (n. 18). 1 The point decided was that a father-in-law is not obliged to maintain his daughter-in-law. 352 CHESHIRE. Town of Chesterfield v. Hart. appears that the wife was alive at the time the order was made on the husband, which was quashed. The Court, in the latter case, were of opinion that the statute only extends to natural relations. 1 Blackst. 449, n. (2). It is conceived that this construction has been always put on the statute of the late province, and on the present statute. If it had been intended to charge the husband in any event, provision for the purpose would have been made in the revi- sion in 1791. 6 G. Bacon, 379. The first question is a more difficult one. The general doctrine is, that infants are not liable on any contract except for necessaries ; and that, with several exceptions, they are liable for all torts committed by them. The support of a grandmother can hardly be considered as a necessary for the grandchild, (a) In England, and in the late province, the liability of relations to afford relief was enforced, not in a suit at law or equity, but by an order of the sessions. We have no reports of this court ; and their decisions would have little authority, if we had. We must decide this question upon principle. Blackstone considers the obligation of a relation of sufficient ability, of a mother, for example, to maintain her child, as a debt, which, like her other debts dum sola, devolves on the husband, so far at least as to make him liable during the coverture. But infancy is a bar to all actions of debt or assumpsit, except for necessaries. Wherever an infant can plead non-assumpsit, he can plead infancy ; or, rather, he may avail himself of the infancy as a complete defence, ex- cept in the case of necessaries ; certainly where the cause of action does not arise ex delicto, as in the case of money had and received for embezzlement. 1 Esp. Rep. 172 ; s. c. Peake's Cases, 223. Is the present case an exception to the general rule ? The present action is assumpsit on the implied promise, (a) Sed vide 1 Strange, 168. Infant liable for necessaries for his wife. They are considered as necessaries for hiru. 3 G. Bacon, 590. He is also liable to an action for the nursing of his lawful child. 3 G. Bacon, 596; 1 Fonbl. 67, n. "y," S. P. DECEMBER TERM, 1814. 353 Town of Chesterfield v. Hart. which the law raises, that every man promises to perform all the duties enjoined on him by statute. 1 Still, it would seem that case would also lie ; the non-performance of the duty being considered as a wrong done to the person entitled to demand it. But this will not help the matter; for the rule is, that, wherever assumpsit will lie and infancy would be a bar, the defendant shall not be deprived of the bar by the election of the plaintiff to sue in tort instead of assumpsit. 8 T. R. 835, Let us see the ground on which infants are excused from performing their contracts. It is because they are supposed to want sufficient understanding to make contracts. They are not holden by their contracts, because they are likely to make improvident contracts, — to be imposed upon. But this rea- soning does not apply to the present case. The law has made this contract for them, in respect of their obligation by the law of nature, and their ability on the score of property. Both these circumstances apply equally to infants as to adults. They are no more liable to imposition in performing this duty than adults are. They have nothing to do but to pay. They have nothing to do but to obey the law. There is no exception in their favor in the statute. It is holden that a statute may affect their rights, and they are bound ; e.g. Statute of Limita- tions. An infant is no more exempted from an obligation imposed by statute than others. A statute is a law, and in- fants are bound to obey the law. It is true, in favor of infants, it is held, that general statutes that inflict corporal punishment do not extend to infants ; the punishment also being collateral to the offence. See 3 G. Bacon, 592 ; 1 Hawk. c. 64, § 35, semble. But where the words are general, and the punishment prescribed by the statute, infants are included as well as others. Id. It seems to be on this principle — that the infant cannot be injured by his own conduct — that it is holden that judicial acts done by him in a court of record regularly bind him. 3 G. Bacon, 596. It is stated by Lord Mansfield, in Zuuch v. Parsons, 3 Burr. 1801, a right and lawful act done by 1 Hillsborough County v. Londonderry, 1862, 43 N. H. 451. 23 354 CHESHIRE. Town of Chesterfield v. Hart. an infant is not within the reason of the privilege of infants, (a) It is a lawful act for an infant of ability to support parent in want; both by law of nature and statute. When done, it binds him. If she paid, could not recall. Why? Because pay- ment was a lawful act. Ergo, bound to pay. She could not avoid the payment. Why ? Because bound to make it. 3 Burr. 1800; 6 G. Bacon, 589. Semble, a lunatic or idiot would be bound in this case. Why not an infant? Neither can make an express promise. Both are bound to obey all laws as far as property is concerned; the infant much farther. An infant liable for rent on his occupation and enjoyment; so for a fine, the infant being a copyholder. 3 Burr. 1717. In England, relations liable to maintain each other are taxed, assessed, for the purpose, by the sessions. It is levied as other rates, &c. It never was doubted here that infants — that is, their estates — are liable to taxes. This is [in effect] a tax on a particular description of persons, for the support of the poor. This was formerly the case [literally] here. 1 The principle is the same when an action is given. Was it ever supposed that a person charged to be the reputed father of a bastard child could plead infancy ? The maintenance in that case, as in this, is imposed by statute, without any exception in favor of infants, and yet that is for personal misconduct. It may be laid down as a rule, that, wherever a statute imposes a burden on persons (and especially, as here, on property), infants and their prop- erty are liable. Default. 2 (a) The privilege is to protect infants from wrong. Can it be wrong in an infant to do what a statute has declared a duty, and has made no exception of infants, and which, when done, he cannot avoid V See I Fonbl. 71 a. 1 Provincial Statute of 1719. 2 I. Non-liability of Husband. Husband held not liable for support of wife's ancestors, in Mack v. Parsons, 1786, Kirby, 155; Nichols v. Sherman, 1792, 1 Root, 361; Commissioners of Poor v. Gansett, 1831, 2 Bailey, 320. In none of these cases did it appear that he received any property by his wife. See also Newtown v. Danbury, 1821, 3 Conn. 553; Johnson v. Ballard, 1857, II Rich. (S. C.) L. 178; Anonymous, 3 N. Y. Leg. Obs. cited in 4 Abb. DECEMBER TERM, 1*14. 355 Town of Chesterfield v. Hart. N. Y. Dig. 623, § 47; Lawkknck, J., in Cooper v. Martin, 1803, 4 East, 76, 84. Chancellor Kent, while conceding that the husband is not liable, evidently regrets that the statute was not so framed as to reach him when he has received property through the wife. 2 Kent, Com. 192. II. Non-liab'dUy of Wife. The agreed case submitted the question, whether Fisk and wife, " or either of them," were liable. The non-liability of the wife seems tacitly assumed by the Court (as also in Commissioners of Poor v. Gansett, ubi sup.); perhaps on the ground that, by marriage, she had parted with her ability to maintain. See 2 Kent, Com. 192; Lawkknck, J., in Cooper v. Martin, ubi sup. In view of recent legislation, a marriage at the present time might not have this effect. In 2 Kent, Com. 192, it is said that, if the wife has separate property, '• the court of chancery would, undoubtedly, in a proper case, make an order, charging that property with the necessary support of her children and parents." III. Liability of Infant. As to the fiction by which assumpsit is maintained against persons legally incapable of contracting, see the very able opinion of Ladd, J., in Sceva v. True, 1873, 53 N. H. 627, 630-G33. In Succession of Lyons, 1870, 22 La. Ann. 627, "alimony " was allowed a destitute grandmother from the estate of infant grandchildren. As to whether chancery will make an allowance from an infant's estate for the support of his parents, see Zabriskik, Chancellor, in McKnighCs ExWs v. Walsh, 1872, 23 N. J. Eq. 136, 143-145; s. c. 24 N. J. Eq. 498, 505. '* It must be regarded as settled, that there is, at common law, no legal obligation to support a parent." Bell, C. J., in Lebanon v. Grijfin, 1864, 45 N. II. 558, 561. Conversely, it was held in Kelley v. Davis, 1870, 49 N. II. 187, that a parent is under no legal obligation, independent of statutory law, to maintain his minor child. 356 CHESHIRE. Eldridge v. Bellows. Elisha Eldridge, Defendant in Review, v. Thomas Bel- lows, Plaintiff in Review. There can be no demurrer to a writ of review. If the general issue was the only plea in the original action, a demurrer to the declaration cannot he filed on review. In an action by hail against sheriff, for falsely returning 7ion est as to principal, the declaration alleged that the sheriff " could have taken" the body of the debtor. Held, that this did not state a good ground of action, and that it would be held bad upon motion in arrest of judgment. The original action was case against the defendant Bel- lows, sheriff of the county of Cheshire, for an alleged false return by his deputy, Heaton. The declaration alleged the following facts : — Henry Phelps obtained a writ of attachment, from N. Townsley, Esq., against Allen Bidwell, Nov. 7, 1805 ; served by Joseph Currier, constable, Nov. 9, 1805, on body of Bid- well. Plaintiff [Eldridge] became bail on the writ, not only for Bid well's appearance, [but] that he should abide final judgment, and not avoid. Writ returnable, Dec. 7, 1805. Phelps, at C. C. P., September Term, 1806, Cheshire, to which court the action came by appeal from the judgment of justice, recovered judgment against Bidwell for 2 cents damages, and costs, $27.60, and 17 cents for execution issued on said judgment. Execution issued Oct. 3, 1806; same day delivered to Joseph Heaton, deputy sheriff, under defendant Bellows, to be served, executed, &c. Heaton, being possessed of the execution, ought, according to the precept thereof, to have made the money of Bidwell's goods, &c, to be shown by creditor, and, for want thereof, to have taken the body of Bid- well. Although Heaton could have taken the body of Bidwell, yet, regardless of his duty, and fraudulently intending to de- ceive and injure the plaintiff, and to make him answerable to the creditor, he falsely and deceitfully returned non est inven- tus ; by reason whereof, Phelps, first Tuesday, April, 1807, sued DECEMBER TERM, 1814. 357 Eldridge v. Bellows. out scire facias against plaintiff as bail. Writ returned to C. C. P., September Term, 1807; continued to April Term, 1808; judgment for plaintiff, Eldridge [defendant in that pro- cess] ; appeal entered at S. C, Cheshire, May Term, 180s, when Phelps had judgment against plaintiff for 827.7'.*, dam- ages, and costs, $21.62, and 25 cents for execution ; by reason whereof plaintiff compelled to pay Phelps 151.56, and divers other sums in defence of the suit. Ad damnum, $200. In the writ of review, Eldridge is summoned to answer to Bellows in a plea of review of an action of trespass (should be trespass on the case), wherein the said Eldridge was plaintiff, and the said Bellows defendant, for that whereas (here recit- ing the declaration in the original action, substantially, as given above), " which action was commenced by said Elisha Eldridge, against the said Thomas Bellows, at the Court of Common Pleas for said county of Cheshire, September Term, 1809, and continued to April Term, 1810, when judgment was rendered " in favor of Bellows, from which Eldridge appealed to the Superior Court, May Term, 1811, " when and where the appeal was entered, and judgment was rendered, that the said Elisha Eldridge recover, against the said Thomas Bellows, the sum of $31.28, damage, and costs of court, taxed at $36.55. (a) Which judgment of our said Superior Court of Judicature the said Bellows says is wrong and erroneous, and ought to be reversed, because he says it ought to have been that he should have recovered against the said Eldridge the costs of court, and that he is damnified, thereby, the sum of $200. Wherefore, for reversing the judgment of our said Superior Court of Judicature, and for recovering the damages aforesaid, and costs, and his own costs, the said Thomas Bel- lows brings this suit." To this writ of review there is a general demurrer, and joinder in demurrer. 1 (a) In dockets, it appears that, at May, 1810, S. C, verdict, Heaton guilty, $31.08. Curia advisare. May Terra, 1811, judgment. 1 Statement compiled from Judge Smith's notes and a copy of the writ of review. 358 CHESHIRE. Eldridge v. Bellows. Smith, C. J. This action, for aught that appears, is review- able. The judgment was on verdict, though our practice is not to state this in writ of review. It seems it ought to be stated, to give the Court jurisdiction by way of review, (a) The statute (regulating process and trials in civil causes, § 12, p. 90) enacts that " such actions," i. e. reviews, " shall be tried on the pleas made upon the former trial upon record ; that is, in this case, upon the plea that Heaton is not guilty. (£) If this is to be considered as a demurrer to the declaration, then there are two pleas: the general issue, and a demurrer. Trying the demurrer is certainly trying the action on a different plea from that on record. If, in this case, the parties on the record, have agreed that the former pleas may Ik 1 waived, and a demurrer entered, this should be stated in the record. The demurrer is certainly bad without it. Per- haps even then it might [admit] of some doubt whether the review would be regularly before the Court, unless an issue to the country had been joined and tried, or perhaps judgment by agreement, instead of a verdict. 6 Mass. 500. The parties may now agree that the general issue shall be considered as found for Eldridge, and then the original de- fendant may move in arrest of judgment for insufficiency of the declaration. If the Court give judgment on the demurrer, there can be no motion in arrest of judgment for any excep- tion that might have been taken on arguing the demurrer. The reason is, that the matter of law having been already set- tled by the solemn determination of the Court, they will not afterwards suffer any one to say that the judgment is wrong. 2 Tidd, 825 ; 1 Strange, 425. (This is a language courts have no ear to hear.) The true course is to set aside this demurrer, try the issue, or the parties may consent that a verdict be entered on the issue, and defendant may move in arrest of judgment. (a) This review was commenced within three years. (b) Held, in 5 Mass. 500, that there must be one issue to the country. Then any other issues on record may be tried. A review is a judicial writ. There may be a plea in abatement; and the writ may be amended. 9 Mass. 217. DECEMBER TERM, 1814. 359 Eldridge v. Bellows. It [the demurrer] must be set aside, because, in this case, there can be no demurrer, — none to writ of review, — for two reasons. 1st. Because there can be no demurrer to any writ. From the nature of demurrer, it must be to the declaration. De- murrer admits the facts stated in the declaration. The writ is not before the Court on demurrer. Defects in the writ can only be taken advantage of in abatement, or motion to the Court to quash. 2d. No demurrer to the declaration in writ of review, unless there is also an issue to the country ; and both do not lie where there is but one count. And, in this case, there can be none put in on the review, because this would be trying the cause on a different plea from that on which it was tried before ; certainly not, unless by consent, or on leave obtained, if such can be granted. But, in this case, the party may have all the advantage he wishes in arrest of judgment. Supposing a demurrer, or motion in arrest of judgment made ; is the declaration sufficient to warrant a recovery ? "Where the sheriff is guilty of neglect of duty, in not arrest- ing when he might arrest, the creditor may maintain an action on the case for this default ; because such are his orders. The creditor must elect how he will have his execution served. If he elects the body, he may impose on the sheriff the duty of using as much diligence, for the purpose, as the law requires. But there is no law which imposes this duty on the sheriff, unless the creditor requires it. The creditor may elect to proceed against the bail, and he may lawfully obtain a return of non est inventus, under such circumstances as that no arrest in fact could be made. He may deliver his execution to the sheriff on the last day of service, when he knows the debtor is not to be found. He is not bound to be at any expense in searching for him, nor to require the sheriff to do it at any expense. It has been held, in Massa- chusetts, and is certainly correct, that the execution may be delivered to the sheriff of a county other than that of which the principal is an inhabitant. 7 Mass. 208. It has been held, in this State, that the creditor is bound to use no dili- 360 CHESHIRE. F.ldridge v. Bellows. gence to have his debtor arrested. Thompson v. Young, bail of Copp, Strafford, S. C. September Term, 1806; 8 Manuscript Reports, 233 ; case stated : the execution was delivered to the deputy sheriff the day before return ; Copp had been at large till the day before that ; held, the creditor entitled to his scire facias against the "bail ; not bound to do more than he did. In Buzzel v. Brown, bail of Drew, Strafford, February Term, 1807 ; and Palmer v. Morey, Grafton, May, 1807 ; the bail pleaded that principal had not avoided ; new trial granted ; return of sheriff conclusive ; our statute has not altered the common law ; and this, I think, was correct. 1 The common law is this. When the creditor means to pursue the bail, he sues out a ca. sa. No attempt is ever made to find the principal, to arrest him ; but the execution is left at the sheriff's office, merely to give the bail notice that the plaintiff intends to proceed against the bail. There need be no return till after scire facias issues, because it is the leaving the writ at the sheriff's office which gives the notice, and it is the business of the bail to search the office. In this State, something more must be done to give the bail notice. There must be a return of non est inventus ; because, as our execution is against goods, lands, and body, till return the bail cannot know that the creditor intends to proceed against the bail. But neither the creditor nor the sheriff 1 William Gardner v. Samuel Boardman, Rockingham, September Term, 1808; 11 Manuscript Reports, 279. Scire facias against defendant, as bail of Thomas Boardman. Plea: that the principal was, after judgment, and until return of execu- tion, publicly residing and inhabiting in said county of Rockingham (in which judgment was and this suit is), and might have been arrested on the execution; of which the plaintiff had notice; and that the plaintiff had convenient opportunity, and could have caused the principal to be taken on the execution. To this plea there was a demurrer. Story, for plaintiff. M have their principal always upon a string, which they may pull whenever they please, and surrender him in their own dis- charge. It is not the fault of the creditor or the sheriff, that the bail will not, or cannot, surrender the principal. The law has given him very extensive powers to enable him to do so. He may take the principal at any time, even on Sunday ; and in any place, even in another State ; he may break open the outer door of the house for the purpose ; and he may do all this by deputy as well as by himself. 7 Johns. 145. Why has the law bestowed these powers and privileges, much greater than what is conceded to the creditor, or the sheriff, his officer? It is because the defendant was consid- 1 " He was Whitmore's bail upon the writ, ami. in that capacity, had become liable to satisfy the judgment which might be recovered against Whitmore, unless he should produce the principal to the officer, before the return-day of the execution, that he might be arrested." Gilchrist, J., in Xettleion v. Billings, 1843, 13 N. H. 446, 448. :Wr2 CHESHIRE. Eldridge v. Bellows. ered in his custody, and has escaped from him; and because he is bound to surrender him. We have seen that the creditor need use no diligence, no endeavors, to have his debtor arrested. The bail, as it re- spects him, have no plea to make that he has afforded no opportunity to the sheriff to make an arrest. Now it is much more unreasonable for the bail to throw the burden of hunt- ing up their prisoner (the man they have engaged to see forthcoming) on the sheriff. This is a piece [?] of service not required of him, nor paid for by the creditor, his employer. The bail, who is presumed to be the keeper of the debtor, will not condescend so much as to give information, or agree to pay any expense. lie will not require the sheriff to go out of his precinct. But must he search the county ; how strictly; where is the degree of diligence defined; or is it to be tried by a jury in each case? This declaration merely states that he might have been taken. But it does not state that he was in the presence of the deputy sheriff holding the execution ; or that he was openly about, at what time, or what place. Is the deputy sheriff to come prepared to give an account of himself for six months? I think, when asked by the bail for the debtor, he may reply, " Am I his keeper?" He may go further, and say, "But you are." Upon this doc- trine, no sheriff could ever safely receive an execution. How does he know there is bail? He may well suppose he is ac- countable to no one but his employer, the creditor. But he is, upon this doctrine, accountable, in a much higher degree, to the bail, of whose existence he knows nothing. It is to be observed that no facts are stated showing this return to be false ; as would be the case if the declaration stated that the debtor was in company with the sheriff hold- ing the execution ; x still more, if it stated that the bail sur- rendered, or offered to surrender, him to the officer holding the execution. 2 Mass. 48.5. (a) In this latter case it would be a (k) So is clause in act regulating bail in justice suits. Laws, ed. 1805, lot. i See Parker, J., in Rowell v. Hoit, 1835, 8 N. H. 38, 39; and in dishing v. Breck, 1839, 10 N. H. Ill, 115. DECEMBER TERM, 1814. 363 Eldridge i». Bellows. good surrender; and, if deprived of it by a false return, the bail would doubtless have remedy. According to this decla- ration, the bail does nothing; he requires everything tube done for him by the sheriff. The truth is, the bail can discharge himself only by surren- der. This is the language of our statute, and of the common law. (a) No sueh action as this was ever attempted. It is absurd to say that the language of the precept is a direction to the sheriff. It is as much so in England as here. The sheriff is bound to do no more than the creditor requires him to do. Creditor must direct. It is so on attachment ; so on levy. What he does he must do truly. Here non est inventus means non-surrender. " I cannot find him, using the diligence I am bound to use." No part of this declaration contradicts this return. This is a new experiment, which neither common law, nor statute law, nor usage, in the smallest degree countenances. [At this Term, judgment ivas rendered in favor of Belloivs ; reversing the result reached in the original action.] 1 (a) Our statute does not increase the duties of the sheriff beyond what they are at common law, nor the duties of creditor. On avoidance of debtor, and return of non est, which conclusively proves no surrender made en pais (and if any surrender in court, it is matter of record and may be pleaded), creditor is entitled to scire facias. To contradict this return, show it false, show a surrender. 1 Since the statute of Dec. 16, 1824, relative to the allowance of amendments on review, it has been held, that the Court may, in its dis- cretion, refuse to allow a demurrer to the original declaration to be filed on review. Colebrook v. Merrill, 1870, 49 N. II. 213. See also Frost v. Chesley, reported ante, 202. The opinion on the last point assumes that the common-law liability of bail was not essentially modified by the statute of Feb. 15, 1791, which provides that the sureties shall be held " in case of the principal's avoid- ance, and return of ' non est inventus ' upon the execution." Under a similar statute in Connecticut it was h. Ela. within the State, but be suffered to return to his own State, then the rule of the law of nations is, that for any civil injury the party must be prosecuted before his judge, who alone has a right to constrain or condemn him. His judge is the judge of the place where he has his domicile ; the judge of the State of which he is a citizen. No independent State would tolerate the idea that one of its citizens or subjects should be coerced by a foreign tribunal whilst he remained at home. The service here of process issuing from a foreign State is a contempt of the laws and sovereignty of this State ; and it would be a most impudent thing to call on our courts to enforce the judgment or decree of a foreign State against one of our citizens. In case one of our citizens shall have committed a crime in another State, it may be proper to surrender him on applica- tion of the supreme power of such State, that he may be tried and punished where the offence was committed. But he cannot be forcibly taken from this State ; or tried in the State where the offence was committed, till he is found or brought there, (a) The person of the offender — one who has done a civil injury — being found in any State, gives the courts of that State jurisdiction over him for all crimes committed there, and all civil injuries which were committed there, or which may be prosecuted anywhere, in any place ; such as, according to the usages of nations, follow the person. Here the jurisdiction of the cause is acquired by the person coming within the State ; by his residence there for however short a time. (5) injuries arising within it. Vattel, B. 2, § 84. Other nations are bound to respect this right; even the State to which the defendants belong. Every thing done by the judge of the place, within the extent of his power, is binding everywhere. Vattel, B. 2, § 85. (a) lie cannot be punished elsewhere than in the place where the crime was committed. Vattel, B. 1, §§ 232, 233. (b) Perhaps there is a distinction of this sort, — that a person is always liable to be sued for civil injuries, and on contracts in his own country or the place of his domicile; but that he is only liable to be sued where he is, or is found, — out of his own country, — for some matter there [ ?] then (suddenly) arising. Vattel, vol. 1, p. 154, B. 2, § 103. DECEMBER TERM, 1815. 403 Bryant v. Ela. But, by the law of nations, it is apprehended, the courts of a State sometimes acquire jurisdiction of a cause in respect of property found or lawfully brought within its limits. The jurisdiction of courts of admiralty to judge of and condemn goods captured from an enemy during a war, or lawfully seized on the high seas, or on land under certain circumstances, depends on this principle. The court of the nation to which the captor belongs has exclusive jurisdiction. Coll. Jurid. 100. So it is clear that all disputes concerning lands in any State, though owned by the subject of another independent State, can only be decided in the State where the lands lie ; and so as to all rights annexed to lands. No sovereign State will permit others to intermeddle with what belongs to its terri- tory. He who purchases lands in another State may well be pre- sumed to have agreed that the laws of the State where they are situated shall govern as to the transfer of them, either by the rules of descent, or by instruments executed by the owner, qr by involuntary transfer, such as by forfeiture, or extent, or levy of execution, &c. The courts of the State where the lands are situated have jurisdiction in every thing relating to such lands, and their decisions are to be respected everywhere else. And, though I find little in the law of nations on the sub- ject, I see no reason why the courts of the State should not have jurisdiction over movables, or personal property, found in the limits, as well as over the person of the owner, when the latter is a citizen of another State ; proceeding in such case according to the municipal laws of the State where the property is. I do not speak of the rule or law by which heirs, &c. shall succeed to such personal property on the death of the owner, or how testaments shall be made ; but of the municipal regulations of some States which allow such estate to be taken for the debt of the owner. Vattel, B. 2, §§ 103- 110. I see nothing in the law of nations against such regulations. But then the jurisdiction should not be exercised beyond the property which conferred the jurisdiction. 404 CHESHIRE. Bryant v. Kla. The respect which is due to judgments, sentences, and decrees of courts in a foreign State, by the law of nations, seems to be the same which is due to those of our own courts. Hence the decree of an admiralty Court abroad is equally conclusive with decrees of our admiralty courts. Indeed, both courts proceed by the same rule, are governed by the same law, — the maritime law of nations: Coll. Jurid. 100; which is the universal law of nations, except where treaties alter it. The same comity is not extended to judgments or decrees which may be founded on the municipal laws of the State in which they are pronounced. Independent States do not choose to adopt such decisions without examination. These laws and regulations may be unjust, partial to citizens, and against foreigners ; they may operate injustice to our citizens, whom we are bound to protect ; they may be, and the decisions of courts founded on them, just cause of complaint against the supreme power of the State where rendered. To adopt them is not merely saying that the courts have decided correctly on the law, but it is approbating the law itself. Wherever, then, the court may have proceeded on municipal law,' the rule is, that the judgments are not conclusive evidence of debt, but primd facie evidence only. The proceedings have not the con- clusive quality which is annexed to the records or proceedings of our own courts, where we approve both of the rule and of the judges who interpret and apply it. A foreign judgment may be impeached ; defendant may show that it is unjust, or that it was irregularly or unduly obtained. Doug. 5, n. I think it cannot be doubted that the framers of the Con- federation l meant something when it was declared, as in the fourth article, " that full faith and credit shall be given in each of the States to the records, acts, and judicial proceed- ings of the courts and magistrates of every other State." Some credit beyond what was given to foreign judgments was intended. The paragraph immediately preceding provides that a person charged in one State with crimes, fleeing from justice, shall be delivered up by the State in which he may be 1 Articles of Confederation ; adopted in Congress, July 9, 1778 ; rati- fied and carried into effect, March 1, 1781. DECEMBER TERM, 1815. 405 Bryant v. Ela. found, that he may be tried in the State having jurisdiction of the offence, (a) •In the fourth article, § 1, of the Constitution of the United States, the words are, " Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceed- ings shall be proved, and the effect thereof."' Congress have accordingly declared that records and judicial proceedings, au- thenticated as the act requires, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are, or shall be, taken. Vol. 1, 48. Now this clause in the Constitution was entirely without use, object, or end, unless it gave to the judicial proceedings of the several States more faith and credit than they then had (before 1781). They were then prima facie evidence of debt, and no more. They were conclusive till impeached ; but they might be impeached. Doug. Appendix, 7. Domestic rec- ords could not be impeached ; more faith and credit was given to them. When it is said, therefore, that full faith and credit shall be given, in each State, to the judicial proceedings of the other States, it gives them all the credit they could possibly claim. But still they are judicial proceedings of another State; and, except so far as the Constitution of the United States operates to consolidate the States into one body politic, the States re- main independent sovereignties as it respects each other. The ground and reason for this faith and credit beyond what is given to foreign States, doubtless, was the similarity of laws and judicial proceedings in the several States which compose the Union. The municipal laws of all were thought to be nearly the same ; the administration of justice similar ; and it was no doubt considered that the laws and courts of the United States would tend more and more towards a more per- fect similarity in the municipal laws and judicial proceedings of (a) Suppose this latter clause omitted. In construction, the sense •would be the same. 406 CHESHIRE. Bryant r. Ela. the several States. Complaints were not apprehended on the score of unjust, partial laws of the legislature ; they were expressly restrained by the Constitution from making many such ; nor any jealous apprehension of partiality of judges in administering the municipal laws. But still it is easy to im- agine that a sovereign State would not incline to hold itself bound by the public acts and judicial proceedings of the other States in the Union, on matters which concern their sover- eignty. Congress may safely be trusted to legislate for the Union ; they are chosen by all. The courts of the United States may be safely trusted to administer the laws of the Union. But, as far as our claim to independence and sover- eignty is concerned, there is no ground for confidence in the legislatures of the several States, or in their courts. My exposition of the clause in the Constitution, then, is, that the judicial proceedings of every other State in the Union are entitled to full faith and credit here (as much as at home) ; are to be considered a faithful interpretation and application of the law ; and so conclusive to every purpose, except so far as the sovereignty of the States is concerned. We will not concede, in the credit we give to their acts, the right to try and condemn our citizens. We still retain the right of inter- preting for ourselves the law of nations on the question of jurisdiction, (a) Where the law of nations allows the Ver- mont court, for example, to try one of our citizens, or to entertain a suit against him or his property, we will be bound by the decision. We are willing to admit that the court who try has jurisdiction, if any court of the State has, (they must know best) ; that the rule of municipal law by whieh they try is just, and the decision of the court correct. We will call none of these things in question. But, if they assume juris- diction over one of our citizens, where, by the law of nations, (a) Jurisdiction, strictly taken, means the court of the State which has jurisdiction of a particular cause, or class of causes, and this depends on the municipal laws of the State; and in nothing do States differ more than in the constitution of their courts, and distribution of causes among them. But here the word " jurisdiction " is used in a larger sense, — whether any court of the State has jurisdiction or cognizance of the cause on account of the parties, or the cause of action, by the law of nations. DECEMBER TERM, 1815. 407 Bryant v. Ela. they have none, we will consider the proceedings as void ; we will not suffer our sovereignt}- to depend on a decision of any State, an equal, but not superior, to ourselves, (a) To put a case : suppose a judgment rendered against one of our citizens by a court in Massachusetts, defendant not having been found in Massachusetts, nor any property of his within that State, but that the suit was, in every other respect, prose- cuted in due and regular manner, the decision just, and the process served on defendant a reasonable time before trial. No one will suppose that his chance for a just decision would not be as good there as at h/rnie ; and yet the judgment would be a nullity, merely because the Massachusetts court had no jurisdiction over one of our citizens. Full faith and credit would, in that case, be given to the Massachusetts record, as far as it went. By the record itself, it would appear that the court had no jurisdiction. Full faith and credit is given to the record of the judge of probate, in the county of Hillsborough, appoint- ing Burnham administrator of Starret, deceased; but, Starret being alive, the record of his death is a nullity. 1 If the law of nations is a part of the law of Vermont, and if the account I have given of it is correct, and if the Consti- tution is as I have stated it, we shall, I think, meet with little difficulty in deciding the questions before us. It appears from the record of the judgment which we are now called on to enforce, that defendant was not found in Vermont, so as to give jurisdiction to the Vermont court. (£>) It is admitted he was, at the time (and the record shows the (a) The courts of the State where our citizen is found may he as competent to decide the question of jurisdiction among their own courts, and the merits of the cause, as our courts; there is no room for jealousy. But, when the question is whether our citizen is amenable at all, it is then a question between independent sovereigns, on which to yield the power of judging is to yield the sovereignty. Of two equals, one cannot be the judge of the other. (6) If defendant had been so found, I am of opinion that the court in Vermont would, in that case, have had jurisdiction. The doctrine was so laid down in Wheeler v. Peck, in this county, S. C. May Term, 1808 (11 Manuscript Reports, 109). 1 See Extract from Manuscript Treatise on Probate Law, post. 408 CHESHIRE. Brjant v. Ela. same thing), an inhabitant and resident in this State. If, then, the Vermont court had jurisdiction of the suit, it must have been either, (1st) because the defendant's estate was attached, or, (2d) because defendant appeared and defended the suit. 1. In Wheeler v. Peck, 11 Manuscript Reports, 109, both parties lived, and had always lived, in Massachusetts, and the cause of action accrued there. The suit was commenced by- attachment of defendant's lands in this county. See that case, pp. 109-118. It has always been the practice to sustain suits so commenced in this State ; and, for the reasons which have been stated, I am of opinion that the jurisdiction is warranted by the law of nations. But, then, I think the judgment is no further binding than the property attached. It can be used for no other purpose than that of making a title to the land attached, or, if the property attached was personal, for the purpose of obtaining satisfaction to the amount in value of such estate. It is a proceeding in rem. The property gives the jurisdiction, and marks and limits the extent of that jurisdiction. It would border on absurdity to say that, because A. B., who lives in Georgia, happens to be the owner of property to the value of $100 in this State, this should subject the owner to a suit to any amount ; indeed, give the citizens of every State in the Union the right of maintaining actions against him in our courts. This proceeding by attachment does not exist in England in modern times. There, however, a foreigner may be sued, or rather his creditor may obtain satisfaction out of his property, by a proceeding called foreign attachment. His debtor, or person having his goods in his possession, within the jurisdic- tion of the court, may be summoned, and the debtor's goods condemned to the creditor suing ; but no judgment can be obtained which binds beyond the value so attached, (a) (a) The property attached is condemned. The proceeding is in rem. Phelps et al. v. Holker et al., 1 Dall. 261. It was rightly decided that a judgment obtained in a foreign attachment in a sister State is not con- clusive evidence of the debt in an action between the same parties in another State. This principle cannot be controverted. It has the entire DECEMBER TERM, -1815. 409 Bryant v. Ela. Our practice of attaching goods or lands of a foreigner is an extension of the law of foreign attachment. So far, the law approbation of all the judges in Massachusetts. Bissell v. Brir/gs, 9 Mass. 464. It is a little remarkable, however, that the case in which this was decided in Pennsylvania, Phelps v. Hotter, was not a foreign attachment, though it was so represented to the court, and so considered by Sewall. C. J., in Massachusetts, and Livingston, J., in New York. "The sheriff attached one blanket, shown to him as the reputed property of the defendants." I presume, if the mistake had been discovered, the decision would have been the same. What is there to distinguish it in principle? This " reputed " blanket, unfortunate blanket, of Holker, who was neither an inhabitant nor resident in Massachusetts, conferred the jurisdiction, i. e. all the Massachusetts courts had over Holker any more than over the Governor of Pennsylvania. Why should the judgment extend beyond the thing attached, which gave the jurisdiction? This is the reasoning of McKean, C. J., and has never yet been contradicted by any judge. In Kilburn v. Woodioortk, 5 Johns. 37, which was the case of a person who had himself left Massachusetts five or six months, and settled in the State of New York, but his family remained behind, — they were removing when Kilburn's writ was served by attachment of a bedstead, and sum- mons delivered the wife, — it was held that the judgment was void. The defendant was not within the jurisdiction of the Massachusetts court. His domicile and person were in New York. The attachment of an article of his property could not bind him. It could only bind the goods attached as a proceeding in rem; and the judgment, which was, in that case, by default, cannot be the ground of an action in New York. To bind a defendant personally by a judgment, when he was never personally sum- moned, would be contrary to the first principles of justice. The New York courts seem now to have understood the case of Phelps v. Holker correctly, as it was. Here is an authority — for what indeed required none, being clear on principle — that proceeding by an attachment against an inhabitant or resident of another State is a proceeding in rem, and binds only to the extent of the thing attached. It cannot be considered as a judgment any- where else. The summons in the case at bar, delivered to Ela's wife at Lebanon, is a nullity; or, in other words, it does not give jurisdiction, or convert that into a personal suit which was a proceeding in rem. The service of process issuing out of the State was void. It gave him notice of a pro- ceeding in rem, and nothing more. It gave no jurisdiction over defend- ant ; and the jurisdiction over the land was acquired before, i. e. by attaching it. Clearly, if it had not been for the fact of Ela owning land in Vermont, no jurisdiction. This will be admitted. On what principle this? Not that he had no notice; for he had: but that a citizen of New Hampshire cannot be sued in Vermont unless served with process there. 410 CHESHIRE. Bryant v. Ela. is reasonable ; but it would be unreasonable to hold the owner liable beyond the property attached, where jurisdic- tion over the person and suit is acquired merety by the attachment. It is true, our statute does not distinguish between the cases where the owner of the property attached is a citizen or foreigner. But there is a clear distinction in principle, and clearly a judgment under the statute would not be binding on foreigners. I have no doubt that it is competent now for us to consider the judgment now sued as having the force only of a judgment in foreign attachment. It is void for every other purpose, (a) It is not like a foreign judgment, primd facie evidence, good till impeached. It is void, because the court had no jurisdiction except against the estate attached. (6) It seems implied in Buchanan v. Rucker, 1 Camp. 63, that if Rucker had been served with process (served with process is a technical term — by an officer of Jamaica, in Jamaica, of course), or had defended the action, the judgment would have been good. This means, defendant in Jamaica or had appeared in a suit claiming jurisdiction over him personally. Appearance admits the claim. Kibbe v. Kibbe, Kirby, 119, was rightly decided, and upon right princi- ples. Defendant was of Connecticut. The service was by attachment of a handkerchief, shown to the officer by the plaintiff's attorney to be estate of defendant, and actual notice served on defendant in Connecticut. The Court held, that defendant was not within the jurisdiction of the Massachusetts court, and t.iat the full faith, &c, did not touch this case. (a) This way of considering a judgment good for some purposes and against some persons only, is not new. See Doug. 1, and notes, Appen- dix, 6. A judgment against an executor de son tort cannot be leVied on the lands of the deceased, as a judgment against a rightful executor may. Here the judgment is in the same form ; at least, the character of the party defendant is stated in the same way. 4 Mass. 654; see Graijg v. Starke, 1 Manuscript Reports, 255. See Kirby, 119, to same effect. (b) It could not have been the intention of the .legislatures of Vermont or New Hampshire to authorize their courts to entertain suits against foreigners, or citizens of other States, to bind beyond the property attached. The very assumption of such a power would draw down on the State assuming it the reprobation of every State in the Union. No State would allow the exercise of it to any but themselves. When we undertake to say that the Vermont court had no jurisdiction DECEMBER TERM, 1815. 411 Bryant v. Ela. 2. The next question is, whether the objection arising on the score of jurisdiction is waived by appearance of defendant in the suit in Vermont. It is a general rule that the court must have jurisdiction at the commencement of the suit. Appearance cures defects of service, errors and defects in process. It is a waiver of certain exceptions. But does it confer jurisdiction where the court had none before ? When this was commenced, it was a proceeding in rem, or in the nature of such a proceeding. Does appearance turn this proceeding into a suit against the person ? This is not the case in suits in the admiralty and exchequer in rem ; except where, perhaps, the court may call the parties in a transaction before them, in which case they may proceed in personam. In Jackson v. Jackson, 1 Johns. 424, the action was debt on a judgment of the Vermont court, in a suit for alimony in a divorce cause. The de- fendant appeared by attorney in the suit (see Woodivorth in reply, and Spencer, J.), and made his defence ; and yet it was held that the decree or judgment was a nullity. I quote this case, merely to show that appearance and defence does not confer jurisdiction, where the court had it not before. over this party defendant, we apply to the case the principles of the com- mon law, the general principles of law and justice, the first principles of justice. 5 Johns. 41 ; 8 Johns. 88. These principles bind us all, as well in Vermont as here. As to what belongs to a nation, independent State, its rights, &c, each must judge for itself, where the national courts have not exclusive jurisdiction by the national compact. But each judges not by its own laws, still less by the laws of the other, but by the law of nations. It is a national question, how far the legislature or judicial courts of one nation can exercise jurisdiction over the citizens or subjects of another nation or State. These national questions in our national Constitution are confided to the courts of the Union in some cases. Where they are not, each State is a sovereign, a nation. It would be an extrava- gant construction of the clause of full faith, &c, to suppose that such a surrender [?] was confided to any but the United States, or the State whose subjects are affected by the decision. Each State judges for itself on national questions. A judgment of another, a foreign tribunal, is, in many cases, conclusive; but it is only where by the law of nations such court judges [?] by the law of nations, and the law of nations has given their judgments this conclusive quality. 412 CHESHIRE. Bryant v. Ela. Does the act of constituting an attorney, and defending this proceeding in Vermont, in the nature of a suit in rem, i. e. defending defendant's land attached, give jurisdiction against his person ; does he thereby submit himself, as well as his land, to the disposal of the court. It may be said, though appearance in a trustee suit does not give jurisdiction, yet here is a suit against defendant directly, and he appears, &c. Answer: We regard this as a suit in rem; it may be otherwise in Vermont; in every other State it is a suit against the land attached. Molony v. Gibbons, 2 Camp. 502, only shows that the record was primd facie evidence of jurisdiction, and that the appearance was regular ; just as here we presume C. Marsh was attorney for Ela, and appeared. We cannot presume Ela was within the jurisdiction of the Vermont court ; for the record states the contrary ; and the parties agree, to make truth doubly true, that the record is true. It may be said, appearance in foreign attachment in Eng- land gives jurisdiction, (a) and the suit goes on against the person. If this were admitted, it would not apply. Appearance here does not discharge the attachment ; the suit goes on as before. The attachment is not here to compel an appearance. The appearance does not change the nature of the action. It may be that it does in Eng- land, (b) (a) The foreign attachment is discharged. (b) Here it can have no other effect than it has in an information against property. After appearance, the suit goes on as before. I consider Lawrence v. Smith, 5 Mass. 362, as in point, to show that Vermont court had no jurisdiction except against the land, and that appearance does not give jurisdiction. The defendants were described as of the city of New York. The service was attachment of nominal prop- erty, and summons left with defendants' attorney. Defendants appeared by attorney, and pleaded to the jurisdiction in abatement. Held, the plea was bad ; but held, that the Court will not proceed in the suit, as it does not appear that either of the defendants, or any estate of theirs, is within the jurisdiction of the Commonwealth. All further proceedings were stayed. See Tingley v. Bateman and Trustee, 10 Mass. 343. Decision right. Better reasons might have been given. DECEMBER TERM, 1815. 413 Bryant v. Ela. Have we jurisdiction in this cause in respect of the subject- matter ? On the facts stated in this declaration, could plaintiff have maintained an action in this State, when he sued in Vermont? Could a court in New Hampshire entertain a suit to re- cover a penalty incurred by the violation of a penal law in Vermont? (a) It is clear, no prosecution could be maintained in this State for crimes (offences) committed in Vermont, though by one of our citizens, and where another citizen of this State should be the party more immediately injured thereby. It belongs to the sovereign authority of every independent State to punish all crimes committed within its territory. (6) They are injuries done to the State. The individual sufferer is not regarded. The State is the party injured. The penal laws of one State cannot be regarded or enforced in another State, though another State or its subjects may be injured thereby. They must resort for redress to the courts of the State in which the offence was committed. Though Bryant was the party grieved, yet he does not sue as such. Any other (_?] citizen of Vermont might (it is pre- sumed) have sued. He sues qui tarn ; (c) it is a popular action. That a portion of the penalty belongs to him does not alter the case. An indictment would have lain, doubtless, for the whole, to the use of the State. This proportion is given him by the law of Vermont, to stimulate him to prose- cute an offender against the penal law of that State, (d) (a) The case would be this: One citizen of New Hampshire would recover, in the New Hampshire courts, a penalty against another citizen of New Hampshire for violation of a Vermont statute; f. e., for a crime com- mitted against Vermont. For the present, I waive the question whether any but a citizen or subject of the offended State can be a common informer. No doubt, a citizen of New Hampshire may be prosecuted for an offence against the Vermont law, committed in Vermont. I have considered the question as to what shall give the Vermont court jurisdiction over the offending party. (b) Wheeler v. Peck, 11 Manuscript Reports, 109. (e) In a popular action, it cannot be said that any damage is done to the plaintiff in particular. 1 G. Bacon, 69. ((/) The distinction is between public wrongs and civil injuries. The 414 CHESHIRE. Bryant v. Ela. An action might doubtless be maintained in this State to recover back the usury. Taking the $363.84 was an injury done to Bryant, and, in a civil point of view, to him alone ; no one else could sue for it. It is no other way material in the action in Vermont than as it serves to measure the penalty to be recovered. The same penalty might, by the Vermont statute, have been given for taking one cent under an usuri- ous contract. If a suit on these facts could not have been maintained in this State, on the ground that we cannot enforce against one of our citizens, or any other, a penal law of Vermont ; then, unless the ground is changed by the matter having passed into judgment in Vermont, and so become a debt, we cannot inter- fere. Supposing no such change, we are called upon to give judgment against a citizen of this State for an injury done by him to the State of Vermont. For some purposes the cause of action is changed. The remedy may be different ; when the matter has passed into judgment, it has become a debt. The defendant is precluded from entering into the merits. It must now be taken for granted that the offence was committed ; and the judgment may be enforced like every other judgment, (a) But, though the form of the action may be changed, the purpose, intent, sole object of this suit, is to punish Ela for violating a Ver- mont law. (6) Suppose a fine inflicted for a crime committed in Vermont. Debt would lie in Vermont. Would it in this State ? Is there any difference in this respect between a latter follow the person. The former are local ; none but the courts of the State injured can give redress. 11 Manuscript Reports, 101), 111, 122, 143, 145. A statute confiscating estates for the part taken in the American Rev- olution is a penal law. Ogden v. Folliot, in error, 2 Law Mag. 120; 3 T. R. 726. See 4 Dall. 419; 11 Manuscript Reports above, and p. 145. (a) Qutere. May not Treasurer of Vermont interfere? He has no security for his moiety. Could not Bryant compound? Could a New Hampshire court prevent, as Vermont court might have done, and, if the action there, might still perhaps do? (6) Or, perhaps, to make the punishment declared in Vermont effectual, — to assist their courts in the work of punishment. DECEMBER TERM, 1815. 415 Bryant v. Ela. pecuniary mulct and stripes ? May not our court inflict the one as well as the other ? In this view of the case, the objection is to our jurisdiction, not the jurisdiction of the Vermont court. Can defendant take advantage of this defect of jurisdiction, if well founded, under this plea ? (a) He could, of a want of jurisdiction in the Vermont court. But if they had jurisdiction, and we none, must not this be pleaded ? Does he not admit our jurisdiction by this plea ? (6) But suppose an indictment here for offence against Vermont law. Would not the court be bound, under the general issue, to dismiss the suit, when they discover the cause of complaint ? Suppose it stated in indictment — dismiss ex officio — quash. If stated committed in New Hampshire, and proof in Ver- mont, direct acquittal by jury. Or, if after-pleadings show the fact, would not the court be bound to give the proper judgment, — that defendant go quit ? Qucere, whether Constitution United States affects this ques- tion. 11 Manuscript Reports, 117. Recapitulation. 1 1. The Vermont court had no jurisdiction over the defend- ant. No suit could be commenced against him in Vermont, on personal notice served in New Hampshire. He must be inhabitant or resident in Vermont, or the process served on him there. Jurisdiction is acquired by attachment of land. But, where (a) If oyer of a record were demandable, defendant might have craved oyer, and demurred, as the objection appears on the face of the record. (6) It is held, that, if no court of the State has jurisdiction, defendant may avail himself (in a transitory action) of this defence under a plea which goes to the action. Rea v. Hayden, 3 Mass. 24. Sembte, the rule is general, where no court of the State has jurisdiction, then, by the law of the land, the action cannot be maintained, and this may be shown under nil debet. 1 The " Recapitulation" and " Result " are on separate sheets. Prob- ably only one of these was used in delivering the opinion. So much of each is printed as purports to state points decided. 416 CHESHIRE. Bryant v. Ela. the court have otherwise no jurisdiction, and have it only on account of the land, the jurisdiction is only to proceed against the land. Like debt for. att. [judgment in foreign attach- ment ?], this is to be regarded here by the law of nations, which is the law which, and which only, applies, as a judg- ment against the land. The appearance in Vermont does not change the nature of the suit. . . . This was not a personal suit, but in rem. 2. If Vermont court had jurisdiction over the defendant, and this is a good judgment against him in Vermont, yet, in respect to the subject-matter, it cannot be enforced here. It is to punish defendant for an offence against the State of Vermont. Result. 1. Vermont court had no jurisdiction over the defendant to render a judgment for any other purpose than as affects the attachment. The appearance does not confer any juris- diction beyond what the nature of the suit allows. If the suit had been of a nature to confer complete jurisdiction, the appearance might have cured defects in process, &c. ; but the suit, in its nature, was in rem, and appearance does not change its nature. Appearance may [confer] jurisdiction in a direct suit against him, but this [is], in effect, against land. 2. This court has no jurisdiction of the suit, on account of the subject-matter or cause, which is to enforce a Vermont penal statute. When this court is called upon to carry into effect a judgment where they would have had no jurisdiction in the action for the original cause, they may look into the grounds of that judgment. Judgment on the verdict. 1 1 " And if the defendant, after the service of the process of foreign attachment, should either in person have gone into New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits from the effect of the attachment, he would not thereby have given the court jurisdiction of his person ; since this jurisdiction must result from the service of the foreign attachment. It would be un- reasonable to oblige any man living in one State, and having effects in another State, to make himself amenable to the courts of the last State, DECEMBER TERM, 1815. 417 Bryant v. Ela. that he might defend his property there attached." Parsons, C. J., in Bissell v. Briggs, 1813, 9 Mass. 462. " Chief Justice Parsons, in the case of Bissell v. Briggs, supposes that where proceedings were instituted by process of attachment in one State, against the property of a citizen of another, he might appear in person, or by attorney, to defend his property, without thereby giving the court juris- diction of his person. The court would not, in such a case, I concede, have jurisdiction over his person for any other but the direct objects of the proceedings; and, as far as those were concerned, he would be subjected to the authority of the court. If a citizen of one State should go into another, to claim property seized on attachment, and subject the attaching creditors to costs and expenses which, in the due course of proceedings, should be adjudged to them by a court of competent authority, will it be pretended that he could resist the payment of these costs and expenses, on the ground that he was not subject to the jurisdiction of the court? For all the fair and direct objects of the suit, he was within its jurisdiction. So, if the proceedings were not in rem, but the property of the defendant was attached, to compel him to appear and answer to proceedings in personam, and he did, in fact, appear and litigate the cause with the plaintiff, he could not be heard to question the jurisdiction of that court over his person. I do not think Chief Justice Parsons intended to say more than this : that, when a court had the jurisdiction of the person of a defendant for one purpose, it could not legally bind him by a judgment or sentence in a dis- tinct and different matter." Marcy, J., in Starbuck v. Murray, 1830, 5 Wend. 148, 159, 160. "And he" (Parsons, C. J.) "further held, that if the defendant had appeared to the attachment, it could not have given the court of New Hampshire jurisdiction of his person." " On this last point Judge Parsons was probably mistaken. The at- tachment is a mode by which to compel the appearance of the defendant, and if he do appear, and contests the validity of the claim, there seems to be no reason why he should not be bound, in personam, by the judgment." Lincoln v. Tower, 1841, 2 McLean, 473, 482. " Chief Justice Parsons, in Bissell v. Briggs, goes so far as to intimate that, even should the defendant appear in the attachment suit, this does not give jurisdiction to the court to render against him a judgment in per- sonam, which would bind extra-territorially ; but this cannot now be main- tained." Whart. Confl. Laws, § 830, n. y. In Noyes v. Butler, 1849, 6 Barb. 613, 620, Paige, P. J., understands Parsons, C. J., as asserting that a general appearance by the non-resident defendant " should be deemed an appearance merely to protect the prop- erty attached; and that he did not, by such appearance, give the court ... in New Hampshire jurisdiction of his person." There may, of course, be essential differences, both in the form of entering appearances, and in the nature of the pleas filed, on the part 27 418 CHESHIRE. Bryant v. Ela. of non-resident defendants, as indicated in the following hypothetical cases: — 1. A non-resident defendant, whose property has been attached without personal service on him, appears and pleads to the merits, without object- ing to the jurisdiction. A judgment in personam rendered against him under this state of facts has repeatedly been held enforceable in other jurisdictions. See, for in- stance, Mayhem v. Thatcher, 1821, 6 Wheat. 129 ; Shumway v. Stillman, 1831, 6 Wend. 447 ; Blyler v. Kline, 1870, 64 Pa. St. 130; Pekley, J., in Downer v. Shaw, 1851, 22 N. H. 277, 281. In Noyes v. Butler, 1849, 6 Barb. 613, 620, Paige, P. J., inclined, as matter of principle, to the opposite view, but felt bound by the authori- ties. See also Platt, J., in Pawling v. Bird's Ex'rs, 1816, 13 Johns. 192, 207. 2. The defendant appears specially for the sole purpose of objecting to the jurisdiction; and appears no further after that question is decided against him. According to Wright v. Boynton, 1858, 37 N. H. 9, such a restricted appearance will not give to the court jurisdiction of the person, if they had none before. (But the objection to the jurisdiction is held to be waived, if the defendant, at the same time, submits to the court any other objection. Merrill v. Houghton, 1871, 51 N. H. 61, and cases there cited.) In Bigelow on Estoppel, 2d ed., p. 203, it is said : " It is probable that if there had been issue raised between the parties upon this point " (juris- diction), " and this issue had been decided in favor of the jurisdiction, the decision in this particular would bar a re-trial of the question. And this, too, though it should be conceded that the defendant's appearance, being merely entered to test the question of jurisdiction, had not, per se, given the court jurisdiction to try the merits of the cause." But see the im- perfectly reported case of McNab v. Bennett, 1872, 66 111. 157; and Toledo, W., and W. Railway Co. v. Reynolds, 1874, 72 111. 487. In Bryant v. Ela, it might, perhaps, have been argued that the defend- ant's first plea impliedly admitted the jurisdiction of the court, in case the property attached was proved to be his ; and that therefore the finding against him on the issue of ownership estopped him from subsequently denying the jurisdiction. 3. The defendant appears and objects to the jurisdiction. This objec- tion being oyerruled, he then pleads to the merits. This was the case in Bryant v. Ela. Qucere, whether the defendant would have been in a better position to deny the validity of the judgment, if his plea to the merits Iiad been filed under protest, with an express reservation of all previous objections. See Coleman's Appeal, 1874, 75 Pa. St. 441. 4. The defendant asks leave to appear specially for the sole purpose of DECEMBER TERM, 1815. 419 Bryant v. Ela. protecting his property; i. e., to prevent the rendition of a judgment binding his attached property. If this leave is granted, would such a limited appearance give jurisdic- tion of the defendant's person? And, if a judgment for the plaintiff would not be binding on the defendant personally, how far would a judg- ment for the defendaut be binding on the plaintiff by way of estoppel? Suppose an action of contract is brought to recover an alleged claim of $1, 000. Property attached, valued at $100. Defendant has leave to appear specially to prevent judgment against the property attached. He sets up a defence which goes to the merits of the entire claim. Issue is joined, and found for the defendant. What judgment shall be entered? Will the judgment estop the plaintiff as to the whole ten-tenths of his demand, if the defendant ran the risk of losing (by an adverse decision) only oue- tenth of the amount? Perhaps some provision as to the form and effect of the judgment should be inserted in the order of court granting leave to enter the special appearance. If leave to enter a limited appearance is refused, and the defendant then, under protest, pleads to the merits, is a subsequent judgment in personam binding on him in another State? That a voluntary appearance confers jurisdiction of the person is elementary. But the defendant would argue that his appearance was not " voluntary," pleading to the merits being the only method left to defend his property attached. The plaintiff, on the other hand, might argue that the defendant ought not to be per- mitted to take his chance of obtaining a judgment which would be con- clusive against the plaintiff as to the entire cause of controversy, without subjecting himself to the rendition of an adverse judgment, equally far- reaching in its results as against himself. As to the second point decided in Bryant v. Ela, that case is in direct conflict with Healy v. Root, 1831, 11 Pick. 389. In Spencer v. Brock-way, 1824, 1 Ohio (Hammond), 259, a suit was maintained in Ohio upon a judgment rendered in Connecticut, in favor of the State treasurer, " on a bond of recognizance." In State of Indiana v. Helmer, 1866, 21 Iowa, 370, a suit was maintained in Iowa upon a judgment rendered in Indiana under the Indiana bastardy statute. 420 CHESHIRE. Lewis r. Foster. Seth Lewis, Defendant in Review, v. Henry Foster, Plaintiff in Review. A. brought an action of debt against B.,for a penalty given by statute, and recov- ered judgment. After judgment, tbe statute was repealed. B. then reviewed. Smith, C, J., thought that the repeal did not entitle B. to judgment on review. But the contrary was afterwards held in the Superior Court, to which the cause was transferred. This was an action of debt, for a penalty, founded on § 3 of the statute of Dec. 16, 1796, entitled " An Act regulating Fees," which provides that any one taking more than the legal fee " shall forfeit and pay, to the person or persons suing for the same, the sum of $30 for ever} r such offence ; to be re- covered by action of debt, in the Court of Common Pleas ; besides being liable to an action for damages, by and for the party injured, to recover back the sum or sums so unlawfully taken." The suit was commenced on March 30, 1812, and (at May Term, 1813) previous to June 10, 1813, had been tried on the general issue, and a verdict returned for the plaintiff, and judgment rendered accordingly. The defendant reviewed the cause, and it was again tried at October Term, 1815. At this trial a verdict was taken for the original plaintiff, subject to the opinion of the Court upon the validity of the objections raised by the defendant; one of which was, "that the section of the act of Dec. 16, 1796, imposing the penalty, was repealed, without any saving clause, by § 3 of an act passed June 19, 1813." 1 The case appears to have been argued at December Term, 1815, and to have been considered by the Court. Smith, C. J., committed some views to writing, from which the following is an extract : — The second section of the act regulating fees subjects the 1 Statement of case compiled from Judge Smith's papers and the report in 1 N. II. 01. DECEMBER TERM, 1815. 421 Lewis v. Foster. party (say, deputy sheriff) taking more than lawful fees (the fees prescribed by statute) to the penalty or forfeiture of $30 for every such offence, to be recovered by any person who will sue for the same by action of debt in the Court of Common Pleas. This clearly amounts to a prohibition from taking be} r ond the legal fees. It makes such taking unlawful. But it is equally clear that the repeal of the section in ques- tion, though it did not make the act lawful, which was unlawful when committed (1 Comyns on Contracts, 39 ; 1 H. Bl. 65), yet had such an operation that the offender could not be prosecuted and punished by indictment or at the suit of the State. Judgment must be pronounced before the repeal. It is fairly to be presumed, that if the State repeal the law, with- out any saving, all penalties and forfeitures accruing to the State were remitted. Commonwealth of Pennsylvania y. Duane, 1 Binn. 601, is in point. So it is laid down in Hawk. P. C. (B. I. c. 41, § 6, p. 169) that "if one commit an offence which is made felony by statute, and then the statute is repealed, he cannot be punished as a felon in respect of that statute." So, in United States v. Passmore, 4 Dall. 372, it was held, that the repeal of the bankrupt law was a bar to any prosecution for perjury previously committed under it. It may be a question whether the repeal of the law under consideration at all affects plaintiff's right to prosecute to final judgment an action instituted before the repeal. This doubt is founded on the distinction between prosecutions on penal statutes at the suit of the public and a private person. It is very clear that the attorney-general could not enter a nolle prosequi in this suit. Have the legislature the power to do so, to deprive the plaintiff of the costs accrued while innocently pursuing a lawful action, and, still further, to subject him to the payment of costs to an offender? If the act had been temporary, perhaps plaintiff could not complain ; but here it was without limitation. As it respects the plaintiff, the [repeal- ing] act is retrospective. It introduces a new rule for the decision of his cause ; one which takes from him the right to a sum of money, — a right which was vested in him. But the 422 CHESHIRE. Lewis v. Foster. legislature have not said that the repeal shall bar the plaintiff's action. The question is, whether a simple repeal of the statute on which his action is founded has this effect and operation. It bars all indictments and prosecutions at the suit of the State. Its being retrospective works no injury to any citizen ; and the legislature are the constitutional judges of what regards the welfare of the State. A statute may have one construction as it respects the pub- lic, and another as it respects individuals. If the legislature could not, by the Constitution, pass a law devesting the right acquired by the plaintiff to the penalty by commencing his suit, then the act cannot be set up as a bar. They may repeal all laws ; but they must exercise this power in such a manner as not to violate the Constitution ; and the courts are bound to see that a repeal in any particular case is not attended with this effect. Before this statute, the taking of $3.90 [fees] would not authorize this action. The repeal did not make the act com- mitted by defendant lawful. An act, unlawful at the time, does not become lawful by repeal of the statute which made it unlawful at the time. 1 The English statute which prohibited insurance of lottery-tickets was repealed. While in force, an insurance was made and the contract of insurance executed, i. e. the premium and losses paid. It was held that the repeal of the statute did not make the insurance lawful. It was still unlawful under the repealed statute, though lawful at common law ; but could not be enforced, i. e. the penalty could not be enforced. If the contract of insurance had not been executed, the repealed law could not now be set up against it. 1 H. Bl. 65. Every thing done under the statute, as it was lawfully done, remains always so. Now the suit was lawfully commenced. The right to the penalty attached. The legislature cannot declare that to be unlawful which was lawful, and cannot take away a right lawfully acquired. The rights of Lewis are saved, because the legislature could not take them away. We must so con- 1 Richakdson, C. J., in Roby v. West, 1828, 4 N. H. 285, 287. DECEMBER TERM, 1815. 423 Lewis v. Foster. strue the repealing act. We may give it effect as far as the State is concerned, and all persons who have acquired no rights under it. Further we cannot go ; and further the legislature cannot go. Couch, qui tarn, v. Jeffries, 4 Burr. 2460, was an action for the penalty of not paying the stamp duty upon an indenture of apprenticeship. After verdict the parliament passed an act, allowing the persons who might have incurred the penalty to be relieved on payment of the duties. It so far repealed the former, statute, that, on compliance with the conditions of the new, the party offending was discharged from the penalty prescribed in the former act. The words were, that the person paying the duty, &c, shall be acquitted and discharged of and from the said penalties ; and there was no saving for actions already commenced. It was held that the legislature intended only future actions ; otherwise it would be punish- ing the innocent instead of the guilty. It could not be the true construction of the act to take away a vested right and punish the innocent pursuer of it with costs. It meant only actions to be commenced after the duty paid. As it would have been unjust to construe the act of parliament so as to embrace actions pending, it was construed not to extend to actions brought prior to the making of it. So, here, as it would be unjust and unconstitutional to construe the repeal to affect actions pending, it shall be held not to embrace them. The English Statute of Frauds took effect June 24, 16V7. A suit was brought, afterwards, on a parol promise made before that time. The words of the statute were, that no action should be brought, &c. It was held that the statute only applied to actions on parol promises made after the statute, because a contrary construction would make the act repugnant to common justice. 7 Johns. 503, 504. Here the statute repealed the common law ; but it was held that it should oper- ate prospectively only, as it would be unjust to give it a retro- spective operation. Dash v. Van Kleeck, Sheriff of Albany, 7 Johns. 477. The New York statute provided that a debtor might have the lib- erties on giving a bond to the sheriff ; and the court deter- 424 CHESHIRE. Lewis v. Foster. mined that where the debtor escaped and returned, or was retaken before action brought, that this, though a good defence to an action for the escape at common law, was no defence under the statute. On this construction of the statute, this action was brought against the sheriff for an escape. After issue joined, and before the trial, the legislature passed an act concerning escapes, which provided that nothing in the former acts shall be so construed as to prevent any sheriff, in case of escapes, from availing himself, as at common law, of a defence arising from a recaption on fresh pursuit, &c. It was held that this, whether considered as a repeal of the old statute, and as introducing a new rule for the government of the past case, or as declaring the interpretation of the former statutes, for the direction of the courts, was no bar to the action commenced before the act was passed. It should be construed to extend only to actions commenced after the passing of the act ; because an act of the legislature is not to be construed to operate retrospectively, so as to take away a vested right. It was held to be a principle of universal juris- prudence, that laws, civil or criminal, should be prospective, and should not have a retroactive effect. Our constitution was cited on the subject of retrospective laws; viz., that they are highly injurious, oppressive, and unjust, and should not be made either for the decision of civil causes or the punishment of offences. And it was not doubted that this article inhibited the legislature from passing any law which should deprive a party of a vested right, which should punish an innocent man pursuing his right with costs in favor of an offender. 1 But it seems to me that the present case stands on grounds still stronger for the plaintiff. This is a process brought by Foster to reverse a judgment rendered against him in this 1 The well-settled judicial doctrine, that, the law-maker will not be presumed to have intended that a statute should have a retrospective operation, has been adopted by the legislature as a rule for the interpre- tation of future repealing acts. Gen. Laws, c. 1, §§ 33, 34; Perley, C. J., in Dickinson v. Locell, 1858, 36 N. H. 361, 366; Perley, C. J., in Colony v. Dublin, 1855, 32 N. II. 432, 434, 435; Lakeman v. Moore, 1855, 32 N. H. 410; Farr v. Chandler, 1872, 51 N. H. 545. DECEMBER TERM, 1815. 425 Lewis v. Foster. court, May Term, 1813. This reversal may be either on account of want of merits (by the jury), or that it cannot be sustained in point of law, — that there was, or is, no law to war- rant it. Our writ of review is a writ of error, and more. It is now to be used as a writ of error, the jury having found for the plaintiff on the merits. The plaintiff, Lewis, asks for no judgment in his favor. He has a judgment, and has ob- tained satisfaction. The question is, whether that judgment be erroneous or not. If erroneous, this court are now bound to reverse it, and give such judgment as the court in 1813 ought to have given, and to restore Foster to what he has lost by reason of that erroneous judgment, and to give him his costs from the beginning. 1 One can hardly maintain the requisite gravity, in the dis- cussion of this question. We are called upon to say whether the court, at May Term, 1813, erred in giving judgment on a law which was then in full force, but which was repealed in June following. In reversing that judgment, we must, more- over, say that, when a statute is repealed, all acts done under it whilst it was in force are not good, that is, are void or voidable. This is said to be the case when a statute is de- clared to be null. It is the case where the statute is null, that is, unconstitutional. Upon this doctrine, I think, nothing would be easier than for the legislature to ruin every indi- vidual in the State. But so far is this from being the law, that the contrary is the law. All acts done under a statute whilst it was in force are good. And will it be said that acts in pais are good, but that the solemn judgments given in courts of record are null and void ? A contract which is declared by a particular statute to be illegal is not made good by a repeal of that statute after the contract has been executed ; what is done and completed under the statute always remains the same. So what was legally done and completed under a statute always remains done, completed, and legal. The law may be changed for the future, but a new rule for the past cannot 1 Since the statute of July 2, 1838, no costs are recoverable on re- view, except those accruing in the actiou of review. See Gen. Stat. c. 215, § 13. 426 CHESHIRE. Lewis v. Foster. be made. It is an absurdity in terms. A new rule of con- din t prescribed for past ages! This would be inverting the order of legislation. To say that the repeal in question shall have the operation contended for is in effect sa\ing that the legislature can annul a judgment. This is as effectually done by removing the foundation on which it stands as by reversing it in so many words. 7 Johns. 490, 492. Spencer, J., denied the legis- lature this power. A law can be repealed by the lawgiver, but the rights which have been acquired under it while it was in force do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced. Puffendorf, B. I. c. 6, § 6. I now go on the hypothesis that the legislature can con- stitutionally repeal a law under which parties have acquired inchoate rights, not perfected by full and complete satis- faction ; e. cj., while Lewis was pursuing his right to the penalty of $30 incurred by defendant, legislature could in- terpose an effectual barrier in his way, by repealing the law on which his action was founded ; so, if the public were prosecuting defendant, for this offence, by indictment or information, and the legislature should, as they doubtless might, repeal the law before final sentence or punishment inflicted, the offender, in these cases, would be saved from the pains and penalties he had justly incurred. One would think, as this would be a consummation de- voutly to be wished by every offender, so it would satisfy every reasonable rogue. But this defendant goes farther. He asks us to pay him for his suffering, to give him back the penalty he has justly paid for his offences. He is not even contented with that. He must have his costs from the beginning; and the costs must be paid by one legally pursu- ing a public statute of the State, and to an offender. A State which should thus deal by its good and bad citizens would not long have any obedient subjects. Lord Mans- field, in Couch, qui tarn, v. Jeffries, stated a case almost as bad as this, intending to state what all would agree was absurd and unjust. DECEMBER TERM, 1815. 427 Lewis v. Foster. It is to be remembered that, even in our system of juris- prudence, the trial at May Term, 1813, was a final trial ; and that on review, though the party may have the benefit of any new and further evidence, the law must be the same. An individual in this State once thought he had some right to complain that the legislature, by repealing a statute, took away his right to review his action. This defendant wishes not only to have the right of review, but to have the legis- lature pave the way for a reversal, by changing the law applicable to the plaintiffs case, i. e. take away the plain- tiff's law. The repeal of this law has done the defendant no injury ; but, upon his construction, it will have done the plaintiff a most cruel injury. [It is supposed that the above views were communicated to the other judges in consultation, but not publicly announced. Judge Smith's minute on the papers is, — " December, 1815. No. 29 continued. Ellis hesitante."] [The cause, remaining pending, was transferred, by the judi- ciary act of 1816, to the Superior Court; and was there decided at May Term, 1817. The opinion, as reported in 1 N. H. 61, is as follows:] — Richardson, C. J. We are of opinion that the plaintiff's right of action is taken away by the repeal of the law on which it was founded. It is clear, if the law had been re- pealed before the first judgment, the plaintiff could not have recovered. United States v. Mann, 1 Gall. 177; Yeaton v. United States, 5 Cranch, 281. By our statute of Feb. 9, 1791, § 12 ; 1 Laws, 103, it is provided that a cause shall be tried upon review in the same manner as if no judgment had ever been given. The first judgment was rendered for the plaintiff, subject, by law, to a review, in which the whole merits of the case could be drawn in question. Every right he acquired by that judgment was subject to be lost on review of the cause. We are to try the cause in the same manner as if there had never been a judgment ; but 428 CHESHIRE. Lewis v. Foster. ■we now find no law that will warrant a judgment in favor of the plaintiff. The verdict must be set aside, and a verdict entered for the defendant. Judgment for the defendant. 1 1 The Superior Court afterwards virtually overruled their own decision in Lewis v. Foster, and used language which supports Smith, C. J., in his positions: 1st. That the legislature had not the power to defeat the plain- tiff's action by repealing the statute on which it was founded; 2d. That even if a repeal, during the pendency of the original action, would have defeated the plaintiff, still a repeal after the plaintiff had obtained judg- ment could not avail the defendant upon a review. The first position is sustained by Dow v. Norris, 1827, 4 N. H. 16, which decides that, where a statute gives a penalty to an individual, his right cannot be taken away by a repeal of the statute, although no pro- ceedings for its recovery have been commenced at the time of the repeal. See also Richardson, C. J., in Woart v. Winnick, 1826, 3 N. H. 473, 480, 481 ; Sawyer, J., in Lakeman v. Moore, 1855, 32 N. H. 410, 412, 413 ; Pembroke v. Epsom, 1862, 44 N. H. 113. In explanation of the decision in Lewis v. Foster, it was said by Richardson, C. J., that the constitu- tional objection to the validity of the repealing statute was neither raised by counsel nor considered by the court. See 4 N. H. 20; 3 N. H. 480,481. As to the second point, the opinion of the Superior Court, reported in 1 N. II. 61, 62, is based upon a construction of the statute relative to reviews, which is quite irreconcilable with subsequent decisions of the same court. " From the very nature of the case, no matter which has arisen since the judgment can be pleaded in bar of the original action. If the verdict and judgment were originally right, nothing which has since occurred can make them wrong." Richardson, C. J., in Burley v. Burley, 1833, 6 N. H. 204. " It is not to be disputed that the cause is to be tried upon review in the same manner as if no judgment had been rendered therein. Kut what is the meaning of this? Surely not that every thing which takes place after the first trial shall be used in evidence on the second trial, in the same manner as if it had taken place before the first trial. ... It seems to us that the meaning of this clause is only this: the first judgment shall have no weight in the trial of the cause the second time, but shall be wholly disregarded, as furnishing no evidence of the real facts of the case for or against either party." Richardson, C. J., in Messery. Swan, 1828, 4 N. H. 481, 487. ". . . The controversy rests on the merits as they originally existed." Upham, J., in Knox v. Knox, 1841, 12 N. H. 352, 354. See also Otis v. Currier, 1845, 17 .N. H. 463; Edgerlyy. Emerson, 1827, 4 N. H. 147; Foster v. Plummer, 1849, 3 Cush. 381, Shaw, C. J., 383; Foster, J., in Zollar v. Janvrin, 1869, 49 N. H. 114, 117. The final ver- DECEMBER TERM, 1815. 429 Swett v. Horn. GRAFTON, DECEMBER TERM, 1815. Benjamin Swett v. Amos Horn. An officer attached a horse, and delivered it to a receiptor, who engaged to return it on demand. The receiptor allowed the horse to' go back into the debtor's possession, where it was attached, by another officer, upon another writ against the debtor. The receiptor then took the horse from a stable, where it had been placed by the second officer, and, without any demand on him, delivered the horse to the first officer, who received it in ignorance of the second attachment. Subsequently, the second officer regained possession of the horse. Held, that the delivery by the receiptor to the first officer was not a compliance with the receiptor's engagement. Trover for a horse and mare. Plea : the general issue. Trial. Verdict for plaintiff, which the defendant moved to set aside. Two questions were considered at the Law Term. The de- dict, on review, takes effect as of the date of the former verdict. Foster, J., in Shepard v. Hatch, 1873, 54 N. H. 96, 99. Where the writ of review is brought by a defendant against whom the original plaintiff has obtained judgment, " it is. in effect, a new action to recover back, in the shape of damages, what the defendant alleges has been wrongfully obtained from him, by an erroneous decision, upon the first trial ; the mode by which he attempts to recover being by trying over again the original cause of action, and making it appear that the plaintiff has no right to sustain a suit against him, or, at least, was not entitled to recover so much as he has obtained. The proceeding is often called an action of review. And, when thus brought by a defendant, it may, so far as its operation is concerned, be considered analogous to an action for money had and received, to recover back money obtained by duress or some false claim." Parker, C. J., in Knox v. Knox, 1811, 12 N. H. 352, 358. In Lewk v. Foster, the " new matter arising after the first judgment " was not of such a nature as to avoid the plaintiff's action from the be- ginning; nor did it arise from a voluntary act of the original plaintiff. Upon both these grounds the case is distinguishable from Barker v. Wen- dell, 1841, 12 N. H. 119. 430 GRAFTON. Swett v. Horn. cision upon one of these questions is not here reported. The facts material to the understanding of the decision upon the other point are stated in the opinion. 1 Smith, C. J. The case is this : — The plaintiff, a deputy sheriff, June 2, 1812, attached the horses in question, on writ, Samuel $ James Hutchins v. Clarke, and delivered them to defendant [on his written promise], to re-deliver on demand. Defendant suffered them to return to the debtor's possession. Another writ was ob- tained against the same debtor in favor of another creditor (Newgate State Prison), and delivered to another deputy sheriff [Edson], who, finding the horses in Clarke's posses- sion, July 4, 1812, attached them, and took them into his pos- session. The defendant, to get rid of his responsibility to plaintiff, took the horses from Edson's custody, i. e. from sta- ble in which he had put them, and delivered them to plaintiff, though plaintiff had made no demand. Judgment was not yet recovered. Plaintiff, then ignorant of the fact of any lawful attachment, or any attachment, by Edson, received them (it is not stated whether writing delivered up to defendant). Edson, immediately after, demanded the horses of plaintiff. Plaintiff then offered them to defendant (to settle the matter with Edson, and judge for himself whether Edson could hold). Defendant refused to accept. Edson then took the horses ; and plaintiff now calls on defendant, on the ground that the delivery, July 4, 1812, was unlawful, and acceptance by mistake. The contract 2 was that the delivery should be such as that Hutchins's execution might be levied ; whereas defendant had conducted in such a manner that no such delivery could be made after Edson's attachment. He had disabled himself from making a proper delivery. Edson had a lien on the horses, and could lawfully take them from plaintiff; and all by defend- ant's unfaithful conduct as bailee. 1 Statement of case by compiler. 2 I.e., in legal construction. The report of the judge who tried the cause shows that, in words, the contract was "to return them on demand." DECEMBER TERM, 1815. 431 Swett v. Horn. The intention of the parties in the contract sued is appar- ent. Defendant was bound to same safe-keeping as plaintiff would have been ; i. e., to have the horses forthcoming on Hutchins's execution. He broke his contract when he suf- fered the horses to return to debtor's possession ; i. e., he ran the risk of any other creditor attaching, debtor selling, &c, and so disabling him to perform. The effect of this engage- ment was to return the horses to plaintiff, so that the execu- tion might be levied on them, and plaintiff exonerated from his responsibility to S. & J. Hutchins, the creditors. There was an apparent delivery, but no real delivery. It was a fraudulent delivery, an unlawful one, a deceptive one. The property was changed, and the delivery availed nothing, left plaintiff liable to S. & J. Hutchins. I think this performance comes the nearest the case in the books, where a man engaged to deliver a horse ; he poisoned him, and then delivered him. This was held no performance of his engagement. 2 G. Bacon, 82, and note. Judgment on the verdict. 1 1 " If the receipt is in common form, and the officer lawfully demands the property, the receiptor must deliver it to him free from intervening rights, or become liable. If the property has been sold, it could not avail the receiptor to deliver it to the officer, subject to a title in a third person, acquired since the receipt was given. It must, when delivered, be subject to a levy in the same manner as when he received it, or the receiptor will not be exonerated." Hibbard, J., in Batchelder v. Putnam, 1873, 54 N. H. 84, 86. UNITED STATES DISTRICT COURT. NEW HAMPSHIRE DISTRICT, MAY, 1801. William Kennedy, Libellant, v. Ebenezer Ricker, Hiram Rollins, and John Lord, Owners of the Brigantine Washington, and Two Hogsheads of Molasses. An American vessel, captured by a French privateer; Nov. 25, 1800, was rescued from the captors, Nov. 28, 1800, by the captain, who was also a part-owner, assisted by one seaman, the rescuers being ignorant of the convention between the United States and France, entered into Sept. 30, 1800. Upon a libel in the United States District Court, heard and determined prior to the final ratification of the treaty, salvage was allowed to the seaman. Libel for salvage, for rescuing the brigantine from the French captors, Nov. 28, 1800. Plea : denying right to salvage. William Kennedy, the libellant, deposes that he was a mariner on board the brigantine Washington. The brig was taken by a French privateer between St. Vincent and St. Lucia ; all the hands taken out except the captain (Ricker, one of the respondents) and the libellant ; and six of the privateer's men put on board : steered for Guadaloupe. The brig remained sixty hours in possession of the French captors. The captain and the libellant agreed to attempt a rescue. The captain (Ricker), to induce the libellant to assist in the enterprise, said that one-eighth was allowed for salvage in such cases. About six o'clock in the morning of Nov. 28, 1800, Ricker and the libellant attacked and mastered the Frenchmen, and MAY, 1801. 433 Kennedy v. Ricker. the same day, about three o'clock P.M., carried the vessel into Dominica, Prince Rupert's Bay. When they came into this port, the captain of an English armed brig claimed to share salvage with Ricker and the libellant, and threatened the libellant with corporal punishment if he would not swear that the English brig was in sight at the time of the rescue. This the libellant refused to do. The English captain let him go. At the time of the rescue no wages were due the libellant. Matthew Marsh, sworn for libellant, deposes he purchased the brigantine Washington, February, 1801, for $8,333, cash, at Portsmouth. She had undergone repairs, say $100 or $200. Property was all condemned in the Islands in December last. This vessel offered for $8,000 in Boston. Vessels rose in value. Jacob Cutter, sworn for libellant. Molasses, February, 1801, worth here $55 to $58. Insurance fell when convention with France ratified by United States Senate, not before. Property of this kind about half the value in the West Indies as here. Capt. Wardrobe, sworn for libellant. No abatement of insurance till convention ratified by United States Senate. Condemnations speedy in West Indies, sometimes twenty -four hours, never more than a week. M. Simes confirms Wardrobe, and adds that property was often sold without condemnation. Capt. Ricker, sworn by consent for respondents. Does not recollect telling Kennedy any thing about salvage till after recapture. Place of rescue was eight leagues from Dominica, and eighteen leagues from Guadaloupe. Confirms Kennedy's testimony, except as above. The vessel was bound from Surinam to Boston when captured. Jf he had known of convention with France, would not have risked recapture. Heard of the convention at Dominica. Might have arrived at Guadaloupe as soon. Property at Dominica generally valued fifty per cent below the value here. Mr. William Seavey, sworn for respondents, agrees with Ricker as to the value of property in West Indies. 28 434 NEW HAMPSHIRE DISTRICT. Kennedy v. Ricker. May 25, 1801. Judgment of the Court. Smith, J. 1 The brigantine Washington, Capt. Ricker, with a cargo of sugar and rum, on her homeward voyage from Surinam to Boston, on Nov. 25, 1800, off St. Lucia, was cap- tured by a French privateer, the Fleur de Mer, of Guadaloupe. The mate and six of the crew of the brigantine were taken out, and six Frenchmen belonging to the privateer put on board, and the brig ordered to make for Basseterre, Guada- loupe. On the morning of the 28th of the same November, after the brigantine had remained about sixty hours in posses- sion of the captors, Capt. Ricker and the libellant (who were the only persons of the former crew on board), having previously concerted a plan for retaking the brigantine, rose upon the captors and mastered them. This rescue happened when the vessel was to the leeward of Dominica and in sight of Guada- loupe. About three o'clock the same day the rescuers carried the vessel to Prince Rupert's Bay in Dominica, and from thence to Roseau, another port in the same island, where the captain made the protest which is filed in the cause. From thence the captain proceeded, with the brig, to St. Christo- pher's, and to St. Thomas's, and from the latter place to Boston, where the greatest part of the cargo was sold. The Washing- ton then came to this port (Portsmouth) with the two hogs- heads of molasses now in the custody of the marshal. The brig had been sold by the owners before this suit was insti- tuted. Upon these facts arises the claim of the libellant, if he has any, to salvage. The owners, Ricker, Lord, and Rollins, appear on the moni- tion which issued, claim the molasses seized, and say that for any thing set forth in the libel (which comprehends in substance the facts just stated) salvage ought not to be decreed. Salvage is the recompense paid to persons who have assisted in saving ships or goods from the dangers of the seas, from pirates, or from enemies. 3 Wooddes. 132, n./. 1 Judge Smith was then one of the justices of the United States Cir- cuit Court, and sat, upon this occasion, in the place of the United States District Judge. MAY, 1801. 435 Kennedy v. Ricker. I. It is contended, in this case, that there was no capture by any enemy, and consequently no right to salvage for rescue or recapture. It must be admitted that a seizure by a friend or neutral, though unlawful and such as may subject the seizors to dam- ages, will not authorize a recapture or rescue. 1 Rob. Adm. 233. No doubt is entertained in this case, on either side, that the captors acted under the authority of the French Republic. Whether there was, at the time of this capture, such a state of hostility existing between the United States and the French Republic as to raise a title to salvage for American goods retaken from the French is the question. To consti- tute such a state of hostility, it is not necessary that there should be a declaration of war on either side. 2 Heinec. 192. Is there a single individual in this country who does not know that, for a long time before this capture, predatory hostilities against our commerce had been carried on by the public and private armed vessels of the French Republic ; and that American property, in the French courts, had been uniformly condemned as enemy's property ? But what seems decisive on this question is, that the Wash- ington, at this very time, was authorized, by the laws of the United States, to resist search and seizure by French cruisers. Act June 25, 1798, 148. This is a declaration, by the supreme power in this country, that France was not a friendly power ; because, in such cases, it is unlawful to resist search or seizure. If it was lawful to resist seizure in this case, it must be law- ful to rescue the property seized. Accordingly the same law of Congress provided that armed vessels and merchant vessels of the United States might lawfully recapture vessels taken by the French. Act March 3, 1800, 38; Act May 28, 1798, 120; Act June 25, 1798, 148. It would be absurd to say that the owners might not lawfully do that for them- selves which others might lawfully do for them. If the French are not to be considered as enemies, then they are friends. For there is no intermediate state as it 436 NEW HAMPSHIRE DISTRICT. Kennedy v. Kicker. respects questions of salvage. And then this rescue is highly reprehensible, and an injury done to the owners, inasmuch as it deprives them of their claim to costs and damages for an unjust seizure and detention. Will the owners, in this case, gravely contend that they have suffered an injury by the doings of Rieker and Kennedy? And, if they should so con- tend, where would they find persons credulous enough to believe them ? But, besides all this, I am clearly of opinion that it is not competent for the owners to set up this defence against the present claim to salvage. Rieker, the other salvor, was him- self both an owner and captain. If we may credit him, he was the moving cause of this rescue. Now, in both these capacities, the other owners are bound by his acts. 1 Rob. 232. And it is as much against law as it is against good con- science to suffer them now to object to the necessity and legal- ity of an act which originated with themselves, and in which they bore so considerable a part. II. But it is said, admitting that there was once such a state of hostility subsisting between the United States and France as to raise a title to salvage, the situation of the two countries was totally changed by the convention signed the third of Oc- tober last (1800). But this is ascribing too much influence to such an instrument. Notwithstanding the convention, even when ratified on both sides, the hostile character of the two nations may remain the same as before. The convention only imposes an obligation on the two nations, mutually to restore property captured before the exchange of ratifications. But I do not think that the courts of law can take any notice of the treaty till ratified by the supreme power on both sides ; any more than they could take notice of an act of Congress before it is laid before the President for his approbation. Courts of law are bound to decide according to the existing state of things. There is every reason to conclude that the convention will be ratified ; yet it may not ; and it would be cruel, as it respects the libellant, to dismiss his claim, if other- wise well founded, on a contingency which may never happen. But I think we may lay all this out of the case, for the rea- MAY, 1801. 437 Kennedy v. Ricker. sons already mentioned. The owners of the Washington are bound by Ricker's doings. It is too late for them now to elect to consider the French as friends, or to rely on the convention for security of their property. They have chosen a different course. They requested, and they had, the aid of the libel- lant, at the hazard and peril of his life. And it surely comes with a very ill grace from them, now that the benefit is con- ferred, and every thing done, and faithfully done, on his part, to refuse him the just recompense of reward. If the danger to which their property was, exposed appears less to the owners now that it is past (which is a common case) than it did then, this does not lessen the merit of the libellant's services. At all events, I think it must be admitted by the owners them- selves, by a very moderate exercise of candor, that it is much better for them to have their property restored on a reasonable salvage than to incur the risk of a condemnation before the summary tribunals of Guadaloupe, and, in the event of a con- demnation, to seek indemnification from the justice of the French, which has become of as little estimation in modern times as the Punica fides of ancient days. The other objections which have been urged against the claim of the libellant I can hardly suppose were expected to have much influence in forming the judgment of the Court. The right of salvage, in cases of rescue as well as recapture, and the right of mariners to be salvors as well as strangers, are founded on principles of justice and equity, and well estab- lished by judicial decisions. 1 Rob. 233, 234. On this part of the case I have never found myself for a moment inclining to doubt ; and I have no hesitation in saying that the causes set forth in the libel are sufficient, that they are well supported in evidence, and, consequently, that the libellant is entitled to a reasonable recompense for his services in effecting the rescue. This claim is founded on the jus gentium. 1 Rob. 263, n. I wish the same law which gives the right had laid down some rule to guide my judgment as to the quantum of reward. If this vessel and cargo had been recaptured by a public vessel of the United States, the salvage would have been one- 438 NEW HAMPSHIRE DISTRICT. Kennedy v. Ricker. eighth ; if by a private vessel, acting under authority from the government of the United States, one-sixth. Act March 3, 1800, 38. It is not necessary, in this case, that I should fix the rate or amount of salvage, as Captain Ricker makes no claim. It seems highly equitable that the salvors, in the case of recapture by a private uncommissioned vessel, should receive as much for salvage as if the recapture were made by a private commis- sioned vessel. And I can see no reason why the rule which prevails in the case of recapture should not be applied to cases of rescue. In fixing the compensation in this case, I feel that it is my duty to give such a sum as would ordinarily be sufficient to engage reasonable mariners to encounter the peril and danger of the undertaking. 3 Dall. 190. It is for the interest of merchants that I should do so. It is laid down by writers on this subject, that the character and condition of the person is a fit circumstance to form a ma- terial consideration in distributing the reward. 1 Rob. 151, 239. It is very certain that what would be a suitable and ample reward to one man, for a hazardous enterprise, would be no adequate compensation to another. Appreciating as well as I can all the circumstances proper for my consideration, I allow the libellant $Q6Q. (a) This I consider as a full and adequate compensation for a hazardous enterprise, conducted with skill and courage, and described by the libellant, in his attestation, with laudable modesty. (6) I sincerely regret that the owners or underwriters (to which- soever it belonged) have not felt themselves bound in honor to do, without compulsion, what I must consider as nothing but an act of strict justice. They might, in this way, have procured for (a) This was about one-third of one-sixth of the value of the vessel and cargo. The property on the rescue immediately became revested in the former owners ; and the rescuers became immediately entitled to their reward, not to any specific part. The benefit conferred is the value of the prop- erty when carried to a place of safety. 2 Wooddes. 455; 2 Burr. 693. (6) The libellant was an African. On his examination he discovered great modesty and candor. MAY, 1801. 439 Kennedy v. Ricker. themselves the satisfaction resulting from the bestowment of a reward where it was most justly earned, and, I imagine, at a diminished expense. Viewing the libellant's claim as just and meritorious, — one concerning which sensible men and liberal merchants could not entertain any reasonable doubt, — and not having been informed that any propositions have been made to the libellant which might have prevented this suit, I allow him his costs, (a) 1 The money was paid according to this decree. (a) See 2 Rob. 279, The War Onskan, Dec. 19, 1799. In point. 1 I. In Bns v. Tingy, 1800, 4 Dall. 37, salvage was allowed for the recapture of an American vessel from French captors, and in Talbot v. Seeman, 1801, 1 Cranch, 1, for the recapture of a neutral vessel. In both cases the capture and recapture occurred in 1799. II. The convention between the United States and France was con- cluded Sept. 30, 1800. On Feb. 3, 1801, the United States Senate consented to ratify the convention, provided a certain amendment was made. On July 31, 1801, the French government consented to the amend- ment, but added a further proviso. "These ratifications, having been exchanged at Paris, were again submitted to the Senate of the United States, which, on the 19th of December, 1801, declared the convention fully ratified, and returned it to the President for promulgation." Pro- claimed Dec. 21, 1801. "Treaties and Conventions between the United States and Other Powers since July 4, 1776." Washington, 1871. III. That seamen are entitled to salvage for recapturing their vessel from the enemy was distinctly held in Clayton v. Ship Harmony, 1 Pet. Adm. Dec. 70. See also 3 Kent, Com. 247; Story, J., in Williams y. Suffolk Ins. Co., 1838, 3 Sumn. 270, 275. In 2 Pars. Ship. & Adm. ed. 1869, 317, n. 4, some doubt is expressed on this point; but the case there cited, Phillips v. AT Call, 1821, 4 Wash. C. C 141, was not a case of forcible recapture, but of ransom. SUPERIOR COURT OF JUDICATURE. HILLSBOROUGH, NOVEMBER TERM, 1807. David Burbank v. James Norms. B. and N. made a parol submission of all demands to arbitration. Among other demands in favor of N., the arbitrators allowed the face of an execution, omit- ting, by mistake, to deduct a partial payment indorsed thereon. A written award was made in favor of N. for a sum of money, which B. subsequently paid. Held, that B. could not maintain assumpsit, for money had and received, against N., to recover the amount indorsed on the execution. This was assumpsit, to recover $8.69, money had and re- ceived to the plaintiff's use (there was a second count for $40 had and received, inserted probably with a view to give the C. C. P. jurisdiction). Plea : the general issue. On the trial, at last Term, the facts appeared to be [as follows :] — Dec. 9, 1806, plaintiff and defendant submitted (by parol) all demands to arbitration. Award in favor of defendant for $13.82, payable in thirty days, and costs $7 ; a final settle- m3nt. The award was made in writing. The parties agreed to abide the award, and signed a writing to that effect ; and the sum awarded has been paid. In computing the demands of Norris against Burbank, amongst others an execution was produced and the face of it allowed ; but there was an indorsement on it of the costs, $8.69, which was omitted by mistake of the arbitrators. NOVEMBER TERM, 1807. 441 Burbank v. Norris. As there was no controversy about the facts, it was agreed that the facts, as here stated, should be turned into a case stated for the opinion of the Court. Webster, for plaintiff. Harris (?), for defendant. Smith, C. J., delivered the opinion of the Court. I. It is very clear that, if the parties had settled without the intervention of arbitrators, this action would have been maintainable. So, if the submission had been informal, and the award only advisory, or not binding ; if the arbitrators had been merely assistants at the settlement. II. This was a regular and binding award. It is a general rule that such an action as the present does not lie to relieve against mistal:?s in judgments ; because it would defeat the great end of judgment, which is, that it puts a final end to controversy. The merits cannot be re-examined. If re-ex- aminable at the instance of one party, they must be so at the desire of the other; the whole account must be gone over again. And this equally applies to awards. There is a method of setting them aside. If that is not pursued, and they are submitted to, they stand on the same footino- as judgments as to this matter, their conclusive effect. In New- land, admr, v. Douglass, 2 Johns. 62, it was determined that, where arbitrators chosen by the parties make a mistake in the calculation of the sum to be awarded, an action at law will not lie to correct the mistake ; and that the evidence of the arbitrators to prove the mistake is not admissible. In that case it was said that a court of chancery may correct pal- pable mistakes or miscalculations made by the arbitrators, and 3 Atk. (644) was cited. But the bill was there brought to set aside an award. Here, the award has been submitted to. I am not prepared to say that, where an attempt is made to have the benefit of an award (and in this State, where the submission is not a rule of court or justice, it must be by suit at law), it would not be a good plea that there was a mistake 442 HILLSBOROUGH. Burbank v. Norris. of this kind ; ! certainly it is a good objection to the accep- tance of a report or award of referees made pursuant to a rule. Williams et als, ex'rs, v. Paschall, 4 Dall. 284, was debt on arbitration bond. Plea : that the arbitrators, from mis- take and misapprehension of the law, calculated interest on the face of a bond, -and not on the payments ; nor were the payments deducted in the computation, at the time when made. Demurrer. It was determined that the plea was bad. One ground why relief should not be given in case of mis- take made on one side is that there may have been equal or greater mistakes on the other side, which cannot be rectified except by going over the whole ground. In the present case it may be said that this matter (the indorsement of $8.69, on the execution) has never been con- sidered and adjudicated on by the arbitrators, and, therefore, the parties are not bound by the award in this particular, and 1 " Having no court of chancery, it is impossible that we should ever have adopted the doctrine that an award cannot be impeached in pleading, and avoided by matter de hors. I think we may safely lay it down as law, in this State, that an award may be impeached as well for corruption, par- tiality, misbehavior, &c, of the arbitrators, as for legal objections appear- ing on the face of the award. Whatever would be sufficient in England to set aside an award, either in a court of law, by motion in a summary way, or, in a court of equity, by bill, or, in this State, by way of objection to a report of referees, or to destroy an award when offered in evidence in an action on the original cause of action, may be pleaded in avoidance of the award, when the action is on the award itself, or on the bond of submission." Smith, C. J., in Knowllon v.Judkins, Rockingham, Febru- ary Term, 1805, 9 Manuscript Reports, 163, 171. The reason for this doctrine was taken away by the statute of 1832, con- ferring equity powers upon the Superior Court ; and it is now held that corruption, misconduct, or mistake of law, on the part of the arbitrators, cannot be pleaded at law, by way of defence to the award, or to the sub- mission-bond. Fletcher v. Hubbard, 1801, 43 N. H. 58; Elkins v. Page, 1864, 45 N. H. 310. In Hale v. Handy, 1853, 26 N. H. 206, 215, Gilchrist, C. J., said, " that where the arbitrator's mistake is one of mere arithmetical computa- tion, there seems to be no reason why the matter may not be inquired into in a suit at law." NOVEMBER TERM, 1807. 443 Burbank v. Norris. that Burbank, as to this, is not concluded. 1 G. Bacon, 207, 216, 232; 2 Tidd, 751, 752 (sed vide Willes, 268, 7 Mod. 8vo ed., 349, S. C.) ; 2 Sellon, 351 ; 7 G. Bacon, 396 ; Chr. Notes, III. 459. In Ravee v. Farmer, 4 T. R. 146, it was determined that an award made upon a reference of all matters in difference between the parties does not preclude the plaintiff from suing on a cause of action subsisting against the defendant at the time of the reference, upon proof that the subject-matter of such action was not laid before the arbitrators, nor included in the matters referred. The evidence, in such case, goes to show that the matter sued was not included in the reference because not in difference. The only question, as Lord Mansfield said in another case, was whether submission of matters in difference is a submission of matters not in difference. All matters in difference are not the same as all causes of action subsisting, or all demands. In the present case, all demands were submitted ; and no authority can be produced that, in such case, evidence is admissible to show that a particular demand was not considered. 1 The strongest case in favor of such proof is Seddon v. Tutop, 6 T. R. 607. The plaintiff sued defendant on a promissory note, and for goods sold and delivered. Defendant was defaulted. Writ of inquiry, and verdict for the amount of the note only. A suit, after- 1 Contra, Whittemore v. Whittemore, 1819, 2 N. H. 26; Upham, J., in Elliott v. Quimby, 1812, 13 N. H. 181, 183; and see Wyman v. Perkins, 1859, 39 N. H. 218, 222. But if it be conceded that the award would not preclude Burbank from maintaining an action on one of his demands which the arbitrators omit- ted to consider, still this concession does not establish his right to recover the sum of $8.69. As to that sum, Burbank had no " demand " against Norris. The payment was merely matter of defence to the claim of Nor- ris on the execution. There is no pretence that Burbank could have maintained an action against Norris for that sum previous to the award. The question before the arbitrators was, How much is due Norris on the execution ? Their decision on this question is not rendered a nullity by the fact that they overlooked an important piece of evidence, which, if taken into consideration, would have materially reduced the amount to be awarded. 444 HILLSBOROUGH. Burbimk v. Norris. wards, was brought for the price of the goods, and held main- tainable. In that case the causes of action were widely different, and stated in different counts. The parties in this case entered judgment by agreement for defendant. 1 1 Where a partial payment is made upon a debt, but the creditor after- wards recovers judgment for the whole original claim without deduction, can the debtor maintain an action to recover back the amount of the par- tial payment? If the defence of partial payment was actually (though unsuccessfully) set up in answer to the creditor's suit, the judgment will, of course, estop the debtor from again litigating the question. Rogers v. Porter, 1799, 1 Dane, Abr. 187. If the debtor, though not setting up the defence of partial payment, appears, and pleads to the merits on other grounds, the weight of authority is that the judgment precludes him from bringing a subsequent action to recover back the payment. Loring v. Mansfield, 1821, 17 Mass. 394. See also Driscoll v. Damp, 1863, 17 Wis. 419; De Sylva v. Henry, 1836, 3 Port. (Ala.) 123. (In Woodward v. Hill, 1857, 6 Wis. 143, it seems to have been held, that, if the debtor sets up no defence other than a de- murrer, which is overruled, he is not precluded.) If the creditor's judgment was recovered by default, the American au- thorities are not agreed as to the effect of such judgment upon the debtor's action to recover back payments not credited. That the judgment is a bar to such an action was held in Tillon v. Gor- don, 1817, 1 N. H. 33 (overruled in Snow v. Prescott, cited post); Binck v. Wood, 1864, 43 Barb. 315; Jordan v. Phelps, 1849, 3 Cush. 545 (where the debtor filed a defence of partial payment, but subsequently withdrew his appearance and suffered default) ; Corey v. Gale, 1841, 13 Vt. 639. In the following cases the judgment was held a bar, but it does not distinctly appear whether the judgment was obtained by default. Fuller v. Shattuck, 1859, 13 Gray, 70; Mitchell v. Sandford, 1847, 11 Ala. 695; Broughton v. Mcintosh, 1840, 1 Ala. 103. See also Kirklan v. Brown's AdmWs, 1843, 4 Humph. 174; Bobe's Heirs v. Stickney, 1860, 36 Ala. 482; Sharswood, J., in Hopkins v. West, 1876, 83 Pa. St. 109. In England, a judgment by default would undoubtedly be considered a bar. In Huffer v. Allen, 1866, L. R. 2 Exeh. 15, it appeared that the debtor made a partial pay- ment while suit was pending, but the creditor afterwards took judgment by default for the full amount, and the debtor was arrested on the execution and paid the sum demanded. The debtor then brought an action against the creditor, for maliciously and without probable cause signing judgment and issuing execution. Held, that the judgment, whilst it stood for the full amount, precluded this action. The plaintiff's counsel admitted that NOVEMBER TERM, 1807. 445 Burbank v. Norris. he could not maintain assumpsit for money had and received ; and the law is so stated by Channell, B., in his opinion. That a judgment by default is not a bar was held in Snoio v. Prescott, 1842, 12 N. H. 535 (cited with' approval in 28 N. H. 574, and 39 N. H. 162) ; Roiue v. Smith, 1820, 16 Mass. 306 (now " considered as overruled; " Hoar, J., in Fuller v. Shattuck, ubi sup.); Smith v. Weeks, 26 Barb. 463 (overruled in Binck v. Wood, ubi sup.); Woodward v. Bill, 1857, 6 Wis. 143; Clay v. Clay, 1854, 13 Tex. 195 (where the partial payment, instead of being made the ground of a separate action, was allowed to be shown in defence to a suit on the judgment). See also Dillon, J., in Doyle v. Reilly, 1864, 18 Iowa, 108. In the above classification, Snow v. Prescott has been placed with the cases relative to judgments by default, because the judgment, the effect of which was there considered, was obtained in that manner. But one of the grounds of that decision, viz., the theory of " rescission," is by no means confined to judgments by default, but applies also to judgments rendered in suits where the debtor appeared and contested the case upon the merits (upon any other defence than that of payment). The " rescission " theory, if carried out to its logical results, does not stop with overthrow- ing the decision in Tilton v. Gordon. It is equally at variance with the leading case of Marriot v. Hampton, 37 Geo. III. 7 T. R. 269; s. c. 2 Smith's L. Cas. 393. Possibly, the very sweeping effect of this theory may induce a careful re-examination of the reasoning by which it is sup- ported. A judgment in favor of the creditor, for the full amount of his claim, does not preclude the debtor from maintaining an action to recover the value of property which he had previously delivered to the creditor, with the expectation that it would be applied in reduction of the debt upon a future adjustment of accounts, but which was not delivered as a present payment. Strong v. McConnel, 1838, 10 Vt 231 ; and see Cushman v. Es- tate of Hall, 1856, 28 Vt. 656. Upon the literal phraseology of the state- ment of facts in Snow v. Prescott, an attempt might possibly have been made to bring that case within this principle. But the plaintiff's counsel, and the judge who delivered the opinion, both conceded that the case was not distinguishable in principle from Tilton v. Gordon, where there was no attempt to represent the delivery of the property in any other light than as a partial payment. If a negotiable note is transferred under such circumstances, that the defence of partial payment to the payee cannot be set up against the in- dorsee, a judgment against the maker for the face of the note does not preclude him from recovering the amount of such payment from the payee. Conn. & Pass. R. R. Co. v. Newell, 1858, 31 Vt. 365, 372. Otherwise, if this defence was open to the maker as against the indorsee. Shaw, C. J., in Socket v. Loomis, 1855, 4 Gray, 148, 150; Corey v. Gale, 1841, 13 Vt. 639. 446 HILLSBOROUGH. Hurbank v. Norris. The reasons urged in support of Roive v. Smith, ubi sup. (see 3 Cush. 547), did not exist in Burbank v. Norris. In the latter case, there was no breach of the creditor's undertaking to indorse the payment; the indorse- ment was actually made. Nor did the debtor suffer a default. The error in the adjudication was due to an oversight on the part of the tribunal, not to the fraud or mistake of the prevailing party. In Snow v. Prescolt, the plaintiff's counsel admitted that, if the indorsement had been made, the judgment would have been a bar. In Xorhind v. Douglass, 1800, 2 Johns. 02 (cited in the above opinion), the arbitrators, instead of allowing the prevailing party too much, allowed him too little, in consequence of a mistake in the subtraction of figures in making up the award. Held, that he could not maintain an action to recover the amount of the mistake. EXTRACTS JUDGE SMITH'S MANUSCRIPT TREATISE ON PROBATE LAW. 1 [Of the Statute Provision that a Person lawfully seised and possessed of lands " shall have power to give, devise, and dispose of them, a8 well bv his last wlll as by any OTHER Act DULY EXECUTED."] The testamentary power conferred by the act is only co- extensive with the power of alienating. It was not the inten- 1 This work was styled by the author, " An Essay on the Law of Descent and of Last Wills and Testaments." It is in two manuscript volumes, and would probably make, in print, from five to six hundred pages. Judge Smith was appointed judge of probate for Rockingham County in 1800, and served for a short time. The treatise was probably composed, or at least commenced, while he held that office. The New Hampshire statutes, which are frequently referred to in the text, are always cited from the edition of 1797, not from that of 1805 ; thus fixing the date of composition as between the issuing of those two editions. Notes and cita- tions of authorities were occasionally added afterwards; one note bearing date as late as 1841. It is not known that the author ever contemplated the publication of this work; but the manuscript was made use of by other lawyers (e. g. , Chief Justice Richardson, and Mr. Webster, and probably Mr. Mason). It will be seen that the extracts here made, aside from those relating to local statutes and usages, consist largely of criticisms on some doctrines laid down as law in the reports and text-books of that period. But it would be a mistake to infer that the treatise is mainly composed of criti- cisms. Great care was evidently taken, and much space occupied, by the 448 EXTRACTS From Manuscript Treatise on Probate Law. tion of the legislature to create a capacity where there was none before, but only to enlarge the methods of alienation. [Municipal Corporations may take by Devise.] By the Statute of Wills, bodies corporate are expressly ren- dered incapable of taking a devise. 2 Wooddes. 354 ; 1 Swift, 326. By sundry statutes, corporations are disabled from purchasing, unless they have a license for that purpose. These restraining statutes, being inapplicable to our situation and circumstances, it is conceived, were never received and admitted here. And, as our Statute of Wills is silent on the subject, there does not seem to be any good reason to conclude that our town corporations may not acquire lands by devise, as well as by purchase in its more limited sense. 1 It is usual, when other corporations are created, to insert a clause, enabling them to hold lands to a certain value or amount. [Formalities of Wills of Lands, and Land and Goods. Sealing.] The will must be sealed by the testator. This formality is peculiar to our statute, and was first in- troduced by the act of Feb. 3, 1789. It is an unmeaning, useless ceremony, and affords no security against fraud or forgery. [Attestation.] As to the subscription of the witnesses ; this is essential. But they need not subscribe all at the same time, nor even in the same year. 2 By this doctrine, that the witnesses may attest at different author, in stating what the law then was, before indulging in speculations as to what the law should be ; but, as most of his statements of the then existing law are substantially similar to those in the text-books now in common use, it has not been thought desirable to draw largely from them in this publication. 1 See Sargent v. Cornish, 1873, 54 N. H. 18; The Dublin Case, 1859, 38 N. H. 459; 2 Williams on Executors, 6th Am. ed. 1114, n. b. 2 S. P. Gaylor's Appeal, 1875, 43 Conn. 82; Dewey v. Dewey, 1840, 1 Met. 349; 1 Williams, Ex. 6th Am. ed. 121, n. s. EXTRACTS 449 From Manuscript Treatise on Probate Law. times (4 Burn, 79), an inlet is made for great frauds and impositions, (a) After one witness has attested, there may have been an erasure or interlineation. The intent, doubtless, was that all the witnesses should be together ; they would be a check on each other. It may even be asserted that a parol disposition before three witnesses is an act full as solemn as a will in writing attested by three at different times. 1 Vesey, Jr. 14. 1 [Whether Jury Trial as Matter of Right upon Appeal from Probate of Will.] It has been made a question, whether the trial in the Su- preme Court of Probate should in any case be by jury. Since the Revolution, on appeals from decrees approving and allow- ing wills, at the Supreme Court, the appellant has pleaded that the instrument, allowed by the judge of probate, was not the last will and testament of the said A. B., and tendered an issue to the country, which has been joined (Prov. Laws, 255). (£) A clause in the act of 25 Geo. II., c. 6, and copied into our act, relative to the attestation of wills, has been supposed to favor this practice. This clause provides that the credit of witnesses, under certain circumstances, shall be subject to the consideration of the Court " and jury," before whom they (a) It seems by the law of Rome to have been necessary to a valid testament that the witnesses should be all present at the same time. 1 Browne, C. L. 248. (6) In Massachusetts, the practice is for the appellant to file the reasons of his appeal. If one of these be that the testator was insane, the Court direct an issue. The appellees (if against the will) plead that the testator was not of sound mind, &c. ; (if for the will) that he was of sound mind, &c. The other party, in the first case, reply, affirming the sanity; and the answer is a denial as before, and tender of issue. In the second case, the replication denies the sanity and tenders an issue. The party affirming the sanity open and close. 1 Mass. 72, 336. 1 By the statutes now in force in Vermont and Connecticut, the wit- nesses are expressly required to subscribe in presence of each other. Gen. Stat, of Vermont, 377, § 6 ; Conn. Stat, of 1875. As to the construction of Stat. 1 Vict. ch. 26, see 1 Williams, Execu- tors, 6th Am. ed. 121, n. t. 29 450 EXTRACTS From Manuscript Treatise on Probate Law. shall be examined. In Great Britain the clause had meaning ; wills of land being proved before a jury. Till the Revolution, and while the act of Parliament, proprio vigore 8uo, was binding here (Prov. Laws, 257), the words "and jury " were considered as equally inoperative with the clause which relates to " the court of equity in which the testimony or attestation of witnesses may be used." No jury was ever admitted into the Supreme Court of Pro- bate before the Revolution. The twentieth article of the Bill of Rights has been sup- posed to affect the question. But it may be remarked that this provision would not only comprehend personal testa- ments, but would make a jury necessary before the judge of probate, as well as the Supreme Court of Probate. But if the words, " except in cases in which it has been, heretofore, otherwise used and practised," be considered as referring only to the usage and practice before the Revolution, then this article does not affect the question. 1 [as to using the word " devise " in reference to realty, and " Give," or " Bequeath," in Reference to Personalty.] There is little use here in the distinction, which is not always regarded in England. 1 Burr. 273 ; 1 East, 37, n. 2 [Of the Maxim "that the Law favors Wills."] It is said by various writers " that the law favors wills." 4 Burn, 119 ; 2 Blackst. 381 ; 4 Burn, 437 ; 1 Dom. 550 ; 7 G. Bacon, 313. If this is to be understood in the sense men- tioned by Doctor Burn, " that it is only where wills favor the law ; or in the sense in which it seems to be used by Sir William Blackstone as only dispensing with the necessity 1 A jury trial cannot be claimed as matter of right upon a probate ap- peal. Patrick v. Cowles, 1864, 45 N. H. 553; Smith, J., in Barnes v. Abbott, 1875, 55 N. H. 147, 148. See, also, Appleton, C.J.,in Brad- street v. Bradstreet, 1874, 64 Me. 204, 209; Withee v. Rowe, 1858, 45 Me. 571, 580, 581, 585. 2 Compare Gilchrist, C. J., in Ladd v. Harvey, 1850, 21 N. H. 514, 528. EXTRACTS 451 From Manuscript Treatise on Probate Law. of technical language, and interpreting them according to the intention of the maker, it seems liable to no just exception. But, if the maxim is to be understood in the sense in which it seems to be used by Lord Mansfield, 1 Burr. 420, that the law respecting wills, and wills themselves are to be favorably- expounded so as to encourage and enlarge the testamentary power, because wills introduce a more just and equitable dis- tribution and settlement of estates than that which takes place by the law of descent, it may be correct as it respects Great Britain ; but it is conceived that it is far otherwise here. There the eldest son only is heir ab intestato. And, among collaterals, not all the next of kin, but one often, is heir, to the exclusion of many in the same, and some in a nearer, degree. Simple-contract creditors have no means of enforcing pa} T ment of their just debts, unless their debtor is pleased to make pro- vision, where the personal estate proves insufficient for that purpose. In real estates the succession is governed by the political consequences of a positive system. In such a State the testamentary power is necessary, to enable a man to do justice to his family and his creditors. In this State the very reverse of all this is the case. All the children, and all the next of kin in the same degree, among collaterals, inherit in equal shares. Creditors of every description have, by law, as good security for their debts as the debtor can give them by will. The rules of descent are not governed by political con- siderations, but are founded on natural equity. And it may well be questioned, whether the will which the law makes is not generally more equitable, just, and simple, and, of course, more easily executed, than that which men make for them- selves. So far, therefore, from adopting the maxim that tes- tamentary dispositions are to be favored, it would seem that the law, if it leans at all, should rather incline the other way. 1 1 la another part of the Treatise, the author said : " It is for the ad- vantage of society that the restrictions on the testamentary power should be few, because the effect of such restrictions is to diminish the value of property. Wherever the powers of the proprietor are limited, the incite- ments to industry are weakened." 452 EXTRACTS From Manuscript Treatise on Probate Law. [As to Passing a Fee by a Devise without Words of Inher- itance.] A devise of lands to a person, without words of limitation, or any intention in the will of conferring a greater estate, only passes an estate for the life of the devisee. 4 Burn, 131 ; 4 G. Bacon, 256. The rule in deeds of conveyance is that, where lands are conveyed without limiting any estate, they only pass for the life of the grantee ; this rule has heen adopted in the construction of wills. 1 Wash. 103, 109. Common sense would have dictated that an absolute estate should pass by a conveyance without any limitation. But the rule was adopted at a time when it was the fashion to restrain the power of alien- ation, and consequently words of alienation were narrowed as much as possible in their signification. 1 [Satisfaction. Criticism on the Presumption that Bequest to Creditor is meant as Satisfaction of Debt.] [After stating various cases where the legacy will not be re- garded as satisfaction of the debt.] But if the debt due from the testator to the legatee was due in the testator's lifetime, and contracted before the date of the will, and there is noth- ing in the will which indicates the contrary, the legacy, if equal to, or greater than, the debt, shall be deemed a satisfaction. . . . The maxims, that a man must be just before he is gen- erous, and debitor non presumitur donare, 1 Kaimes, Eq. 212, have been often quoted against the claim of the legatee, both to the debt and legacy. But why may not a man, if he has wherewithal, be both just and bountiful? 3 Wooddes. 538. And why should the Court, when the testator professes that he is giving a leg- acy, that is, a gift, contradict him, and say that he is paying a debt? It must be granted that he who only possesses the ability to 1 The rule as to wills has been changed by statute, so that every devise of real estate is held to pass all the estate of the devisor therein, " unless it shall appear that it was his intention to pass a less estate." Laws of 18-22, c. 28, § 1; Gen. Laws, c. 193, § 4. As to deeds, see Cole v. Lake Co., 1874, 54 N. H. 242. EXTRACTS 453 From Manuscript Treatise on Probate Law. pay his debts shall not be presumed to give what he cannot give. 1 [Conditions in Restraint of Marriage.] By the civil law, such conditions were void, because illegal ; for it was a part of the political regulations of the empire, at the time the maxim was introduced, to favor marriage by bounties and encouragements, («) and to lay impositions on celibacy. 1 Bro. C. L. 35. To restrain marriage was unlaw- ful ; for it was unlawful not to be married ; and celibacy was illegal. The maxim seems to have been introduced into the English ecclesiastical law from a blind, superstitious adherence to the text of the civil law, and not from its fitness to the English system of laws, to which, indeed, it seems wholly inapplicable. 7 G. Bacon, 494. (6) Our laws neither favor nor discourage marriages. Every individual is at free liberty to exercise his own discretion on the subject. And there seems to be no reason why testators, in the disposition of their estates, shall not be at liberty to im- pose conditions on their children, or the other objects of their bounty, as to the time and circumstances of their marriage. 2 Bro. 437, 452, 488. Children under twenty-one ought not to contract marriages without the consent of their parents or guardians. Com. Rep. 749, 750, 751. The parent who gives an estate seems at least entitled to the appointment of a guar- dian, with a negative in this important transaction. () See Preface to Sullivan's Maine V. and MS. Notes Old Records, passim. (c) When the city of Amsterdam meditated a settlement at New Nether- lands (New York), it was among the conditions offered to the settlers, EXTRACTS 457 From Manuscript Treatise on Probate Law. Our ancestors, rejecting the English rules of descent, as wholly inapplicable to their situation and views (1 Bro. C. L. 33), were compelled either to frame a new system, or to search for one already formed somewhere else, (a) Fortunately, the rage for system-making was not so great at that day as at the present. Fully occupied with the active concerns of life, they had not leisure, any more than inclination, to strike out a new path in the difficult field of legislation. At this time, personal property in Great Britain, from the commercial pursuits and industry of the nation, had arisen to a degree of importance unknown to earlier times. 1 Bro. C. L. 15. At the Conquest, and for centuries after, the whole per- sonal property of the kingdom was so inconsiderable as hardly to merit the notice of the legislature. Over this species of property the owners were permitted to exercise the most per- fect dominion. There were no restraints on alienations. It was early chargeable with debts ; disposable by testament ; and, where no will was made, generally distributed among the widow and children, or next of kin. As it respected succes- sions, testamentary and legal, to personal property, all power was in the hands of the ecclesiastics ; and they, for reasons which have been mentioned in another place, adopted the rules of the civil law as regulated by the constitutions of the Empe- drawn up with the approbation of their High Mightinesses, the States- General, that the new settled country should (respecting the police or dis- tribution of justice, and especially the matter of descents) be regulated in the same manner as in the parent State. 2 Haz. Coll. 544, 1656. (a) They did not adopt or follow the common law of England at the first settlement of Massachusetts, either as it respects civil or criminal jurisprudence. In the latter, they professed to be governed by the judicial law of Moses, as far as it was of a moral nature. As it respects civil rights and civil injuries, the courts were governed by the equity of each case as it came before them. Nothing like a code of laws was in existence till 1634. Measures were then taken to compile a body of laws. In 1648 it was completed. The laws made between those periods were then collected together, ratified by the General Court, and first printed. 1 Hutch. 384. From 1640 to 1660, the New England colonies approached very near to independent common- wealths. 2 Hutch. 10. The foundation of much of the common law of those colonies was laid during this period. 458 EXTRACTS From Manuscript Treatise on Probate Law. ror Justinian. 1 Bro. C. L. 13. This system, matured by the learning and experience of the Roman lawyers and judges, familiarized to our ancestors in practice (Harg. Tracts, 544), popular with the nation (excepting the great land-holders and the body of common lawyers), just and equal in its principles, presented to our ancestors a body of laws ready made to their hands, every way applicable to their situation, and embracing property of every kind, without a difference, (a) To remedy some supposed defects in these rules, but princi- pally to insure a more perfect execution of them (4 Burn, 379 ; 2 P. Wms. 447), the British legislature, in 1670, passed the Statute of Distributions. The great outline of the statute is evidently taken from the 118th novel of Justinian. Harg. Tracts, 544. What the law was in this State, from the first settlement in 1623 till the union with Massachusetts, which happened in 1641, it is not easy to say, there being no records of that period. 1 Belknap, 55. (6) During the union we were gov- erned by the law which prevailed in Massachusetts. The separation took place in }f|f . Before this period, the Statute of Distributions was passed. It was probably received here as binding, and in practice extended to real as well as personal estate, (e) It was not till 1714 that the legislature passed any act on the subject of wills or administrations. Prov. Law, 45, 53, 104. The act for the settlement and distribution of the estates of intestates makes mention of the English Statute (a) Where there is no express rule in the case, the rule of the civil law is to be followed. And where the civil law agrees with ours, the civil law may be resorted to for confirmation and explanation. 26 Mo. Rev. n. 8. 172. (6) Mason and others, in their Petition to the King (no date, supposed to be about 1660), say they governed New Hampshire and Maine according to the laws of England. It appears by a report on the same petition that Massachusetts governed themselves as a free State, and did not conceive themselves bound by the laws of England. 2 Haz. Coll. 575, 578. (c) In the first settlement of Massachusetts, that part of the civil law which considers real estate as bona was adopted. This was also the Jewish law. 1 Hutch. 394, n. ; Sir W. Jones, 67 Mo. Rev. 148, n. 11 ; 1 Hutch. 393. EXTRACTS 459 From Manuscript Treatise on Probate Law. of Distributions in such a manner as implies that it was in force here. P. L. 104. [Descent. Computation of Degrees of Kindred.] The laws of Massachusetts and Connecticut expressly de- clare that the degrees shall be computed by the rules of the civil law. Mass. Laws, 8vo, I. 85. Our statute is silent as to the mode of computing the degrees of kindred. It is certain that we have adopted no part of the canon law, except what relates to the probate system ; and no part of the common law on the subject of descent. Our rules of descent are nearly a transcript from the Statute of Distribu- tions, which is borrowed from the civil law. It is, therefore, reasonable to conclude that the words " next of kin " and " degree " have the same meaning as that which they bear in the code whence they are taken. It is observable that the Statute of Distributions is silent as to the mode of computing degrees ; and yet the civil-law com- putation was adopted. 4 Burn, 256, 357, 361, 364 ; 2 Blackst. 504, 516. Where the right of representation prevails in infinitum, as in the English law, the canon and civil law computation will always designate the same person as next of kin. 2 Blackst. 225.' But, in our law, representation among collaterals does not extend beyond nephews and nieces of the intestate, and, there- fore, it is of importance that the mode of computing the degrees of kindred should be established and known. With- out this it is impossible to apply the rules of descent to the particular cases as they arise, (a) (a) Mr. Swift, in his Commentaries, or View of the Laws of Connect- icut, is mistaken in saying that "it is immaterial which mode of com- putation is adopted ; the result will be the same." 1 Swift, 280. He was probably led into the error from the passage in the Commentaries which has been quoted, without considering that it is there predicated on the idea of universal representation. Professor Christian, in his notes to Blackstone's Commentaries, vol. 2, 553, 555, 559, expresses an opinion that the canon-law computation 460 EXTRACTS From Manuscript Treatise on Probate Law. [Dower. As to the Injustice of the Doctrine that the Widow is to be Endowed of all the Lands of which the Husband was seised during the Coverture.] It is not my intention, in this place, to inquire who shall be endowed, and of what estate the widow may claim dower ; but I would just remark that the English rule (2 G. Bacon, 356), that "she shall be endowed of all the lands of which the husband, during the coverture, was seised," will generally be productive of much injustice. We have seen the reason, or ground, of her claim, — the property brought to the husband at the marriage, and her services during the coverture. To ascer- tain what proportion these usually bear to the property of the husband at the commencement of the connection, and his acqui- sitions afterwards, may, in any country and at any given period, be susceptible of calculation with some tolerable degree of accuracy. Perhaps, in this State, allowing her what our statute provides out of the estate of which the husband dies seised and possessed may, as a general rule, be just and equi- table. There may be cases where, on account of her dowry and faithful services, she is entitled to much more ; but these may be set off against those cases where she is really deserv- ing of much less. It is of the nature of all general rules to operate injuriously in some particular cases. The rule is good where it promotes general justice. It is sometimes mentioned as a reason for allowing the widow dower in all the lands of which her husband was seised during the coverture, that otherwise it would be in the power of the husband to defeat altogether the claim of dower ; and it is said that dower is one of the things the law favoreth. It must be admitted that a husband may squander away all his estate and leave nothing for his wife ; but this is an evil which cannot be guarded against. At all events, this possi- ble evil ought not to give birth to a principle which, under has not been adopted by the law of England. He is of opinion that the true and only. way of ascertaining an heir at law in any line or branch is by the representation of brothers or sisters in each generation, and that the introduction of the computation of kindred, either by the canon or civil law, into a treatise upon descents, may perplex and can never assist. EXTRACTS 461 From Manuscript Treatise on Probate Law. pretence of supplying a remedy, will produce infinitely greater mischief. If there is any method of making men good husbands, let it be adopted and pursued ; but this is punishing the innocent ; and it must be allowed that those who are the least deserving generally avail themselves of the right conferred by this rigid principle. The most that could reasonably be desired would be to endow the wife in the estate of the husband at the time of the marriage, at the time of his death, or at any one time during the coverture. But this is doing more. Cases may be put, and they are not unfrequent in this State, where the value of the dower, adopting the English law, would greatly exceed the value of the husband's estate at any of these periods. In England such cases can rarely happen. The frequent ex- changes of real estate for personal, the trafficking in lands, the rise of lands in value from cultivation in a new country, are circumstances not applicable to Great Britain. If they had been, it is presumed such a principle never would have been introduced into the law ; or, if it had crept in, it would, long ere now, have been repealed. It may be said that purchasers, knowing what the law is, may guard against these evils by exacting the consent of the wife to the conveyance. It is admitted that such consent would generally be obtained ; and this shows that the privi- lege is worth little. At the same time it is apparent that this precaution will often be omitted ; and the negligent will not always be the sufferers, but the creditors and heirs. The claim of the widow furnishes a demand against the estate, which, in a solvent one, falls upon the heirs, and, in one which is insolvent, must diminish the proportion of the several cred- itors. 1 [Eldest Son's Double Portion.] Before the act of 1789, the eldest son was entitled to a double portion. Prov. Laws, 104, 105. The reasons which 1 Perhaps similar views may have influenced legislatures to pass the statutes modifying or abolishing dower which have been enacted in some States. 462 EXTRACTS From Manuscript Treatise on Probate Law. led to this partiality were certainly not those given in the preamble to the act, — " that real estates were improved in value by the assistance of the children, the younger children being generally longest with their parents and most servicea- ble in acquiring the estate." It arose either from a prejudice in favor of the English system ; or, which is more probable, from a reverence for the law of Moses which confers on the eldest son a double portion. 1 Swift, 282. (a) [Exceptions to the Second General Rule of Descent.] The second general rule of descent is, that where there are no children, or representatives of children, of the intestate, the inheritance shall descend equally to the next of kin, in equal degree (1 Swift, 286) ; the children of the brothers and sisters of the intestate representing their parents, but no further representation being admitted among collaterals. 1 P. Wms. 25 ; T. Raym. 496. To this general rule there are exceptions. 1. When any of the children of an intestate die before twenty-one years of age, and unmarried, such deceased child's share shall descend among the surviving brothers and sisters, and such as legally represent them. 2. But if such child die after having arrived to the age of twenty-one years, unmarried and intestate in the lifetime of the mother, she shall inherit equally with every brother and sister and their legal representatives. (a) See Cotton's Abstract of the Laws of New England. Hutch. Coll. Papers, 161. •« Inheritances are to descend naturally to the next of the kin, according to the law of nature delivered by God. Numbers, xxvii. 7-11." " Eldest son to have a double portion, according to the law of God. Deut. xxi. 17; I. Chron. v. 1." Mirabeau on the order of Cincinnati, 189, and n. 4. It seems, on the first introduction of Christianity in the Roman Empire (or, rather, on the conversion of the Emperor to Christianity), the laws of Moses were received as the divine original of justice and right. 4 Gibb. 342. In Pennsylvania, the eldest son had a double share. 1683, first laws, Chalmers, 649. 5 B. & P. N. R. 506. EXTRACTS 463 From Manuscript Treatise on Probate Law. 3. If any person die intestate after marriage, or arrival to twenty-one years of age, without lawful issue, living the father, the whole estate, except what the intestate's widow is entitled to claim, shall go to the father. 4. But if the mother be living, and no father, at the time of such decease, she shall be entitled to an equal share with the brothers and sisters of the intestate, and their legal represen- tatives. In construing the several clauses of the statute, which I have thrown together to compose this second rule of descent, we must be careful to bear in mind that the first part contains the general rule, and that the after-clauses are to be taken as exceptions to it, and not as independent rules. 1 [Criticisms on the above Exceptions.] The circumstance of the child being, at the time of his death, or having been at any other time, married or unmarried, supposing him to die without issue, can neither in nature nor in reason have any influence in determining the relative claims of the mother, or brothers and sisters, to his estate. The framers of the act evidently supposed that, without these clauses, the estate of the child dying intestate would go to the brothers and sisters, and not to the mother ; the very reverse of which is .the case ; and therefore the expression should have been, as it is in the English and Massachusetts statutes, that every brother and sister should inherit equally with the mother. The three last exceptions to the second general rule of descent were first introduced into our law by the act of Feb. 3, 1789. The second was copied from the Massa- chusetts law. The two last do not add any thing to the justice or equity of our system ; make distinctions between cases where it is impossible to discern any difference ; occa- 1 See Kelsey v. Hardy, 1846, 20 N. H. 479; Whitten v. Davis, 1845, 18 N. H. 88; Bell v. Scammon, 1844, 15 N. H. 381; M'A/ee v. Gilmore, 1828, 4 N. H. 391 ; Gen. Laws, c. 203, §§ 1-3. 464 EXTRACTS From Manuscript Treatise on Probate Law. sion a great diversity of rules, and thus destroy that simplicity which is one of the greatest excellences of any code of laws. Blackst. Tracts, First Essay, 55. It would have been much better to have followed the Eng- lish Statute of Distributions ; to have constituted the father sole heir ; if he were dead, the mother, with the brothers and sisters and their representatives in infinitum ; if the mother were also dead, the brothers and sisters alone. 1 If any exception had been admitted, it should have been only that of the por- tion of a child in his father's estate, which should go first to the brothers and sisters, and their representatives, and then to the mother. [Preference of Brothers and Sisters over Grandparents.] The brothers and sisters, and their children, exclude the grandparents. There is no express provision of this kind in the statute. In this respect it is like the English Statute of Distributions. The usage and decisions under that act must have great weight in determining the sense of ours. Now the invariable usage in England has been to prefer the brothers and sisters, and their children, to the grandparents. It was so determined in 1708, 1748, and 1754. 3 Atk. 762 ; 4 Burn, 363, 367 ; 7 G. Bacon, 462. It is, moreover, accord- ing to the better opinion, the true doctrine of the civil law. 1 Dom. 665, 666 ; Chris, n. II. 615 ; 4 Burn, 362. The civil- ians reason thus : It is an evidence of the favor shown to brothers and sisters, that they are admitted with ascendants in a nearer degree, that is, with the parents ; when, therefore, their competitors for the succession are more remote, we may fairly presume that it must have been the intention of the law to place them on more advantageous ground than that which they occupy as next of kin ; and yet, if grandparents are admitted with them, their share will generally be reduced, in- 1 Such is now the statute, with the exception that, "if any person die under age and uumarried, his estate, derived by descent or devise from his father or mother, shall descend to his brothers and sisters, or their legal representatives, if any, to the exclusion of the other parent." Gen. Laws, c. 203, §§1,2. EXTRACTS 465 From Manuscript Treatise on Probate Law. asmuch as the number of grandparents are double to that of the parents. This reasoning is equally applicable to our statute as to the novel of Justinian. I do not lay much stress on the peculiar expressions in our act. Even if it were said that the brothers and sisters should inherit equally with the mother, it might fairly be inferred that, if there was no mother, they alone should inherit. Both equity and utility incline in favor of the brothers and sisters. What has already been observed in the case of children and their mother is still more applicable to the present case, (a) The estate of a brother or sister cannot go in a course of descent from the brothers and sisters. If the parents, or either of them, succeed in the first place, the brothers and sisters will eventually succeed as their heirs. Half brothers and sisters may indeed be introduced by second marriages of the parents. But if the grandparents should inherit with brothers and sisters, the uncles and aunts would, in a course of descent, take their shares in exclusion of the brothers and sisters of the intestate. [No Boundary to Inheritable Degrees of Kindred.] There seems to be no boundary fixed to the degrees of kindred within which a person must claim to succeed as the heir of an intestate. Where consanguinity in general, and not proximity, is the object of any law, it is usually limited within certain degrees (Blackst. Tracts, 1 Essay, 17, 23) ; such as the case of marriages, challenges of judges, jurors, and witnesses. It would be too uncertain without, since all mankind are related. But where proximity comes only to be considered, such boundary is not equally necessary, and consequently is often omitted. For, though all the world may be related to an intestate, for example, they are not all his next of kin, and such the person claiming to be heir must prove himself. It has seldom happened in Eng- (a) Professor Christian is of opinion that no good reason can be given for the doctrine that brothers and sisters exclude grandparents. II. 615; 2 Blackst. 520. 30 466 EXTRACTS From Manuscript Treatise on Probate Law. land that kinsmen beyond the tenth, or even the seventh, degree have succeeded to the estate of a person dying intes- tate. There must, in the nature of things, be a boundary to the evidence which proves pedigree or consanguinity. 1 Swift, 292, 293. J In this State it is apprehended there are many who could not, and some who would not choose to, trace out their ancestors to the seventh degree. Relations in those remote degrees would be found among foreign nations, and so excluded as aliens, unless their right of succession were saved by treaty. 1 Dom. 55. [Executor de son tort. Remedy by Creditors, &c] There can be no doubt in this State, however it may be in England, that administrators are bound to account, not only for what came to their hands since administration granted, but also what had come to their hands before ; and, therefore, creditors cannot be injured by the doctrine that administration purges the wrong. 2 ... It is conceived . . . that if an executor de son tort take administration, he may plead insolvency, or any other plea which any other administrator may plead; 3 and that he is liable to the same extent as other administrators, and no farther. If the defendant plead ne unque executor, and it is found by the jury that he has administered any goods of the deceased, however inconsiderable in value, he is then sub- jected, as a punishment for his false plea, to the payment of the plaintiff's whole debt. 2 Bosw. 61 ; 2 Went. Off. Ex. 179 ; 1 For cases where the evidence offered was held insufficient, see Morrill v. Otis, 1841, 12 N. H. 406; Emerson v. White, 1854, 29 N. II. 482. 2 See Richardson, C. J., in Clements v. Swain, 1822, 2 N. H. 475, 47G; Eastman, J., in Emery v. Berry, 1854, 28 N. H. 473, 484. 8 See Shillaberv. Wyman, 1818, 15 Mass. 322; Olmsted v. Clark, 1861, 30 Conn. 108 (but see Green v. Dewit, 1790, 1 Root, 183); Tweedy v. Bennett, 1863, 31 Conn. 276; Sanford, J., in Bennett v. Ives, 1862, 30 Conn. 329, 335. EXTRACTS 467 From Manuscript Treatise on Probate Law. 3 G. Bacon, 24. But it is said that equity will grant relief in cases of extreme hardship. Cora. Ch. 398. (a) This notion of punishing a man for false pleading is a good deal antiquated, and, in this particular case, extremely severe. 1 How can the defendant certainly know that the acts done will be deemed, in law, sufficient to constitute an executor de son tort ? (K) This is always a question of law, and sometimes a difficult one. It seems pretty clear that if the defendant plead plene administravit in England, and the jury find against him, they will at the same time find the value of the goods unadmin- istered ; in this case, the executor de son tort will only be charged as the rightful administrator is, to the value of the assets so found in his hands, (c) 3 G. Bacon, 25 ; 4 Burn, 198; 2 Wooddes. 469, n. a; Com. [Dig.] Adm'r, C. 3 ; 1 Went. Off. Ex. 180. It may admit of some doubt how far the act of Feb. 3, 1789, has softened the rigor of the common law. It can hardly be supposed that it was the intention of the makers of this act to increase that rigor ; and, therefore, it must be applicable only to the case of ne unque executor pleaded and found against the defendant. Nor can it be confined to those cases, as the words seem to import, where an ex- (a) To secure the effects of the deceased from embezzlement, every person who intermeddles irregularly, or, as it is termed in the Scotch law, is guilty of vitious intromission, is subjected to the whole debts of the deceased without limitation or restriction. 2 Kames, Eq. 327. As to relief in equity, see 1 Eq. Cas. Abr. 237. (b) It probably arose in this way. Executors have it in their power to prefer creditors in certain cases. He who first obtains judgment shall be preferred. To delay a creditor he did not like, the executor might plead a false plea. The doctrine alluded to was probably introduced to check such practices. As applied to such cases it was not too severe. Toller, 225, 226. (c) And yet this is a false plea. 1 In Pillsbury v. Hubbard, 1839, 10 N. H. 224, 235, Parker, C. J., said, " We have no practice here, charging an executor or administrator with costs on account of false pleading merely. ..." 468 EXTRACTS From Manuscript Treatise on Probate Law. ecutor de son tort afterwards takes out letters of admin- istration. It has not been usual to sue such persons, as executors of their own wrong, or to charge them with any thing more than the value of the estate which may have, at any time, come to their hands. The most natural construction is that it was intended to soften the rigor of the common law in those cases which have always been considered as hard ones ; where the smallest intermeddling with the estate of a person deceased, the milk- ing of cows, taking a dog, a bedstead, a bible, have subjected the person charged, and pleading ne unque executor, with the whole debt of the creditor suing. Kames, L. Tr. 52, n. ; 1 Swift, 433; 3 G. Bacon, 24 ; Chris. N. II. 611. And this construction is the more reasonable, as we are destitute of courts of equity to mitigate the extreme rigor of the law. Com. Ch. 3 g. 8. It is particularly necessary in this State, as an executor de son tort cannot, as he may in England, plead plene administravit. To give effect to this clause in the sense we understand it, the jury, on the plea of ne unque executor, must find the value of the goods administered, (a) 1 [Whether an Executor de son tort may plead plene administravit, EITHER GENERALLY OR SPECIALLY.] By our law, this plea of plene administravit is not allowed. Where the assets are sufficient, every just debt must be paid. And where thay are insufficient, the insolvent course of ad- ministration must be pursued, and this an executor de son tort cannot pursue. But he may, perhaps, plead, by way of analogy to the English practice, a special plene administravit, that is, the payment of funeral expenses and debts entitled to pri- ority ; because the rightful executor may so plead. (5) 2 (a) On the subject of executor de son tort, see 4 East, 441. (b) It is not perfectly clear that a rightful executor can plead even this 1 The construction of the statute of 1789, here suggested by the author, does not seem to have occurred to the courts. See Bellows v. Goodall, 1855, 32 N. H. 97, 99; Neal v. Baker, 1822, 2 N. H. 477. 2 Compare Richardson, C. J., in Neal v. Baker, 1822, 2 N. H. 477, EXTRACTS 469 From Manuscript Treatise on Probate Law. According to the English practice, under plene adminis- travit, the executor de son tort may give in evidence the delivery of the goods of the deceased over to the rightful executor or administrator, before action brought by the cred- itor or legatee, but not after. 2 H. Bl. 25 ; 3 T. R. 587 ; 2 T. R. 97 ; Chris. N. II. 611. In this State, he may plead this fact specially in bar. 1 [Special plene administravit. ~\ If the charges of administration as here explained [i. e., as including funeral expenses and the widow's allowance, as well as administrator's expenses] exhaust the estate, the executor or administrator may settle his account ; the administration is completed ; and he may plead this decree or settlement, as a special plene administravit, to any action brought against him in his representative capacity. 2 [See] Mass. Laws, 8vo, 86. special plene administravit in the same manner as in England. How can the jury judge of the quantum of assets, and that there are not other debts in the same degree ? After the assets are found in the probate court, and settled in the administration account, and exhausted, these facts may be set forth in the plea. 478. And see Sanford, J., in Bennett v. Ives, 1862, 30 Conn. 329, 335. Whether the defence that the executor de son tort has already paid judgments to the full limit of his statutory liability may be set up under a general plea of plene administravit, quaere. See 32 N. H. 100. 1 See Richardson, C. J., in 2 N. H. 477. 2 " If the estate of any person deceased, after deducting the allowance made to the widow, shall be expended in defraying the expenses of the last sickness and funeral of the deceased, and expenses of administration, the administrator, on settlement of his account and due notice to the heirs and others interested in the estate, shall be wholly discharged, by decree of the judge, from all claims of the creditors against the estate, without other proceedings." Gen. Laws, c. 199, § 25; originally enacted in 1841, excepting the clause relative to notice. If the author's view is correct, the enactment of this statute was uncalled for. The allowance of the administrator's final account (showing the estate exhausted by these items) would, if made on proper petition 470 EXTRACTS From Manuscript Treatise on Probate Law. [General Plea ok plenc administravit not good in New Hampsiiikk.] A general plene administravit, (a) it is conceived, would not be good in this State. The plea ought to state how he has administered, and show that there is nothing for demands of the kind sued. The court can then see and judge whether the administration is legal, and the adverse party has the benefit of knowing precisely what it is he is to defend against. (6) 2 Coll. Jurid. 460 ; 1 Salk. 296 ; 1 Swift, 428, 429 ; Kirby, 246. [In an Action against an Administratrix, long pending in the Superior Court, and finally compromised in 1808, one of the Defendant's Pleas was ''plene administravit in the English Gen- eral Form." It does not appear that there was an Actual Decision as to the Validity of this Plea; but in thk Manu- script Digest it is said, that the Court "intimated" that it was "bad." The following Note was appended by Judge Smith to his Manuscript Report of the Case.] The general plea of plene administravit, in this State, is bad. It is not a denial of assets to satisfy debts in general. It admits that there have been assets, but says, " I paid them away to other creditors before you sued ; " and this, by the English law, is, in many cases, a complete answer to the plain- tiff. But it is no answer by our law ; because, with the (a) It is believed that courts of law in England never admit plene administravit to be pleaded where creditors are entitled to be paid pari passu. Here even privileged creditors are so entitled. (b) It would be absurd to authorize a plea which the court could not try. Now our courts of common law cannot try either the debts and charges on the funds, or the amount of funds. If plene administravit be a good plea, it can only be proved by the proceedings in the probate court; therefore those proceedings should be pleaded. and due notice, operate, ipso facto, as a discharge of the administrator; and no special decree of discharge would be necessary. As to impeaching, on the ground of fraud, a discharge granted under the statute of 1841, see Tebbetts v. Tilton, 1853, 31 N. H. 273. See further, as to defences in the nature of a special plene administravit, Parcher v. Bussell, 1853, 11 Cush. 107 ; Longfellow v. Patrick, 1845, 25 Me. 18; Boyden v. Ward, 1866, 38 Vt. 628. EXTRACTS 471 From Manuscript Treatise on Probate Law. exception of a few privileged debts, all the creditors are to fare alike. An administrator is not permitted to say, " I had assets, but I have administered them to others." The plaintiff had a right to his share, and the plea admits there was some- thing to share among the creditors. If we admit this plea, we must admit the consequences, and the jury must settle administration accounts ; what estate the administrator real- ized, or might have realized ; waste committed, positive and implied ; the administration charges ; debts paid. In Eng- land these things can be tried nowhere else but at law. They cannot be tried in the spiritual court. But the law is not so here. The probate court try these questions, and they alone can try them. Administering in the insolvent course is the only way in which the assets in general can be apportioned ; and, when he does so administer, the creditors cannot proceed at law. If the administrator does not administer in the in- solvent course, he must pay all the creditors in full ; for a court of law cannot apportion. If he has administered in that course, he must plead it ; for this is the only way in which he can protect himself. And he must plead it in ex- press terms ; it will not be presumed. In this plea, defendant says she has administered the estate according to law. But there are two modes, one as legal as the other. Which has she pursued ? 1 [Whether Administration on Non-resident's Estate, granted in the wrong County, is void.] If the deceased was not, at the time of his death, an in- habitant of this State, administration shall be granted by the 1 A general plea of plene administravit is not good where the estate has not been represented insolvent. Olcott v. Graham, 1787, Kirby, 246; and see Phelps v. Swan, 1788, Kirby, 428, 430; Shaw, C. J., in Cushing v. Field, 1845, 9 Met. 180, 181; Richardson, C. J., in Neal v. Baker, 1822, 2 N. H. 477, 478. Such a plea was not objected to in Tebbetts v. Tilton, 1855, 31 N. H. 273, 274; but the real controversy there seems to have been tried upon the issues joined on the replications to another plea. Plene administravit is not a good plea to an action of debt on an admin- istration bond. Judge of Probate v. Lane, 1871, 50 N. H. 556. As to general and special plene administracit, see also a subsequent extract. 472 EXTRACTS From Manuscript Treatise on Probate Law. judge of the county where the greatest part of the estate, real and personal, shall happen to be. Laws, ed. 1797, 247. (a) i It is conceived that administration granted in a county where the deceased, had estate, though less than in another county, would, nevertheless, be valid ; for, till the administra- tion is completed, it cannot be ascertained how much of the deceased's estate was in each county. (6) It is also conceived that administration granted in a county where the deceased had no estate would not be void, but voidable only. One administration is sufficient for all the property within this State. [When is a Grant of Administration absolutely void?] It is often said in the books that administration is void, when the meaning is only that it is voidable. 1 Salk. 38. Neither letters testamentary nor letters of administration are absolutely void, except when the testator or intestate is alive, or the letters are granted by an incompetent author- ity. 3 T. R. 129. 0) (a) How is that fact to be ascertained before administration completed? It is conceived the fact being found otherwise would not affect the juris- diction of the judge, or the grant otherwise duly made. J. S. 1841. See post. (6) See Temporary Act, folio ed. 72. (c) Perhaps in this State a grant of administration by a judge in a county other than that in which the deceased dwelt, and especially if administration was before granted in the proper county; or, in the case of non-inhabitants, a grant in one county after a previous grant in another, where there was superior or equal right; the latter would be void.* But the first grant of administration in this State, it is conceived, will, like that of the metropolitan, be voidable only. Our judges have jurisdiction, 1 By the present statute, administration may be granted by the judge of any county in which the non-resident had estate. Gen. Laws, c. 189, § 6. * The remainder of this note is in a later handwriting. EXTRACTS 473 From Manuscript Treatise on Probate Law. [Repeal of ex parte Probate Decrees.] Where any thing is done in the Probate Court ex parte, or on the suggestion of a party, without the adverse party hav- like the metropolitan, through the State or Province. In this respect they do not compare with the English ordinary or bishop.* * I. A grant of administration upon the estate of a living person, under an erroneous belief of his death, was held absolutely void in Moore v. Smith, 1858, 11 Rich. (S. C) L. 569, and in Jochumsen v. Suffolk Savings Bank, 1861, 3 Allen, 87; and such was assumed to be the law in McNeil v. Burnarn, Hillsborough, December Term, 1815. See also Duncan and Hooper v. Stewart, 1854, 25 Ala. 408, where it seems to have been pos- sible to dispose of the case without deciding this point. The absolute nullity of such a grant has repeatedly been asserted in the dicta of judges; see especially Buller, J., in Allen v. Dundas, 1789, 3 T. R. 125, 130; Marshall, C J., in Griffith v. Frazier, 1814, 8 Cranch, 9, 23; Bell, C. J., in Morgan v. Dodge, 1862, 44 N. H. 255, 259. The contrary was held in Roderigas v. East River Savings Institution, 1875, 63 N. Y. 460 ; criticised in 10 Am. Law Rev. 787 ; and in 15 Am. Law Reg. n. s. 212. Since the decision in 3 Allen, 87, a statute has been passed in Massachusetts, whereby a confirmation can be had of payments made to, or acts done by, a person acting as execu- tor or administrator, whose appointment "shall be vacated or declared void by reason of any irregularity or want of jurisdiction or authority of the court making the same." Mass. Stat, of 1873, c. 253. II. Grants of administration, or of letters testamentary, on the estate of a deceased resident of the State (or the probate of such a person's will), in a county other than that in which he dwelt, are, according to some authorities, absolutely void. Cutts v. Haskins, 1813, 9 Mass. 543; Hotyoke v. Haskins, 1827, 5 Pick. 20 (and see 9 Pick. 259); Bolton v. Jacks, 1868, 6 Rob. (N. Y.) 166 ; Lessee of Griffith v. Wright, 1855, 18 Ga. 173 (and see Goodtitle v. Roe, 1856, 20 Ga. 135); Succession of Williamson, 1848, 3 La. Ann. 261; Miltenberger v. Knox, 1869, 21 La. Ann. 399; Collins v. Turner, 1817, Tayl. (N. C.) 541 (sometimes cited as 2 Tayl.); Pinkerton v. Walker, 1817, 3 Hayw. (Tenn.) 220, 222 (but see Johnson v. Gaines, 1860, 1 Coldw. (Tenn.) 288); Wilson v. Frazier, 1840, 2 Humph. (Tenn. ) 30, 31. See also Johnson v. Corpenning, 1845, 4 Ired. (N. C. ) Eq. 216 ; Wise, J., in McChord v. Fisher's Heirs, 1852, 13 B. Mon. 193; Bell, C. J., in Morgan v. Dodge, 1862, 44 N. H. 255, 259. See also Olmstead's Appeal, 1875, 43 Conn. 110; Foster, J., 118, 120-123 (but see Carpenter, J., 125, and Holcomh v. Phelps, 1844, 16 Conn. 127). Other authorities hold that such grants are not absolute nullities, and cannot be col- laterally impeached. Raborg's Adm'x v. Hammond's Adm'r, 1827, 2 Har. & G. (Md.) 42; Burnley's Representatives v. Duke, 1843, 2 Rob. (Va. ) 102 (see, however, Ex parte Barker, 1830, 2 Leigh (Va.), 719); Irwin v. Scriber, 1861, 18 Cal. 499 (but see Burnett, J., in Beckett v. Selover, 1857, 7 Cal. 215, 236, 237); Burdetl v. Silsbee, 1855, 15 Tex. 604 (but see Fisk v. Norvel, 1852, 9 Tex. 13, and Withers v. Patterson, 1864, 27 Tex. 491); Morrelly. Dennison, 1859, 8 Abb. (N. Y.) Pr. 401; s. c. nam. Monellv. Dennison, 17 How Pr. 422. See also Brown, J., in Bolton v. Brewster, 1860, 32 Barb. 389, 394, 395; Redfield, C. J., in Abbott v. Coburn, 1856, 28 Vt. 663, 667, and in Driggs v. Abbott, 1854, 27 Vt. 580, 581. " Where a probate court has, upon a petition asserting the essential jurisdictional facts, and after notice to the parties in interest, given in the man- ner prescribed by law, granted letters testamentary or of administration, the proceedings cannot be avoided collaterally, in the majority of the States, by proof that the deceased did not die within the jurisdiction of the court." Freeman on Void Judicial Sales, § 4. 474 EXTRACTS From Manuscript Treatise on Probate Law. ing had an opportunity of being heard, it seems unreasonable that a decree made under such circumstances should be irre- pealable. The right of appeal affords no adequate relief; for the decree may remain unknown till the time for appealing is elapsed. Indeed, the remedy by appeal is, in its nature, cal- culated only to redress an erroneous judgment of an inferior And see the able opinion of Hogeboom, J., in Bumsteadv. Read, 1859, 31 Barb. 661, where it was decided that, if a petition to the surrogate for probate and letters testamen- tary avers the residence of the testator within the county, and interested parties who are notified consent to the grant of the petition, such parties cannot afterwards impeach the probate on the ground that the testator in fact resided in another county. The rule in Massachusetts has been changed by statute, so that jurisdiction assumed by the judge of probate, so far as it depends on the place of residence of a person, if un- appealed from, shall not be afterwards contested, unless the want of jurisdiction appears on the same record. Gen. Stat, of Mass. c. 117, § 4. For the construction of a similar statute in Maine, see Record v. Howard, 1870, 58 Me. 225, where Walton, J., states reasons in favor of this legislation, 58 Me. 228, 229. III. A grant of administration on the estate of one who was not a resident of the State, and had no effects within it to be administered, was held void in Crosby v. Learitt, 1862, 4 Allen, 410; Embry v. Millar, 1818,1 A. K. Marsh. 300; Thumb v. Gresham, 1859, 2 Met. (Ky.) 306; and, semble, Christy v. Vest, 1873, 36 Iowa, 285, 287 (but see Roth- rock, J., in Murphy v. Creighton, 1876, 45 Iowa, 179, 182). Contra. Andrews v. Avery, 1858, 14 Gratt. 229. See also Fisher v. Bassett, 1837 9 Leigh (Va.), 119, where it was held that a grant of administration on the estate of a non- resident in a county where he had no estate, his only assets in Virginia consisting of claims against residents of another county, was not void. IV. The appointment of an administrator de bonis non, in a county other than that where the original administration was granted, has been held void. Pawling v. Speed's Ex'r, 1827,5 T. B. Mon. 580; People v. White, 1849, 11 111. 341; and see Unknown Heirs of Langworthy v. Baker, 1860,23 111. 484, 490; Johnson v. Corpenning, 1845, 4 Ired. (N. C.) Eq. 216. Contra. Clapp v. Beardsley, 1828, 1 Vt. 151. V. The Mass. statute establishing county courts of probate prohibited the grant of original administration after twenty years from the death of the intestate. In Wales v. Willard, 1806, 2 Mass. 120, a grant after that period was held void. But in Tennessee, where the statute provided that letters testamentary granted after the lapse of twenty years from the testator's death, should be "utterly void and of no effect," it was decided that probate and letters, though granted more than thirty years after death, could not be collaterally impeached. Toionsendv. Tomisend, 1867, 4 Coldw. 70. And in Pennsylvania, where the statute prohibited the register (unless ordered by a register's court) from granting original letters of administration on estates of persons who have been dead twenty -one years, it is said that such letters are not void. Foster v. Commonwealth, 1860, 35 Pa. St. 148. See further, as to such limitations, 1 Williams, Ex., 6th Am. ed. 519, n. /. VI. In a suit on the administration-bond, the administrator and his sureties are estopped to deny the jurisdiction of the probate court to grant administration. People v. Falconer, 1848, 2 Sandf. (N. Y.) Superior Court, 81; Field v. Van Cott, 1874, 15 Abb. N. Y. Pr. N. s. 349; s. c. 5 Daly (N. Y. C P.), 308; Foster v. Commonwealth, 1860, 35 Pa. St. 148. The bond is good at common law. McChord v. Fisher's Heirs, 1852, 13 B. Mon. 193; Pritchett v. People, 1844, 1 Gilm. (111.) 525. EXTRACTS 475 From Manuscript Treatise on Probate Law. court, where there were parties before the court. It is for this reason that a probate in common form, letters testamen- tary, and of administration, in many cases are repealable. 1 [Remedies of Heir where Estate incorrectly represented Insolvent.] Though it is in the power of the executor or administrator to defeat the title and enjoyment of the devisee or heir, yet, if it happen that the real estate is not necessary for the payment of debts, the heir or devisee, as the case may be, will be en- titled to the rents or proceeds of sale, and it will not be blended with the personal estate. 2 And if it can be made to appear that the representative has acted maid fide in making the representation of insolvency, or in applying for license to sell real estate, there can be little doubt that an action would lie for the heir or devisee to be compensated in damages for injury sustained by the proceed- ings in administering the real estate. [Who may be Appraisers.] With us, creditors and next of kin to the deceased are con- sidered as unsuitable persons for the office of appraiser. But there does not seem to be any good reason for this opinion. The interest of the persons so circumstanced would lead them to make diligent search for the estate, and to appraise it at least as high as the worth : if at more, the representative is not injured. [Inventory. Whether Administrator can take Advantage of an Appraisal at too low a Valuation.] If the value set down in the inventory be too high, the representative may, by license, sell, and then he shall account only for the product ; or he may, in some cases, discharge himself, by producing on his account the estate itself. Laws, 247, 255 ; 4 Burn, 265. 1 See Symmes v. Libbey, reported ante, 137. 2 As to the respective rights of the administrator and the heir, where a solvent estate is settled in the insolvent course, see Carter v. Jackson, 1876, 56 N. H. 364 ; and cases there collected, 368-374. 476 EXTRACTS From Manuscript Treatise on Probate Law. As he cannot be prejudiced by too high a valuation, so he ought to derive no advantage from one too low. He is a trustee, and ought to account for the true value, of which the appraisement is only primd facie evidence. This is the rule in the English courts of equity, and it is a reasonable one. Independent of the circumstance that the representative is not bound by the appraisement if he deems it too high, — which, on the score of reciprocity, should leave the other party at liberty to object if they deem it too low, — it would be particularly injurious, in this State, to consider it as con- clusive on the creditors and heirs ; inasmuch as the appraisers are usually nominated by the representative, though appointed by the judge, and the business is generally transacted in the absence of the party concerned in interest. Besides, it may happen that there be fraud and collusion between the appraisers and the representative. Toll. 196. But, where nothing of this kind can be fairly imputed to the persons concerned in making the inventory, creditors and heirs may be aggrieved by the appraisement. It may have been originally set too low, by mistake ; or, which is a case that will often happen, the article may rise or fall in the market. Toll. 340. Now the representative can protect himself from loss in the case of a fall. Why should he derive any advantage from the rise ? Against this doctrine may, perhaps, be urged, the clause of the statute of Feb. 3, 1789 (p. 247), that the administrator shall account for the personal estate as appraised, unless a sale is ordered. The meaning is that he shall account for the ap- praised value at least, if he do not sell. His not selling, or not producing the article itself, is evidence that the appraise- ment is not too high. But these circumstances furnish no evidence that the appraisement is not too low. (a) But, if it should be holden that an executor (concerning whom the statute is silent) or administrator is entitled to take the personal estate at the appraisal, he should not be permitted (a) And, upon a strict interpretation of the statute, what hinders the judge from ordering a sale; and at the instance of an heir, cred- itor, &c. ? EXTRACTS 477 From Manuscript Treatise on Probate Law. to take less than the whole. To permit this would give him a very great advantage over the other party. 1 [Allowance to Widow. How charged in Account.] There is also another charge on the assets, which has a preference over debts ; namely, the allowance made by the judge of probate to the widow of the deceased. Laws, 243, 257. This may (especially where the allowance is made in kind) be considered as a determination that certain articles are not assets. It is usual, however, whether made in money or specific articles, to place it on the credit side of the admin- istration account. [Payment of Debts. Privileged Debts.] The great principle of our laws for the settling the estates of persons deceased is justice founded on equality. The estate of the deceased is considered as a fund out of which the creditors (the charges being deducted) are to be first satisfied. One creditor is not permitted to acquire an undue preference, and, by so doing, prevent an equal distribution among all the creditors. In England, where a trader becomes bankrupt, the law pro- vides for an equal distribution of his estate among his creditors. 4 Burn, 296 ; 3 G. Bacon, 84. But where a person dies in- solvent, this equitable rule of distributive justice is disregarded, and creditors of one description are entitled to full payment ; 1 The inventory is not conclusive for or against the administrator as to the value of the articles inventoried. Willoughby v. McCluer, 1829, 2 Wend. 608; Ames v. Downing, 1850, 1 Bradf. 321; and see ZiUcin v. Carhart, 1855, 3 Bradf. 376. Such is now the statute rule in New York. N. Y. Rev. Stat. 6th ed. vol. 3, 733, § 14. The inventory does not preclude the administrator from showing that the intestate did not own the property inventoried. Hoover v. Miller, 1858, 6 Jones (N. C), L. 79 ; Cameron v. Cameron, 1862, 15 Wis. 1. See Briggs v. Probate Decree, 1817, Brayt. 103. See further, as to effect of inventory, Bradford, Surrogate, in Mont- gomery v. Dunning, 1852, 2 Bradf. 220, and in Thomson v. Thomson, 1849, 1 Bradf. 24, 30-32; 2 Redf. Wills, ed. 1866, c. 7, § 30, H 10, n. ; 3 Wil- liams, Ex., 6th Am. ed. 2081, n. As to its admissibility against strangers, see Seavey v. Seavey, 1858, 37 N. 11. 125. 478 EXTRACTS From Manuscript Treatise on Probate Law. while others, whose claims have equal, and, in some cases, superior, merit, can recover nothing. It is generally in the power of the executor or administrator to give a preference, according to his mere pleasure or caprice. Toll. 224, 225 ; Chris. N. II. 611 ; 1 Went. 143; 4 Burn, 295. In this State the very reverse takes place. While the debtor is alive, one creditor may secure his whole debt, while another shall be able to obtain nothing, (a) But when the debtor is dead, the general principle of the bankrupt laws, with a few exceptions, is adopted. (6) These exceptions are now to be considered under the head of privileged debts, or debts entitled to priority. 1. Debts contracted in relation to the last sickness of the deceased. Laws, ed. 1797, 255. This preference is founded on humanity. It is calculated to procure for the poor debtor, when he is incapable of providing for himself, that assistance and support he so much needs. As the duty is enjoined by humanity, legislators are bound to afford every encouragement for the performance of it in their power. There does not seem to be any rule established for deter- mining what charges come within the description of last sickness. 1 2. The second species of debts entitled to priority are those due for rates and taxes, and — 3. Debts due to the State and the United States. Laws, 255. 2 The true reason for the preference, I apprehend, is, not the dignity and importance of the creditor, but " the regard the law hath to the public good, beyond any private interest." 3 G. Bacon, 79. The public, who are capable of acting only (a) So an insolvent debtor may prefer one creditor to the rest. (b) Et vide 1 Campb. 147 and n. as to equity. 1 See Huse v. Brown, 1831, 8 Greenl. 167; 2 Williams, Ex., 6th Am. ed. 1055, n. b. Claims for last sickness are all of equal degree; the executor cannot prefer one to another. Bennett v. Ives, 1862, 30 Conn. 329. 2 For the present order of preference, see Gen. Stat. c. 180, §§ 18, 19; and also c. 177, § 15. EXTRACTS 479 From Manuscript Treatise on Probate Law. by agents, are subjected to disadvantages when their rights and interests come in competition with individuals who act for themselves. As to taxes, it can work no injury to consider them as a lien on the estate of the subject. The same thing may be said of debts due to the public. They are generally matters of no- toriety, and persons, in giving credit, may be supposed to cal- culate upon them. The act of Congress, March 3, 1797, declares that the debt due to the United States shall be first satisfied. This must be understood to mean first of the debts. Comparing this provi- sion with our law, it seems reasonable to place it on a level with the last class of privileged debts. Some English writers make mention of a very equitable preference after those just mentioned, — the wages of domestic servants and laborers. 2 Coll. Jurid. 460 ; Toll. 225. Our statute does not warrant this very reasonable priority, (a) [The Insolvent Course of Administration ; and the Solvent Course.] The former proceeds on the ground that there may be a de- ficiency of assets. The fact may, indeed, be otherwise, in the same manner as, in bankrupt proceedings, it may eventually happen that the reputed bankrupt is solvent. Chris. N. II. 602. 1 The latter course of administration supposes that the assets will be sufficient ; proceeding in this course is an admission of assets. 1 Swift, 428, 429; Kirby, 246. If the contrary be really the case, still the executor or administrator is bound to pay all the debts, unless he can shift his course and place him- (a) In the ancient laws of Virginia, the price of a wife, which was estimated at 150 lbs. of tobacco, was made of greater dignity than any other debt. 1 Life of Wash. 62. 1 Holmes, American Annals, 205. "The price of a wife shall have precedence of all other debts in recovery and payment, because this merchandise, of all other, was deemed the most desirable." Va. Fundam. Laws, Chalmers, 46. 1 In a note to a subsequent passage, the author refers to 1 Hutch. 394, for the " origin and history of our insolvent course of administration." 480 EXTRACTS From Manuscript Treatise on Probate Law. self in that situation where he can apportion the assets among the claimants equally, that is, adopt the insolvent course ; for in no other way can this be accomplished. [Representation of Insolvency. When to be Made.] Doubtless one reason for prohibiting creditors from suing till the expiration of one year was to give the executor or ad- ministrator sufficient time to ascertain the condition and cir- cumstances of the estate, and the claims upon it, and to make his election as to the course to be pursued in the administra- tion. («) And this period will generally be sufficient for the purpose. The statute does not require in express terms that the rep- resentation of insolvency should be made in one year ; but it declares that it shall be done before the payment of any debts except those entitled to priority. (6) The executor or admin- istrator is not obliged to pay within a year. The honest cred- itor is injured by delay, not only as it respects the time of payment, but as it tends to lessen the sum he shall eventually be entitled to receive ; length of time being calculated to in- crease the charges of administration, and being also unfavor- able to honest claims, and favorable to those which are unjust. If the representation can be made after the year, it may be made after suit brought, and even after judgment rendered. It would be no small hardship to those creditors whose debts are small, after having incurred considerable expense, to be turned round to the insolvent course of administration, and consequently to suffer a loss on the costs. 1 On the other hand, it may happen that an estate may, for (a) See Kames, Law Tracts, 353. (6) Perhaps the meaning is that the executor or administrator shall not be allowed in respect to any payment, except for debts entitled to priority. 1 In a subsequent part of the treatise it is said in a note : " Semble, commissioners .may allow costs in action pending on the claim and abated by death of the insolvent; " and reference is made to 12 Manuscript Reports, 249, where there is an intimation by the court to the same effect. See the present statute. Gen. Laws, c. 198, § 8. EXTRACTS 481 From Manuscript Treatise on Probate Law. some time, appear amply sufficient to pay the debts, and, after the expiration of a year, and after payment of some of the debts, by the destruction of property, the unexpected failure of debtors, or by the appearance of claims before unknown, it may be found to be deeply insolvent. 2 Eq. Cas. Abr. 452. In such case it would hardly be compatible with our ideas of justice to compel an innocent administrator to pay the creditors out of his own estate, (a) The last paragraph in the Act for the Equal Distribution of Insolvent Estates (Laws, ed. 1797, 260) seems to imply that the representation of insolvency may be made after a year. But this clause may be applicable only to suits abated by the death of the defendant, and revived against his representa- tive. It has been determined in Connecticut, where the law, in this respect, is like ours, that the executor or administrator, at any time in the course of the administration, when he discov- ers that the estate is insufficient to pay the debts, may repre- sent it to be insolvent. 1 Swift, 440. As three years is the longest period allowed for exhibiting demands against the estate of a person deceased, and as within that period the executor or administrator, by an ordinary de- gree of care and diligence, must have collected and secured the assets, it seems reasonable not to permit the representation of insolvency to avail beyond that period. It is conceived that an administrator de bonis non may pro- ceed in the insolvent course of administration commenced by his predecessor, and may also adopt this course as well as the original executor or administrator. (6) [Whether Commissioners have Authority to allow a Balance in Favor of the Estate.] Where there are mutual debts between the deceased and a creditor, one debt may be set off against the other, and the balance due after such set-off shall be allowed in the same (a) In case of representation of insolvency, made after suits com- menced against him, see Mass. Law ; and see 1 Mass. Rep. 502. (6) 6 Mass. 448. 31 482 EXTRACTS From Manuscript Treatise on Probate Law. manner as in cases of bankruptcy. 1 Atk. 90 ; 1 Swift, 441 ; Cullen, 192 ; 7 T. R. 378. It may be doubted whether the commissioners have author- ity to give a balance to the estate of the deceased person, 1 and yet it seems reasonable that they should; for otherwise their decision upon the creditor's claim exhibited will be ren- dered of no effect, and when the executor or administrator sues he must sue for the whole demand; of course the other party will be entitled to plead his by way of set-off, and in this State may recover a balance contrary to the decision of the commissioners. Perhaps the proper course to be pursued by the commis- sioners is to give the balance, where the executor or adminis- trator exhibits his claim, and it is less than that of the creditor, in which case it should be expressed in the report as a balance. But where the representative does not exhibit, or where the latter demand exceeds the former, as they cannot do complete justice, they may allow the claim exhibited so far as it is just, and leave the representative at liberty to prosecute his demand at law, in which case the other party will be enti- tled to set off the sum allowed by the commissioners as a liqui- dated claim. [Power of compelling Commissioners to make Report.] [The judge of probate] does not seem to possess the power of compelling them [the commissioners] to make report after they have heard the claims. But it is conceived that the Su- perior Court, by virtue of their general superintending power over all inferior jurisdiction, may, by mandamus, compel the commissioners to execute the duties of the office, and to make due return of their doings. 1 The present statute is as follows : — " When there are mutual demands between the deceased and the person claiming as a creditor, which, if due, might be legally or equitably offset against each other, the commissioner, if there is a balance in favor of such creditor, shall consider such mutual demands, and allow the creditor only the balance justly due." Gen. Laws, c. 199, § 9. EXTRACTS 483 From Manuscript Treatise on Probate Law. [Insolvent Administration. Non-exhibiting Creditors barred, although the assets prove more than sufficient to pay the Claims Exhibited and Allowed.] As to those who do not exhibit, it is declared " that no action against any executor or administrator of any estate represented insolvent shall be sustained, except as above men- tioned ; " and " that all demands against any insolvent estate not exhibited to the commissioners whilst the commission of insolvency is pending, shall be for ever barred, unless the cred- itor can find some estate of the deceased not inventoried or accounted for by the executor or administrator." Laws, ed. 1797, 257, 259 ; Kirby, 423. 1 These passages admit of two constructions only. First, that the bar spoken of extends only to demands against an estate really insolvent, and that the prohibition to sue at law is to be understood as limited to the pendency of the commission of insolvency, or, at most, till such a settlement takes place as shall clearly demonstrate that the estate is solvent. The second construction is, that when an estate is adminis- tered in the insolvent course, the demands of all the creditors not exhibited to the commissioners, except those specially ex- cepted, are barred in the same manner as, in bankruptcy pro- ceedings, debts due from the bankrupt at the time of the act of bankruptcy committed are barred, if not proved under the commission, though it should eventually happen that the estate should be solvent. Act Congress, 69; 1 Atk. 90. In support of the former construction, it may be urged that these principles are the basis of our administration laws, namely, that the creditors shall receive satisfaction out of the estate of their deceased debtor ; that nothing goes to heirs or devisees where there are unsatisfied debts ; that the insolvent course of administration was devised for the purpose of secur- ing to creditors equality in the distribution, and at the same time of protecting the honest administrator from personal responsibility in case of a deficiency of assets. They who contend for this construction must admit that no 1 See present statute, Gen. Laws, c. 200, § 16. 484 EXTRACTS From Manuscript Treatise on Probate Law. suit should be sustained as long as it is doubtful whether the estate is solvent or not, and therefore that doctrine that the bar is confined to the pendency of the commission of insol- vency must be abandoned. But why should it be complained of as a greater hardship, that creditors who do not exhibit their demands should be barred in this case any more than in others? It is certainly very necessary that claims should be speedily prosecuted, that the estate may be settled in a reason- able time. Allowing the testamentary or legal heirs of the insolvent to enjoy the surplus which may remain after paying the claims exhibited is no greater hardship or injustice than allowing the bankrupt to enjoy his estate which remains after satisfying the debts proved under the commission. But a sufficient answer to the doctrine that non-exhibiting creditors are entitled to satisfaction out of the estate which remains after paying all the claims allowed and the charges is that, according to our system of laws, it is wholly im- practicable. Let us suppose this surplus to be $500. Sup- pose also that the non-exhibiting creditors have just claims to the amount of $1,500. How shall these be satisfied? The estate is still insolvent. When one of these creditors sues, he must either recover the whole or no part 1 of his demand. Courts of common law cannot liquidate all the claims, and consequently cannot apportion the assets ratably. They cannot even know how many claims of this description exist. The inconvenience and injustice complained of might be remedied in this way. Provision made by law, that creditors after the limited time might go on to prove their debts, either at law or before the commissioners, to be satisfied out of any assets remaining after satisfaction of the claims exhibited and proved within the time limited. 2 Bro. 48, 50, 119, 120. (a) (a) In Connecticut, where the law is similar, it is conceived, to ours in this particular, a claim under such circumstances that it could not be exhibited within the limited time is not foreclosed, but may be recovered afterwards if the estate prove solvent. 1 A pencil note indicates the reading " a part," instead of " no part;" but it is not certain that the note was made by the author. EXTRACTS 485 From Manuscript Treatise on Probate Law. The statute (p. 257) provides, in favor of non-exhibiting creditors, that, if they can find estate of the deceased, not in- ventoried or accounted for, they shall receive out of it a divi- dend equal to what the other creditors received, the residue to be added to the general fund, and divided in due proportion among all the creditors. [Failure of Executor to proceed promptly with Settlement of Estate after adopting Insolvent Course.] In case the executor or administrator, after permission to administer in the insolvent course, shall neglect to take out a commission of insolvency ; to appear before the commissioners and take care of the interest of those concerned in the estate ; to cause the commissioners to perform their duty, and make return of their proceedings ; and generally to do every thing which the duty of his office requires to be done, that the estate may be speedily and honestly settled in the insolvent course of administration; the judge of probate ought to have power, in case he has it not, to discharge the insolvent proceedings, and turn the administration into a solvent one, that the represent- ative of the deceased may not have it in his power to avail himself of a shield so unworthily employed, (a) [Of the Statute exempting Executors and Administrators from Suits for One Year. N. H. Laws, Ed. 1797, 260.] The words of the act giving this privilege are broad enough to comprehend administrators de bonis non, and other special administrators. 1 But giving the act this construction might, in effect, deprive creditors of any remedy. (a) It seems pretty clear that the judge of probate may at any time order the executor or administrator to account, and, if he has neglected to perform his duty in carrying on the administration in this course, he may be punished in damages on the administration bond, because this will not be administering according to law. A decree of distribution cannot be made till the claims are liquidated. If a claim is allowed by fraud or collusion between the claimants and the representative, the judge may charge the executor or administrator with the amount of it. 1 The present statute prohibits suits " within one year after the original grant of administration." Gen. Laws, c. 198, § 1. ■l*i*, EXTRACTS From Manuscript Treatise on Probate Law. It cannot extend to actions on the administration bond, for that may be forfeited in three months. 1 [Of Contribution between Specific Devises and Specific Legacies fok the Payment of Debts.] [After enumerating the classes of assets which must be applied before recourse can be had to specific devises and legacies.] If these prove insufficient, recourse must then be had to the estate, real and personal, specifically devised and bequeathed (4 Burn, 334, 338), and the devisees and legatees must contribute ratably. In England, on account of the favor shown to lands, the personal estate specifically be- queathed must be first applied. But it is conceived that this doctrine adopted here would generally counteract the inten- tions of the testator, (a) 2 (a) And it may well be doubted whether specific legatees and devisees should not be held to contribute ratably with the pecuniary legatees, especially where they are all in the same relation to the testator. It is not uncommon for parents to give the real estate to sons, specific legacies to the widow, and pecuniary legacies to the daughters. It may be observed, in answer to this, that it is to be presumed that the testator knew the legal preference of specific legatees over general and pecuniary ones, and also that a bequest of a particular chattel furnishes evidence more clear of the intention of the testator in favor of the legatee, than what results from a general legacy bottomed on an uncertain fund. Probably the difficulty in practice of applying the doctrine of abatement to specific legacies may also have had some influence in forming the rule. 1 See note to Parker v. Willard, reported ante, 1212. 2 Specific devisees must contribute ratably with specific legatees. Gen. Laws, c. 203, § 14; Farnum v. Bascom, 1877, 122 Mass. 282; Armstrong's Appeal, 1869, 63 Pa. St. 312; HalloweWs Estate— Teases Appeal, 1854, 23 Pa. St. 223; Wagner, J., in Brant's Will, 1867, 40 Mo. 266, 280, 281. And see Bradford, Surrogate, in Skidmore v. Romaine, 1852, 2 Bradf. 122, 13,2. Contra. Rogers v. Rogers, 1828, 1 Paige, Ch. 188; Miller v. Harwell, 1819, 3 Murph. (N. C.) 194; Harper, J., in Warley v. Warley,'18Sl, 1 Bailey, Eq. 397, 409; Hull v. Hull, 1850, 3 Rich. (S. C.) Eq. 65 (overruling the opinion of Dargan, Circuit Chan., reported s. c. 66-77) ; Lee, J., in Elliott v. Carter, 1853, 9 Gratt. 511, 549, 550. In some American cases, contribution has been held enforceable only EXTRACTS 487 From Manuscript Treatise on Probate Law. [Whkn Administrator may plead Insolvency of Estate in Bar to scire facias.'] When a creditor or legatee recovers judgment against an ex- ecutor or administrator, the first execution is de bonis testatoris or intestati. If return be made that the representative refuses to show goods of the deceased (for it will not be sufficient that he show lands), scire facias is then brought to have execution de bonis propriis. 1 Swift, 428, 429 ; Brattle v. Willard, C. C. U. S. [reported ante~\. To this the executor or administrator cannot, generally speaking, plead what he might have pleaded to the original suit. Muffin v. Pendleton, 1796, 2 Wash. (Va.) 184. (a) But, if the judgment was merely to liquidate the claim, or obtained on the report of referees, (6) or the estate be repre- sented insolvent after the rendering of the judgment, it would seem that the insolvency may be pleaded in bar. (a) The case is the same in respect of other matters. The defendant to a scire facias on a judgment cannot plead alienage of the plaintiff. Errors in process and the proceedings are waived by omitting to plead them or take advantage of them in season. 1 G. Bacon, 140. (ft) Where the judgment is for the defendant on a submission of all demands, it is clearly an award sanctioned by a court of law to be executed in the manner other judgments are, and this according to the particular practice of this State. as to specialty debts: Shreve v. Shreve, 1864, 17 N. J. Eq. (2 C. E. Green) 487 (and see also Beasley, C. J., in Thomas v. Thomas, 1866, 17 N. J. Eq. (2 C. E. Green) 356, 358); Chase v. Lockerman, 1840, 11 Gill & J. 185, 204; or where the testator gives a general direction that his debts shall be paid : Shreve v. Shreve, 2 Stockt. 385 (see also Elliott v. Carter, ubi sup.). In England, since the statute 3 & 4 W. & M. c. 14 (making both lands and chattels liable for specialty debts), specific devisees must contribute ratably with specific legatees to the payment of specialty debts. This was so held, in Long v. Short, 1717, 1 P. Wins. 403; and the authority of that case, though at one time doubted, is now fully established. Gervis v. Gervis, 1847, 14 Sim. 654; Tombs v. Roch, 1846, 2 Coll. 490 (see especially Knight Bruce, V. C, 503). It is said that, in England, con- tribution is no longer confined to specialty debts, now that simple-contract creditors have a remedy there against the land. See Adams, Eq. 263, Am. n.; 3 Williams, Ex., 6th Am. ed. 1796, I. 1. 488 EXTRACTS From Manuscript Treatise on Probate Law. [Whether Administrator in Solvent Course may set up Want of Assets in Defence to scire facias.] By electing to pursue the solvent course of administration, the executor or administrator admits assets as far as creditors are concerned, (a) and therefore, after a year, a suit may be maintained against him by the creditor. He may plead every thing in bar which the testator or intestate could have pleaded, and also the limitation prescribed by the statute as to exhibiting the demand to him. Laws, ed. 1797, 249, 251, 252. But he cannot plead any thing in denial of assets, unless the estate were exhausted in the payment of charges, or in charges and debts entitled to priority, in which cases, the same being so settled in the probate court, he may plead the facts, and prove them by a copy of the proceedings. 3 G. Bacon, 87. The judgment is (if against the executor or administrator) against the estate of the deceased, and the execution is de bonis testatoris vel intestati. If the sheriff return nulla bona or devastavit, or, which is the same thing, that no goods of the deceased are shown to him whereon to levy (though lands may have been shown), the creditor may then have a scire facias, suggesting waste, and praying for execution de bonis propriis. N. H. Laws, 238, 250 ; Mass. Laws, 8vo, 93, 94. To this the executor or administrator cannot plead any thing which he might have pleaded to the original suit. Kirby, 257 ; 1 Salk. 310. But if the insolvent course of administration has been com- menced since the judgment in the original suit, it may be pleaded in bar of execution. 1 So where the judgment was rendered pending the insolvent proceedings, or, after their, commencement, on the report of referees and submission of all demands, in a suit by the exec- utor or administrator against the person obtaining judgment, («) Or, more correctly, — By neglecting to proceed in the insolvent course, the executor or administrator admits that, if there is any thing for the creditors whose debts are not entitled to priority, there is enough for all ; for a court of law can make no apportionment. 1 " Quasre " is written in the margin against this paragraph. EXTRACTS 489 From Manuscript Treatise on Probate Law. in which case it could not be pleaded before ; or on an action brought against the executor or administrator, and he, having objection, shall have consented to this mode of liquidating the claim (N. H. Laws, ed. 1797, 259), — the insolvent proceed- ings may be pleaded in bar of the scire facias. It is difficult to understand what is meant by a clause to be found both in the testate and intestate acts (N. H. Laws, ed. 1797, 238, 250), that, on scire facias suggesting waste, the ex- ecutor or administrator shall be subjected to execution of his own goods and estate to the value of the waste committed, where it can be ascertained ; otherwise for the whole sum recovered, (a) (a) These paragraphs are copied literally from the Province Law enacted May 14, 1714; and are similar to the Massachusetts Law, 8vo, 93, 94. It is now settled in England that the executor or administrator to the original suit may plead plene administravit, as well as non assumpsit of the testator or intestate, and the jury may find how much he has administered, how much he has wasted; and he shall only be charged for what remains unadministered, or to the amount of the waste. 3 T. R. 687. But where he is supposed to admit assets by not denying them, he is always charged for the plaintiff's whole debt. It is probable this clause was intended to remedy this evil. And, as the admission took place in the original suit, he was allowed to deny assets on the scire facias, and he was chargeable only with the amount of assets or the amount of waste. This would be the effect of the clause on the supposition the English course of adminis- tration, as it respects paying debts, was pursued here. But here there can be no such thing as an apportionment of assets, except in the insolvent course. To give effect, therefore, to this clause, the executor or adminis- trator should be permitted, after judgment, to adopt the insolvent course, and to plead it to the scire facias. In this way, the amount of the assets or waste can be ascertained and the representative charged. A similar clause in act of Parliament would have this effect. When the creditor on default, confession, or omitting to plead want of assets on the part of the executor or administrator, recovered judgment; or when, on plene administravit pleaded, it was found against the representative, and the sum unadministered was not ascertained, — on scire facias for execution de bonis propriis, the representative might plead, in the case of admission of assets, " I have not wasted ; let the jury now inquire." By not pleading want of assets in season, he would be subjected to judgment; but, if it appeared that he had not wasted, judgment would be for damages merely nominal; and, if he had wasted, only to the amount of the waste. And, 490 EXTRACTS From Manuscript Treatise on Probate Law. [Remedy against Executors and Administrators by Creditors in the English Law; how it might be made more Direct. 1 ] [Where the representative by his pleading in the original suit has admitted assets], if the debt is established, the con- in the case of plene administravit pleaded and found against the representa- tive, the jury would now liquidate the sum in respect of which he was justly chargeable. In this State, if the clause has any effect, it must be this: to permit the representative on scire facias to plead in such a manner as to prevent his being chargeable beyond the assets or beyond waste committed. Proceed- ings in the probate court will clearly ascertain both. What he is charged with in his administration account is all the estate he has received or could receive. He is charged with the full amount of waste committed by him.* 1 This, and the five next extracts, have been taken from notes, in the nature of an appendix, at the close of the treatise ; and are inserted in this place on account of their bearing on the topic of the extract imme- diately preceding. Perhaps, upon a revision, the author would have sub- stituted portions of the Appendix in place of some passages in the body of the work. * The question whether an administrator can plead want of assets to a scire facias founded on a judgment rendered in an action where he was defendant, has not been decided in any reported case in this State. In Pillsbury v. Hubbard, 1839, 10 N. H. 224, 233, Parker, C. J., expressed the opinion that the defendant administrator could plead this defence to a scire facias. See also Sawyer, J., in folsom v. Blaisdell, 1859, 38 N. H. 100, 103, 104. In Peaslee v. Kelly, 1859, 38 N. H. 372, Bell, J., used language from which a contrary inference has sometimes been drawn. But in none of these cases was this point directly before the court. In Pillsbury v. Hubbard, the sole question was as to the form of entering judgment in the first instance ; there was no scire facias pending. And both in that case and in Folsom v. Blaisdell the administrator was plaintiff in the original action. Peaslee v. Kelly came before the court upon demurrer to the scire facias. The question was as to the sufficiency of the plaintiff's allegations, and not as to what might be pleaded in answer thereto. There is, however, an unreported case where this point was directly decided; viz., Danitl A. Hill v. Alexander Rogers, Fx'r, Merrimack, June Law Term, 1871. This was a scire facias, alleging recovery of judgment by plaintiff against defendant, executor of Frances A. Goodrich, October Term, 18f>8, the issuing of an execution against the testatrix's estate in defendant's hands; and a return of nulla buna. Defendant, in answer to the summons to show cause why execution should not issue against him de bonis propriis, pleaded: 1st, That on the day of the issuing the writ of scire facias, he had fully administered all the goods and chattels of the testatrix which had ever come into his hands, and that he had no goods of the testatrix in his hands at the time the judgment was rendered, or on the day the scire facias was issued, or at any time since. 2d, That neither on the day of his appointment, n>r at any time since, were there any goods or chattels which belonged to the testatrix at the time of her EXTRACTS 491 From Manuscript Treatise on Probate Law. sequence is that he is liable for the whole demand. The judgment, indeed, is, that the plaintiff recover against the goods of the deceased. 1 Com. Dig. Adm. C. 3. But on return of execution, and nulla bona or devastavit returned, and debt on the judgment, suggesting waste, or scire facias brought and a similar suggestion made, the question occurs whether he has wasted the assets. This is a short trial ; if, in the original suit, he denied assets, and it was found against him, he is con- cluded from denying it again ; if he omitted to plead want of assets to the original suit, he admitted assets, and shall not now deny that he has any. 1 Wms. Saund. 219 b, n. 8. Execution shall now go de bonis propriis. It would seem that this circuitous course might have been avoided. Wherever the first judgment was rendered in such a manner and under such circumstances that it concludes a denial of assets on a scire facias or action founded on it (3 T. R. 688), the judgment might have been de bonis testa- toris vel intestati, et si non, de bonis executoris, $c., and execu- tion issue against both. 1 Wms. Saund. 219, n. 8. [Omission by the administrator to seasonably plead Insolvency; considered under the head of remedies against administrator by English Law.] Nothing can be pleaded to scire facias on judgment, which might have been pleaded to the original suit. If a party do decease; and that no goods or chattels which belonged to the testatrix at the time of her decease, at the time of his appointment as executor, or at any time since, ever came to his hands to be administered. Plaintiff demurred to both pleas. It was decided (one or more of the judges dissenting) that the pleas were bad. It wa-, however, intimated that, if good cause could be shown for such a proceeding, the executor might obtain an order at the Trial Term to bring forward the original action and vacate the judgment, giving him leave to plead anew in that suit. Such a motion was made in that case at April Trial Term, 1872. The presiding justice denied the motion, but not upon the ground of want of power to grant it. In Raymond v. Stiles, reported ante, 87, it was held that an administrator in the sol- vent course cannot plead want of assets to debt on a judgment recovered against him, suggesting waste. As to the author's view, that the administrator may, after judgment, adopt the insolvent course of administration and plead the insolvency proceeding-; in answer to the scire fiieias, see note to a subsequent "Extract," citing Coleman v. Hull, and other cases. This method of defence was not attempted in the New Hampshire cases above cited. 492 EXTRACTS From Manuscript Treatise on Probate Law. not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards plead it, either in another action founded on it, or on a scire facias. The case of Harris v. Hale, adm'x, in the county of Cheshire, was rightfully decided on this principle. She omitted to plead the insolvency when she ought to have pleaded it. [Remedies against Executors and Administrators by our Law.] The general principle of the English law, that the represent- ative is chargeable to the amount of the assets under his control, and no farther, prevails here. It is also conceived that the principle, that, if a party do not avail himself of an oppor- tunity of pleading matter in bar to the original action, he can- not afterwards plead it, either on another action founded on the judgment, or on a scire facias, will be recognized here. [Administrator in Solvent Course cannot plead a General plene adminislravit ; but may, in certain cases, plead a Plea in the Nature of a Special plene adminislravit.'] Where the executor or administrator does not proceed in the insolvent course of administration, he cannot deny assets ; he can only plead to the merits of the demand. Plene administravit, general or special, in England, is a plea which denies that there are any assets to satisfy the debt to which it is pleaded, or beyond a certain sum. It is not a denial of assets to satisfy debts in general. When it is pleaded, the jury try the truth of the plea ; that is, they examine the administration account ; what estate the adminis- trator has realized or might have realized ; waste committed by him, positive and implied ; the administration charges ; debts paid. These things can be tried nowhere else at law ; they cannot be tried in the spiritual court, though they may be tried, and usually are, in equity. 2 Fonbl. 413 (£). But our probate courts, by their own powers and by the intervention of commissioners, try these questions. Our courts of common law cannot. With us, in case of an insolvent administration, the creditors cannot generally sue at law ; in cases where they can sue, still the courts are bound by the doings of the probate EXTRACTS 493 From Manuscript Treatise on Probate Law. court. It is absurd to say that the executor or administrator can plead plene administravit when our courts are incompe- tent to try the plea, (a) Administering in the insolvent course is the only way in which, in general, the assets can be apportioned. Where there is any estate for any creditor not privileged, but not enough to pay them all, the estate must be administered in that course. Where, therefore, the executor or administrator does not pur- sue the insolvent course of administration, he admits assets, provided there is any estate to be apportioned among the unprivileged creditors. (6) But where there is no estate to be apportioned, there is no need of administering in the insolvent course ; that is, where the assets are exhausted in the charges, or where no estate is found to be administered upon. It would be absurd to sub- ject the administrator or the creditors to the expense and trouble of proving their debts where there were no assets to satisfy them. So, where the estate shall be exhausted in payment of the charges and the debts entitled to priority, there is no occa- sion to administer in the insolvent course. In both cases, certainly in the former, the estate may be fully settled in the probate court without the intervention of commissioners. And when so settled, this may be pleaded, as a sort of special plene administravit, to the action of a creditor ; the plea will show that the estate has been administered according to law, and that there is nothing for the demand in suit. 1 [What may be pleaded by an Executor to a scire facias for an Execution de bonis propriis.~\ But let us now suppose that judgment is obtained against the executor or administrator, and inquire what defence he can set up to a scire facias for execution against his own estate. (a) Defendant must plead what the court can try the truth and legal effect of, viz., the proceedings in the probate court. (b) And if there be none, he must so plead. 1 See note to a previous " Extract " on the same topic. 494 EXTRACTS From Manuscript Treatise on Probate Law. Here we shall have occasion to examine the doctrine what shall be an admission of assets, and what shall charge the executor or administrator. As to false pleading of the executor or administrator, and judgment against him, it does not come under our considera- tion here ; the first judgment is against the executor or admin- istrator as well as against the estate of the deceased. 1. If, at the time of pleading to the scire facias for execution de bonis propriis, the estate is under the solvent course of administration, nothing can be pleaded in bar of execution which could have been pleaded before. The English doctrine strictly applies, (a) 2. But let us suppose that the estate was under the insol- vent course of administration at the time of rendering the original judgment, or at the time of commencing the suit on which it was rendered, and the insolvency were then pleaded, and the plea found to be no bar. It certainly ought not to be again pleaded to the scire facias. 3. We will now suppose that it was not pleaded (6) though the administration was then going on in the insolvent course, but that the judgment was rendered on default, confession of the plaintiff's demand ; plea either the general issue or in bar of the demand. Can the executor or administrator now plead the insolvent course, and so compel the creditor to take his dividend with the other creditors, if his claim was liquidated before dividend made, or, if liquidated afterwards, to come in for after-dividend or new estate only if he should discover any unadministered ? If we say he may now plead the insolvency, do we not con- tradict the principle that he shall not plead to the scire facias (a) All the reasons which forbid such a plea [a general plene adminis- traoit f] to the original suit exist, and the additional ones which are the ground of the principle that, on scire facias, a party shall not avail himself of what he might have pleaded to the original suit. (b) In Massachusetts (1 Mass. 234), there is an act which says that executors, &c, may give special matter in evidence under the general issue (Act March 10, 1784, § 9). Qucere, whether, under this, insol- vency may be given in evidence. EXTRACTS 495 From Manuscript Treatise on Probate Law. what he might have pleaded to the original action ? Plead- ing insolvency to the original suit, under these circumstances, is not like pleading want of assets in England. It is no bar to the demand, but only to the remedy. It is not a denial of assets, and therefore omitting to plead it is not an admission of assets. Pleading it was declaration that the executor or administrator does not consent that the claim of the creditor should be settled by course of law. Omitting to plead it is a waiver of objection to that course ; it is a consent that the legal course should be pursued for liquidation. 1 Our law has provided two modes of liquidating demands against estates administered in the insolvent course ; namely, by suit at law, or by the intervention of commissioners. Suffering the suit to go on is evidence of consent to that mode. Confessing judgment when insolvent administration pending, &c, suffering judgment by default, or defending the suit, has precisely the same effect, and no other, as such con- fession, default, or defending would have before the commis- sioners. In this way no injury is done to the creditor, and none to the estate ; it is the shortest and cheapest mode where the demand is disputable. In England, omitting to plead want of assets is implied evidence of assets. Here we have seen that omitting to plead insolvent course is only evidence of consent to adjustment in the course of law ; but, if it were implied evidence of admitting assets, it is rebutted by the adoption and pendency of the insolvent course. 1 The author's views on this topic are based upon a statute long since repealed. The statute then in force (Laws, ed. 1797, 259, 2b'U) allowed an action to be maintained against the executor of an estate represented insolvent, in case the executor or administrator, " having objection to the claim upon which the action is brought, consents to have the same settled by course of law, in which case the judgment of the court shall settle and adjust such claim, and the same shall be final." Judgments so recovered against the administrators were included by the judge of probate with the demands allowed by the commissioners in decreeing a dividend to creditors. This statutory provision for the liquidation of claims against insolvent estates by suits at law has not been in force since the revision of the l'robate Laws in 1822. See the act of July 2, 1822, c. 29, § 7. 496 EXTRACTS From Manuscript Treatise on Probate Law. When, therefore, the creditor attempts to make a use of the judgment to which he is not entitled, he maybe restrained by showing the nature of the judgment, that it was an ad- justment only, and nothing more. The plea will set forth the circumstances under which the judgment was rendered, which will show that it was for liquidation only ; this will be a good bar to the execution, (a) A construction that insolvency cannot be pleaded to the scire facias would render altogether nugatory the section of the insolvent act which provides that the executor or administrator may consent to have a claim adjusted at law. 4. We will rit)w suppose that the representation of insol- vency was made after the original judgment was rendered. It may be pleaded, in this case, to the scire facias. 1 Admitting an executor or administrator to proceed in the insolvent course is admitting him to the privilege of paying the creditors whose debts are not yet paid pari passu. (a) This doctrine, that the executor or administrator may avail himself of the insolvency proceedings on the scire facias, if it required any support, would receive it from two clauses of similar import in our testate and intestate acts (N. H. Laws, ed. 1797, '233, 250), which provide that the executor or administrator, on scire facias, shall only be liable to the value of waste committed by him where it can be ascertained. These clauses, together with that which relates to the intermeddling of strangers with the estate of a person deceased (248), show the extreme care of the legislature that no person should be liable to pay the debts of the deceased beyond the assets. 1 So held in Massachusetts. Coleman v. Hall, 1815, 12 Mass. 570. And a similar defence may be made to a scire facias on a judgment against an executor de son tort, if the defendant has taken out administration and the estate been decreed insolvent since the judgment. Shillaber v. Wyman, 1818, 15 Mass. 322; and see Olmsted v. Clark, 1861, 30 Conn. 108 (but compare Green v. Dewit, 1790, 1 Root, 183). Newcomb v. Goss, 1840, 1 Met. 333, was an action on an administration bond; the alleged breach being the non-payment of a judgment against the administrator. Held, no defence for the administrator that he repre- sented the estate insolvent, after the rendition of the judgment. The opinion, although delivered by a judge who sat in Coleman v. Hall and Shillaber v. Wyman, contains no reference to those cases. EXTRACTS 497 From Manuscript Treatise on Probate Law. The insolvent proceedings, like those of bankruptcy, attach on all debts unpaid. At what time this course may be adopted is a distinct question ; I speak of cases where it is allowed. No injus- tice is done to creditors, no hardship except as it relates to costs. It would be unjust to subject the representatives to the payment of debts beyond the assets. Kames, Law Tr. 366, 371. Not adopting the insolvent course of administration, it is true, is an admission of assets. But it is an admission only while it lasts. The ground of adopting the insolvent course after a year from the taking administration will always be an unexpected failure of assets or unexpected debts appearing. Now the reason why the executor or administrator, in England, shall not plead want of assets to the scire facias is that he could and ought to have pleaded it before. Failure of assets or new demands can have no operation. Every demand made upon him is made on the assets remaining in his hands (enter mains). What he has not yet received is not assets ; he may plead no assets, though he expects to receive a large sum in a very short time ; and the creditor may take judgment of assets quando aceiderint, and this judgment shall bind them. 5. It is conceived that submission of a demand in favor of the deceased to arbitration shall not charge the execu- tor or administrator beyond the true debt. Manuscript, 651, 1039. 6. So there can be little doubt that the submission of a claim against the estate to arbitration will not be here deemed an admission of assets, as it is not at this day in England. Manuscript, 1037. Toll. 364. 1 i But see 3 Williams, Ex., 6th Am. ed. 1883-1885. In a previous passage, Manuscript, 1037, 1038, the author said, " The award shall be deemed only a liquidation of the demand against the estate, unless the e-xecutor or administrator has bound himself by a per- sonal engagement to perform the award, or the sufficiency or insufficiency of the assets be included in the submission." 32 40s EXTRACTS From Manuscript Treatise on Probate Law. Judgment on a submission of an action in court is an award ; the submission is no admission of assets. The executor or administrator neither binds himself personally to pay what shall be found due, nor do the referees inquire into the state of the assets. If the submission were made on a scire facias for execution de bonis propriis, the question would be whether the represent- ative had made himself personally liable or not. So it would be where one was sued for vitious intermeddling. When a submission is made in a suit between the represent- atives of the deceased and another, when the estate is under an insolvent course of administration, it shall be deemed a con- sent that the demand be settled or liquidated in this course, and nothing further, (a) Where all demands are submitted, or any demand not in suit, and the award is in favor of the demand not in suit, it must be considered as an award growing out of the submission. In such case, the scire facias for execution de bonis propriis is the first suit to which the insolvency can be pleaded. 7. But if the executor or administrator is sued upon the award, or upon any judgment which must be considered as a liquidated demand, and does not plead the insolvency, he shall not plead it to the scire facias when he might have pleaded it before. (a) It may be remarked that our statute expressly gives the representa- tive the privilege of consenting that a demand brought against him at law should be liquidated at law, and the statute, in that case, expressly limits the effect of the judgment to that of liquidation only. Clearly, then, the representative, by putting it upon the record in express terms that he suffers this suit to proceed for liquidation only, protects himself against any other effects flowing from the judgment. This suggestion or entry, when made, cannot be contradicted or pleaded to by the creditor or plain- tiff. What necessity, then, that it should be made when the circumstances so clearly indicate the intention that the suit goes on for liquidation only, and when the creditor suffers and can suffer no possible inconvenience from it ? Administering in the insolvent course, which is necessarily a matter of notoriety, is equivalent to notice. It is giving notice to all the world that the administrator does not admit assets. EXTRACTS 499 From Manuscript Treatise on Probate Law. The case of Harris v. Hale, adrnx, in the county of Cheshire, was rightly determined by this principle. 1 In Graggv. Starke, Hillsborough County, October Term, 1798, 1 Manuscript Reports, 255, it was determined that a judgment in default against an administratrix, after the insolvent course of administration commenced, did not authorize the creditor to levy his execution on the real estate of the deceased. In this case, therefore, it must have been considered not as a judg- ment in the common course, but for liquidation ; that is, a judgment against an insolvent estate. For, if it be considered as a judgment against a solvent estate, the creditor, Starke, in that case, had a right to levy on the real estate, and the administratrix had no rights to sell the same land to the plain- tiff, Gragg. 2 1 The following statement of Harris v. Hale is found in a note to another case in 9 Manuscript Reports, 228. Robert Harris v. Abigail Hale, commenced Rockingham, April Term, 1794. Scire facias, setting forth judgment, Harris v. Hale, adtri'x of Nathan Hale, April, 1788 ; damages and costs, £718 16s. 8d. ; pluries execution issued July 18, 1791, satisfied for £36 13s. id., only; nulla bona returned for residue; averment: sufficient assets, waste committed by administra- trix, and prayer for execution de bonis propriis. Plea: Feb. 26, 1782, estate represented insolvent; proceedings in such case usual were had ; plaintiff presented all his claims, £219 16s. 9|rf. ; allowed; Sept. 15, 1787, account of administration settled, and dividend made. Replication: March 10, 1781, suit by plaintiff against defendant; May, 1781, plea, non assumpsit of intestate; issue joined; verdict and judgment, Superior Court, September Term, 1785, damages £921 2s. S, From Manuscript Treatise on Probate Law. in the civil law. 1 Bro. C. L. 175, 176. The thoughts of the Roman jurists were not entangled, like those of the early English lawyers, in metaphysical and abstruse subtilties ap- plied to landed estates. There is still less foundation for the distinction between joint-tenants and coparceners. It seems the jus aecrescendi had place in the civil law between coheirs. It could not, by the same law, be created by deed or inter vivos. It would simplify the law, if the legislature should enact that, in all cases of plurality of owners of lands or goods, they should be tenants in common ; and that there should be no survivorship, except where expressly created. 1 [Influence of Massachusetts upon New Hampshire Law.] During the union with Massachusetts, many of the usages and customs which now obtain, and which form a part of our common law, were formed and originated. Nearly all the acts of our legislature which are now extant, and which were enacted between 1680 and 1718, were copied from the Massachusetts acts ; and it is highly reasonable to conclude that our courts, except where acts of our own as- sembly otherwise directed, continued to be governed by the same principles and maxims which governed them during the union of the two provinces. [Probate Courts in Early Times.] From this and the other passages to be met with in the ancient laws of Massachusetts and Plymouth, (a) it is plain (a) Hutchinson says that the Colony of Plymouth, in criminal cases, took Massachusetts for their pattern, but in civil matters they professed to take the common law for their rule more than was practised in Massa- chusetts. 1 Hutch. 191. 1 " Sect. 14. Every conveyance or devise of real estate made to two or more persons shall be construed to create an estate in common and not in joint tenancy, unless it shall be expressed therein that such estate is to be holden by the grantees or devisees as joint tenants, or to them and the survivor of them, or other words are used, clearly expressing an intention to create a joint tenancy." " Sect. 15. Joint heirs shall be deemed tenants in common." Gen. Laws, c. 135. 504 EXTRACTS From Manuscript Treatise on Probate Law. that there was a great degree of uncertainty in the rules of descent, and consequently a large measure of discretionary power vested in the courts intrusted with the execution of these laws. These courts, it appears, were the county courts. To these belonged the probate of wills, the power of granting administrations, and the settlement of estates testate and in- testate. Sull. 373-380, III. 141 ; Hutch. Appendix, 168. (a) It is probable that the county courts were only inferior courts of probate, the governor and council being the supreme court. 1 Haz. 416 ; Sull. 132 ; Hutch. Appendix, 168. The Massachusetts charter, granted by William and Mary in 1691, authorized the governor, with the advice of the council, to nominate and appoint judges, sheriffs, justices of the peace, and other officers to the council and courts of justice belonging. The general court was authorized and empowered to erect and constitute judicatories, and courts of record, and other courts to be holden in His Majesty's name, (a) The old charter (t. e. the charter before 1692) made no provision on the subject of probates and administrations. The power was exercised by the county courts, and by the governor and assistants. President Dudley (1686), as ordinary, took all matters of wills and administrations into his own hands. Sir Ed. Andros was supreme ordinary, and acted bv himself or his deputy; and all the business was transacted at Boston. He introduced the forms used in the spiritual courts in proving wills, granting administrations, &c, which have been retained. Before that time the forms were loose and uncertain. 1 Hutch. 306, 316, 320, 321 n., 363 n., 366. In testamentary matters the county courts had jurisdiction. 1 Hutch. 393, 394. At the beginning, real and personal estate was governed by the same rules : indeed, there were no settled rules of distribution ; it was un- equal; at the will of the courts. Sometimes all was settled upon the widow; sometimes the whole was settled on the administrator, or some relation who was ordered to support the children and pay them certain portions. When general rules were established, they were nearly like the English rules for distributing personal estate, except that the eldest son had a double share. 1 Hutch. 394. The English law of descent seems never to have been followed. The widow seems to have been entitled to dower as a matter of right, and it was not unusual to allow her something more. 1 Hutch. 394. As to estates-tail, the English law was adopted without any altera- tion. EXTRACTS 505 From Manuscript Treatise on Probate Law. for the determination of all causes civil and criminal. The next clause declares that the governor, with the council or assistants, may do, execute, and perform all that is necessary for the probate of wills, and granting administrations touching any interests or estates which any person shall have within the province. Previous to the grant of this charter (in 1686) it appears that a probate court was holden at Boston by the president of New England ; and in the other provinces which then composed New England, and in the remote counties of Massa- chusetts, the court was holden by a judge and clerk appointed by the president. No act of the legislature of Massachusetts, or of this State, creating the office of judge or register of probate, before the late Revolution, appears in any records to which I have had access, and I presume none such ever existed. The Massa- chusetts act of 1692, for the settlement and distribution of the estates of intestates, is the first that makes mention of a judge of probate. It is probable that the governor and coun- cil, as supreme court of probate, appointed a judge, and dele- gated to him the powers conferred by the charter on them, reserving to themselves the supreme appellate jurisdiction. [Extent and Origin of Guardianship by Nature.] The subjects of guardianship by nature are said to be not all the children, but only the heir apparent. 2 Fonbl. 241. (A) That the father should be the guardian of a child who, on his death, will be his heir, and not of one who will inherit nothing from him but the fruits of a good education and kind instructions, seems a strange doctrine, unless we should sup- pose that this care of the common law was founded on the idea that the heir, by reason of his expectations as to property, which have a corrupting influence over young and tender minds, stood in the greatest need of a guardian. We are told by Chief Justice Holt that the reason why the father is not guardian by nature of his other children is, because they cannot inherit any thing from him. Carth. 386. This, upon general principles, is no reason at all ; and yet it 506 EXTRACTS From Manuscript Treatise on Probate Law. may be fi sound legal one. The doctrine probably originated in this way. The guardianship in' chivalry was odious. Swinburne, 212. To suffer the lord to wrest the infant from the father ; enjoy his estate, affording a bare maintenance ; selling his marriage, — was intolerable. An exception was at length admitted in the case of the father. Com. Dig. Guar- dian, C. He was considered as guardian of the person of his heir against the lord, who was guardian by tenure. By way of opposition, the father was said to be guardian by nature ; but neither the phrase nor the office was extended beyond the occasion for it. 3 G. Bacon, 404, n. Personal property was trifling ; the other children generally had none. The guardianship for nurture arose in the same way. It was the gradual encroachment of nature and humanity on the feudal system. [Testamentary Guardians.] This act [12 Charles II. c. 24] gives the father a power over his children, to be exercised by a person of his nomina- tion after his death, greater than that which he himself pos- sesses during his life. 1 Blackst. 453 ; 1 Bro. C. L. 88. (a) [Time op Majority. Custom of London.] It is a vulgar opinion that males are of full age at twenty- one, and females at eighteen. This has its origin in the custom of London, by which males are out of ward at twenty-one, and females at eighteen. Com. Dig. Guardian, g. i. 1 [Testamentary Guardians.] The English guardianship for nurture seems applicable here ; but that by nature must here embrace all the children, because (a) And yet we meet with such expressions as these : The authority of the testamentary guardian is a continuation of the paternal authority. Such a guardian is in loco patris. 2 Eq. Cas. Abr. 486. 1 In another part of the manuscript, it is said that the custom of Lon- don " certainly had some influence on our legislators and judges in early times." EXTRACTS 507 From Manuscript Treatise on Probate Law. all are equally heirs apparent. It is a matter of more diffi- culty to determine as to the testamentary guardians au- thorized by the statutes of Philip and Mary, and Charles the Second. The latter seems to have been adopted and practised upon. 1 [In a subsequent part of the treatise it is said :] The father may, by his will, appoint a guardian to his children, with all the powers and privileges of the English testamentary guar- dian. Co. Lit. 88 b, n. 14, 15. It is conceived that we have adopted the English statute of Charles the Second. 2 [Guardians of the Estate, who have not the Custody of the Person.] Notwithstanding what has been said in the preceding article, it is conceived that there may be guardians of the estate who have not the custody of the person. This will happen where the minor is out of the State ; or where there is a father or mother capable of discharging the duty of a parent, but not qualified to take care of the estate. The offices may be sepa- rated, though they seldom are so. 3 [Appointment of Guardians over Non-compos. ,] By the act of 1776, it was necessary that f he selectmen should find the insanity. By the Massachusetts act, the selectmen must find the person incapable of taking care of himself. 1 [By a reference to another part of the manuscript, it would seem that a guardian was appointed by the father, by will, in the case of N. Meserve, in 1719 or 1758; also, that in a will of the year 1708 is the clause, " I give my son to A. B.," &c] 2 So held in Cnpp v. Copp, 1850, 20 N. H. 281, and in Balch v. Smith, 1841, 12 N. II. 437. 3 In another part of the manuscript, it is said, " The judge, doubtless, may appoint a guardian of the person and another of the estate. But it is usual to commit both to the same person. Laws, 262. 263." To this passage there is the following note : "On inspecting the probate records, I find no instance of a guardian appointed for the person and another for the estate. J. S." 508 EXTRACTS From Manuscript Treatise on Probate Law. It seems by the present law, N. H. Laws, ed. 1797, 262, that the reference to the selectmen is a matter which rests in the discretion of the judge of probate ; and that he may refer it to them or not. He is not bound by their opinion either way. It is only a means of procuring information of the con- dition of the party. 1 [Proceedings as to Persons suspected of Embezzlement. N. H. Laws, ed. of 1797, 263.] With all this verbiage the simple meaning is, that the judge of probate may compel persons suspected of embezzling the property of a non compos^ under certain circumstances, to answer interrogatories which may be used in a suit at common law, but which cannot be made the foundation of any further proceeding in the probate court. 2 [Whether Real Estate may be sold to support a CniLD under Seven Years of Age.] The estate of an intestate being subject to the support of each child under seven years of age (N. H. Laws, ed. 1797, 245), the personal should be first applied, then the income of the real, and, in defect of these, the real may be decreed to be sold for this purpose, though there is no express provision on the subject, (a) (a) The act subjects the estate to this burden. There must be some way of making it liable; none so effectual as that of allowing the judge of i i n // v . 5 , 1827, 4 N. H. 60, it was held that, under the later statute of July 2, 1822, the judge of probate could not appoint a guardian over a non compos, unless the selectmen made return of the fact of insanity. In the argument of counsel, 4 N. H. 63, will be found extracts from the statutes of 1776, 1791, and 1822. The change of phraseology, in the statute of 1791, from that of 1776, is very marked, and may, perhaps, jus- tify the author's opinion that, under the statute of 1791, the judge is not bound by the opinion of the inquisitors " either way." The present statute on this subject, Gen. Laws, c. 186, §§ 1 and 2, being a substantial re-enactment of the statute of 1822, must, of course, receive the same construction that was given to that statute in // v. S . 2 See Wood v. Weld, reported ante, 367. EXTRACTS 509 From Manuscript Treatise on Probate Law. The judge may doubtless consider the personal estate as first applied to this object, and order the sale of the real to pay debts. This marshalling of the assets, first applying the per- sonal estate to payment of charges, secondly, maintenance of children under seven (or reversing this order), will bring the sale of real estate for payment of debts within the letter of the law. [License to sell Real Estate, when Granted, when Denied. Liability of Administrator.] Where it becomes necessary, in the course of a just and faithful administration, to sell real estate, the executor or administrator may not only apply for license, and the judge grant it, but his not applying is neglect of duty, for which he will be answerable to the injured party de bonis propriis. This was determined in Brattle v. Willard, U. S. Circuit Court, New Hampshire, May Term, 1798 [reported, ante, in connec- tion with New Hampshire Strafford Bank v. Mellen\. Where the executor or administrator shall have wasted the proper fund for the payment of debts and legacies, and applies for license to sell real estate for these purposes, it is conceived that the judge may, and ought, to refuse license, (a) 1 The effect of this refusal will be that the executor or administrator will be answerable de bonis propriis. And it will always be in the power of the judge to ascertain the waste by directing a settlement of the administration account, and refusing to grant license till such settlement is made. The necessity of selling can in no case be accurately, and with certainty, ascer- tained, till the administration account is settled. probate to order it to be sold, and the administrator to appropriate the proceeds to this object. [In another passage, the author said : " There can be no doubt but that the maintenance of children under seven is a charge on the real estate as well as the personal . . . there does not seem to be any express au- thority given to the judge to authorize a sale for this object, though it has always been done when necessary."] (a) See Ex parte Allen, Petitioner, 15 Mass. 58. 1 Tilton v. Tilton, 1860, 41 N. H. 479. 510 EXTRACTS From Manuscript Treatise on Probate Law. But where the fund was originally insufficient, or has be- come so without any fault of the representative, the judge may grant license to sell real estate set off to an heir, specifi- cally devised, &c. But the sale ought to be so managed and ordered, and the proceeds so appropriated, that the burden shall be borne by those who ought to bear it. License granted to sell when there is no necessity for it, or to sell that which ought not to be sold, will not excuse the executor or administrator from being answerable for mal- administration ; but the title will be good to the purchaser. [Sale of Real Estate under License from Probatb Court Valid although there was in fact no necessity for a sale.] It is very clear that selling to pay debts when there are no debts, or selling real estate when the personal is sufficient, or selling that specifically devised, and which ought not to be sold, will not vitiate the sale. 1 1 If the petition for license contained the proper averments, the decree granting leave to sell cannot be collaterally impeached, nor the title of the purchaser devested, by proof that there were no debts, or that the assets were sufficient. Hall v. Woodman, 1870, 49 N. H. 295, 304 ; Gordon v. Gordon, 1875, 55 N. H. 399, and cases cited. Also, Atkins v. Kinnan, 1838, 20 Wend. 241 ; Graham v. Linden, 1872, 50 N. Y. 547, 550 ; Sheldon v. Bush, 1803, 1 Day, 170; McCown's Ex'rs v. Foster, 1870, 33 Tex. 241 (but see Withers v. Patterson, 1864, 27 Tex. 49) ; Wolf v. Robinson, 1855, 20 Mo. 459; Grayson v. Weddle, 1870, 03 Mo. 523, 530; Stow v. Kimball, 1802, 28 111. 93; Iverson v. Loberg, 1801, 26 111. 179; Moore v. Neil, 1866, 39 111. 256; Myer v. McDougal, 1868, 47 111. 278; Breese, J., in Hobson v. Ewan, 1871, 62 111. 146, 154, 155 (and see Sheldon, J., in Bowen v. Bond, 1875, 80 111. 351, 358-360); Boyd v. Blankman, 1865, 29 Cal. 19, 41- 43; Field, C. J., in Spriggs's Estate, 1862, 20 Cal. 121, 124, 125; WyaWs Adm'r v. Steele, 1855, 26 Ala. 639; Doe v. Roe, 1860, 30 Ga. 961; and see McJJade v. Burch, 1849, 7 Ga. 559 ; Ilsley, J., in Sizemore v. Wedge, 1868, 20 La. Ann. 124, 125; Redfikld, C. J., in Doolittle v. Ilolton, 1856,28 Vt. 819, 823; Freeman on Void Judicial Sales, § 14. Contra, in Massachusetts. Heath v. Wells, 1827, 5 Pick. 140; Thompson v. Brown, 1819, 16 Mass. 172 (but see criticism ineditor's note, p. 181); Tarbell v. Parker, 1871, 106 Mass. 317 ; Wells, J., in Aiken v. Morse, 1870, 104 Mass. 277, 280. But parties interested in, or affected by, a sale under a void license may now apply to a court of equity, where the sale may be coufirmed or set aside, in whole or in part. Mass. Stat, of 1873, EXTRACTS 511 From Manuscript Treatise on Probate Law. [Whether an " Executor Plaintiff," who fails in his Suit, is Liable for Costs.] I. English Law. Executor plaintiff, where he must sue as executor, that is, on contracts made with the deceased, or for goods taken away in his lifetime, shall pay no costs. But if the executor or administrator sue in his representa- tive character, when he might sue in his private capacity, — for example, for goods taken from his possession actual or con- structive, — he shall receive and pay costs as other persons. It is held that an executor or administrator is liable to pay the costs of a non pros., though not of a nonsuit. The reason for the distinction is, that the former arises from a fault in the representative, the latter from ignorance of the state of the demand. II. Our Law on the Subject. . . . The English law on this subject, it is conceived, has never been admitted here. The reasons upon which it is founded are by no means satisfactory. The executor and administrator are mere trustees for the creditors, heirs, and legatees. It is they who pay the costs, anti they are bound, like others, to know their rights. When they prosecute unjust claims, the defendant is vexed and put to costs. Why should not he be indemnified? Costs are not c. 253, § 3. See Ames, J., in Ckapin v. Waters, 1872, 110 Mass. 195, 198. The purchaser's title has been held invalid where the petition for license to sell was detective on its face, not containing tbe averments necessary to give jurisdiction: Haynes v. Meeks, 1862, 20 Cal. 288 ; where the peti- tion did not aver any debts of the testator : Torrance v. Torrance, 1866, 53 Pa. St. 505; where no valid ground was stated in the petition or decree : Wilson v. Armstrong, 1868, 42 Ala. 168 (compare, however, Doe v. Roe, 1S6U, 30 Ga. 961) ; where it appeared from the records of the probate court that there were no debts, and that the sale was made to pay costs of administration: Farrarv. Dean, 1856, 21 Mo. 16; where there was noth- ing on record to show proper findings of fact: Clapp v. Beardsley, 1826, 1 Aik. 168; where the petition for license was not within the time limited by statute for making such request : Slocum v. English, 1875, 62 N. Y. 494. 512 EXTRACTS From Manuscript Treatise on Probate Law. now considered as a punishment, but as a compensation for a civil injury ; and the injury is not the less, in a civil view, because it is done by a trustee, or because the real party is ignorant. Idiots are compelled to redress civil injuries. Where an executor or administrator of an insolvent estate is sued, and judgment de bonis testatoris vet intestati, it is con- ceived the remedy is the same for the costs as for the debt. Where he is plaintiff, he ought to pay costs. The estate may be so circumstanced that the defendant may have no remedy. 1 [Extracts from Probate Records. As to Seals on Wills.] Formalities of wills of real estate. Sealing — generally sealed. In a few instances the mark O of seal, instead of on e, — 1723, 1728, 1745, 1750, 1760, 1764, 1771, and two instances of this in 1752, 1766. In the decree of probate, this is called sealing. Instances of wills proved not being sealed may be found in files of the years 1660, 1667, 1686, 1718, 1719, 1723, 1725, 1757, 1759. [Extracts from Probate Records. Origin of the Office of Judge of Probate. Early Forms.] Previous to 1680, the county courts discharged the duties now performed by the judge of probate. They granted letters of administration ; took security by way of recognizance to 1 Where the cause of action is alleged to have accrued after the death of the intestate, and the administrator might sue in his own right, judg- ment for costs may be entered against him de bonis propriis. Moulton v. Wendell, 1858, 37 N. H. 406; Keniston v. Little, 1855, 30 N. H. 318. But where the administrator sues for a cause of action purporting to have arisen in the lifetime of the intestate, a judgment for the defendant is to be entered against the goods and estate of the intestate. Pillsbury v. Hubbard, 1839, 10 N. H. 224. And upon scire facias, brought after a return of nulla bona, an execution de bonis propriis will not be awarded against the administrator, if he commenced the suit in good faith, with a reasonable expectation of recovering, although, at the time of suit brought, he had administered all the estate, and settled his account, and had no balance in his hands to be distributed. Folsom v. Blaisdell, 1859, 38 N. H. 100. EXTRACTS 513 From Manuscript Treatise on Probate Law. the county treasurer ; approved and allowed wills ; received inventories, and settled estates. [Records of] 1654, 1656, 1660, 1661, 1667, 1674. For the convenience of the people there were commission- ers, consisting, it is apprehended, of three persons, clothed (to adopt the language of the day) with magistratical powers for the county. The clerk of the county court was generally one. They granted power of administration, warrants of appraisement ; swore witnesses to wills ; and made return of their doings to the county court, where they were confirmed or disallowed. 1660, 1662', 1669, 1674, 1675, 1677. Mention is made, in the records of the day, of the court of associates, as having powers of probate concurrent with the county court. 1660, 1669, 1670. Between 1680 and 1694, there does not appear to have been any regular, settled course of proceeding. Probate powers were generally, during that period, per- formed by the supreme executive magistrate, whether lieu- tenant-governor, or president of the council ; sometimes by two of the council ; oaths and security sometimes taken be- fore a councillor or justice of the peace, &c. Ed. Cranfield, lieutenant-governor and commander-in-chief, exercised these powers in 1681, 1682, 1683. 1685, Walter Barefoot, deputy governor. In 1686, two wills appear, witnesses sworn before Rd. Wal- dron, attested by Elias Stileman, cler. In 1687, 1688, the court of pleas acted as judge of probate. In 1688, 1689, 1690, 1691, 1692, Jno. Hinckes, president of the council, sometimes styled president and commander-in- chief in and over the province of New Hampshire in New England, discharged the duties of judge of probate. Oct. 8, 1691, the witnesses to a will were sworn before two of the council, attested by John Pickering, recorder. In 1692, a letter of administration appears under the province seal ; the recognizance, for faithful administration, attested by Tho. Davis, secretary. In 1693, mention is made of the office for the probate of wills and granting administrations. 33 514 EXTRACTS From Manuscript Treatise on Probate Law. In 1693, probate proceedings were by lieutenant-governor Usher, under the province seal, attested by the secretary. In 1694, the offices of judge and register of probate appear to have been established. Judges. Registers. 1694. Thomas Packer, (a) William Redford. (b) 1697. Nath'l Fryer. Francis Tucker, (b) 1700. Lt.-Gov. Partridge, (c) Charles Story. (6) 1703. Joseph Smith. 1709. Richard Waldrox. IT-'}' i. Be.vj. Gamblik. [?] 1715. Richard Gerrish. 1737. Richard Waldrox. 1718. Benj. Gamhi.ix. [?] 1742. Andrew Wiggix. 1780. Johx Penhallow. 1756. Richard Wibird. 1735. William Parker. 1765. Johx Wentworth. 1773. Nov. John Sherburne. 1776. Feb. 28. Phillips White. 1776. Feb. William Parker, Jr. In 1737, Ephraim Dennet was appointed special judge of probate of wills, and granting letters of administration, &c, for settling the estates of John and Sam. Penhallow. Before 1680, security was taken from administrators, &c., to the county treasurer, by way of recognizance ; ((f) between 1680 and 1694, it was taken to the king ; to return an in- ventory where not already done, and to administer according to law. These were the only conditions mentioned. Some such recognizances appear in 1694. But the practice was soon adopted of taking bonds to the judge of probate, with similar conditions. (a) In November, 1794 [1694], Packer is styled Ordinary of the Province of New Hampshire; and in 1717, in one instance, the probate court is styled the Prerogative Court of New Hampshire. (b) W. Redford is sometimes stjled D. Secretary; Tucker and Story, Secretaries. (c) Partridge is sometimes styled Lt. Gov., sometimes Judge of Probate, sometimes both. (