THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ft 3 ^ * » ^ i PRACTICAL FORMS IN ACTIONS, PERSONAL AND REAL, AXD IN CHANCERY, iNOW Ix\ COMMON USE IN THE STATE OF OHIO COMPRISING Process 5 Declarations ; Pleas ; Replications ; Demurrers ; Verdicts ; Judgments (Complete Record ; Scire FACIAS5 Attachmentj Ejectmentj Occupying Claimants Arbitration 5 Bill of Particulars 3 Bills of Exception; Error; Certiorari Appeal; Depositions in State Courts and in Courts of the United States Redemption from Tax Sales ; Clerk's Entries ; Executions ; Partition • Habeas Corpus; Oaths; Dower; Select Writs; Appointsient of Clerks; Admission OF Attorneys and Solicitors; and Tarious other Proceedings at Law: Bills in Chancery ; Injunctions ; Subpcena and Notice ; Demurrers ; Pleas ; Answers ; Hearing and Re-hearing 3 Masters and Receivers; Bills of Review ; Orders • Decrees, &c., WITH NOTES. It is dangerous to alter old established Forms; 2 Ec. Ca, Abg. 764. SECOND EPITION. BY P. B. WILCOX, Attorney at Law. COLUMBUS: published by ISAAC N. WHITING 1848. Entered according to Act of Congress, in the year eighteen luindrcd and forty-eight, By Isaac N. Whitino, la the Clerk's Office of t!-.c District Court of the United States, for the District of Ohio. Printed bv Thrall & Reed. 4 s ADVERTISEMENT TO THE SECOND EDITION To the first Edition which has been carefully revised so many other Forms are now added that this may be re- garded as almost a new Work. Authorities are adduced in all cases except in new Forms upon peculiar Statutory remedies which of course can rest on no authority but their own. Copious Notes will be found at the foot of the page prepared mostly from materials that the author has been collecting together for some years and relating chiefly to matters of Practice — • Especially to the more important questions in Chancery Practice that have not yet been set- tled in the Courts of Ohio. September 26 1818. i^ii057. OF COURTS AND THEIR JURISDICTION IN CIVIL CASES. By the first Section of the third Article of the Constitution, the judicial power of the State of Ohio, both as to matters of Law and Equity, is vested in a Supreme Court, in Courts of Common Pleas, in Justices of tlie Peace, and in such other Courts as the Legislature may from time to time establish. L Justices of the Peace.' The jurisdiction of Justices of the Peace, in civil cases, is in gen- eral limited to the townships in which they are elected and reside, and under certain restrictions and limitations, they have cognizance of all cases where the matter in dispute does not exceed one hundred (a) A Justice of the Peace has power, within his Countj', to admui- ister oaths ; to take the acknoAvledg- ment of deeds ; to issue subpoenas for witnesses in cases depending be- fore him ; to issue process of attach- ment against absent or absconding debtors ; to proceed against consta- bles for failing to pay over money collected on execution ; and to pre- side instead of a Judge of the Court of Common Pleas on the trial of a contested election of a Justice of the Peace; Swan's Stat., 506, 417, 522, 531, 525. Under the Act of 1831, an Action on the case for a nuisance may be maintained before a Justice of the Peace ; Mueller v. Flowers, 7 Ohio Rep. 230, Part 2d. See Nick- ol v. Patterson, 4 Ohio Rep. 200 ; 15 Ohio Rep. 483. A corporation may be sued before a Justice of the peace ; Harding v. The Trustees of Neiv Haven Toivn- ship,S Ohio Rep. 227. Proceedings of Justices of the Peace are treated with great liberality and indulgence. Jd. A Justice's Court, in Pennsylva- nia, is not a Court of record with- in the meaning of the Constitution and Laws of the U. States ; Silver Lake Bank v. Harding, 5 Ohio Rep. 546. See 13 Ohio Rep. 209 ; 2 Blackf. 85. Yet, " full faith and credit," are to be given to the judgpaents of such a Court; and nil debet is a good plea. Jd. It seems, that Debt or Assumpsit may be sustained on such judgments, and that 7iil debet as well as nultiel record, is a good plea. Id. COURTS AND THEIR JURISDICTION. Courts of Common Pleas. dollars. The jurisdiction of a Justice extends to actions of trespass on real estate, in cases where the damages demanded do not exceed the sum of one hundred dollars, but they have no jurisdiction in actions of assault, and assault and battery ; or for malicious prosecu- tion ; or against Justices of the Peace, or other officers, for miscon- duct in office, except in certain specified cases ; or in actions of ejectment, ; or for slander, verbal or written ; or in actions on contracts for real estate; or in actions in which the title to lands and tenements may be drawn in question ; Swan's Stat., 506. An appeal lies to the Court of Common Pleas from all judgments of Justices of the Peace, but an action originally commenced before a Justice of the Peace can never come by appeal before the Supreme Court. II. Courts of Common Pleas. The State is divided into a convenient number of Circuits ; in each of which there is a Presiding Judge, who is assisted by not more than three, nor less than two Associate Judges, in each of the several counties composing such Circuit. The Associate Judges are appointed for each County ; and the President and Associate Judges, any three of whom constitute a quorum, compose the Court of Common Pleas. The Justice's own Certificate, it The Appellant is entitled to a Tran- seems, is not alone a good authenti- script without paying the costs of cation; the Certificate of the Clerk suit; Leffingivcll v. Flint, 1 Ohio of the County, and the seal of the Rep. 274. Court is usually required. Id. A Justice of the Peace is hable to The doings of a Justice of the an action for refusing a Transcript. Peace are viewed with a favorable Id. eye in the higher Courts, and eve- Justices of the Peace have no ju- ry reasonable intendment is made risdiction over real contracts, where to sustain them ; Austin v. Iluyden, the title to land is drawn in contro- C Ohio Rep. 3S8. versy; but this rule docs not extend If the action before a Justice is sta- to contracts for clearing land, repair- ted on his docket to be Case, the plain- ing buildings, paying rent, &c. ; tiff may declare in Trespass, in the Bridgmansv. Wells, 13 Ohio Rep. Common Pleas. /(/. S. P. Barker 43. V. Cory, 15 Ohio Rep. 9. The acts of a Justice of the Peace The original process issued by a who has not duly quahfied may not Justice cannot be made a part of the be absolutely void ; Avhen, and how record^, by oyer.on appeal to the Com- far, those who act under warrants, mon 1 leas. Id. &,c., from such Justices may justify A Justice of the Peace has juris- themselves ; See 5 Eng. Com. Law diction by scire facias over a consta- Rep. 278. Not liable for mistakes ble for rnakmg a false return on mesne when there is no intent to deceive ; process; Powell v. Jones, 12 Ohio 10 Wend. 545. Rep. 35. COURTS AND THEIR JURISDICTION. Courts of Common Pleas. This Court has original jurisdiction in all civil cases, both in Law and Equity, where the matter in dispute exceeds the jurisdiction of Justi- ces of the Peace ; and appellate jurisdiction from the decisions of Justices of the Peace. The Court of Common Pleas, also, in most cases, has concurrent jurisdiction with Justices of the Peace ; but unless the plaintiff obtain judgment for one hundred dollars or more, exclusive of costs, he can in general, recover no costs. This court also exercises exclusive jurisdiction in all probate and testamentary matters, granting administration and the appointment of guardians ; and is vested with the same power as the Supreme Court, to issue remedial and other process, except only writs of Error and Man- damus. There are generally three terms of the Court in each Coun- ty, annually. These terms are not permanently established, as in England, but are fixed annually by the Legislature. Special sessions may be held for the purpose of appointing administrators and guar- dians.'' Rules fixing the time for pleading, and other discretionary matters of practice, are adopted in each Circuit. These rules vary in differ- ent Circuits, and sometimes in different Counties of the same Circuit. Formerly, an Appeal might be taken to the Supreme Court from all judgments of the Court of Common Pleas, where the action was orig- (a) Besides the matters above enu- merated, this Court has exclusive ju- risdiction over all crimes and misde- meanors, the punishment whereof is not capital ; and original, and con- current jurisdiction with the Supreme Court, over all crimes the punish- ment whereof is capital. It also re- views the proceedings of Justices of the Peace, upon Appeal, and Certio- rari; and it takes cognizance of Partition ; Dower ; Applications touching Roads and Highways ; Applications to redeem lands sold for Taxes ; Applications in behalf of Insolvent Debtors ; For Licenses to Tavern Keepers, Auctioneers, Ferrymen and Ped- dlers ; For Licenses to Clergymen to solem- nize marriage; For Divorce; For the removal of County Survey- ors from office, for misfeasance ; For the Appointment of Guardians for Idiots and Lunatics; For the Appointment of Commis- sioners of Insolvents ; Commissioners of new County seats ; Inspectors ; Examiners of School Teachers ; Wreck Masters ; Contested elections of Sheriff, and other County officers ; Changing names of persons and towns, &c. The Judges of the Common Pleas are not disqualified by interest to try a case Avhere the County Commis- sioners are a party, and money is the subject of controversy ; Commission- ers of Clermont County v. Lytic, 3 Ohio Rep. 289. The Associate Judges of the Court of Common Pleas may take the pro- bate of a Will at another place in the County than the County seat ; LeGranges' Lessee vJFard,ll Ohio Rep. 357. COURTS AND THEIR JURISDICTION. Superior Courts. Supreme Court. inally commenced in the Court of Common Pleas, but since the Act of 1845 such judgments can only be reached on Error. III. Superior Courts. This Court consists of a single Judge, and its jurisdiction is con- current with the Court of Common Pleas, in all civil cases, at Common Law and in Chancery, where the Court of Common Pleas has original jurisdiction. IV. Supreme Court. This Court consists of four Judges, any two of whom constitute a quorum. It has concurrent jurisdiction with the Court of Common Pleas, in all civil cases, both at Law and in Equity, where the matter in dispute exceeds one thousand dollars; (and appellate jurisdiction from the Court of Common Pleas, in all civil cases, in which that Court has original jurisdiction.) This Court may issue writs of Habeas Corpus cum causa, Certiorari, Mandamus, Prohibition, Procedendo, Error, Supersedeas, Ne exeat, and all other writs not specially provided for by Statute, which may be necessary to enforce the due administration of right and justice through the State, and for the exercise of its jurisdiction, agreeably to the usages and principles of law. Writs of Error, Supersedeas, Certiorari, hijunc- tion, Ne exeat, and Habeas Corpus for the purpose of an inquiry into the cause of commitment, may also be granted, in vacation, on good cause shown, by any Judge of this court. The Supreme Court is required by the Constitution to be held once a year in each County ; and tiie terms arc regulated annually by Statute.-' The Supreme Court has exclusive jurisdiction in cases of Informa- tion in the nature of a Qwo Warranto, and concurrent jurisdiction with the Court of Common Pleas in cases of Divorce. By the Act of 1845, (vol. 43, p. 80) apj)ellate jurisdiction in cases at Law, is taken away from the Supreme Court ; if not concurrent also. _ (a) The Supreme Court, while Common Pleas, to take proof of a will, sitting in one county, is uccustonied the matter cannot be certified up to to exercise certain functions opera- the Supreme Court ; In the matter ting in another county: such as or- of Hunter's will, Ohio Rep. 499. dering a struck jury — filling vacan- Where a cause is certified to the cies in the ofhcc of Clerk and Master Supreme Court, on account of inter- Commissioner — receiving motions est in the Judges of the Court of for a Mandamus — changing venue, Common Pleas, the Certificate must &c ; Seeley v. Blair, Ohio Rep. show how they are interested ; 448. Knaggs v. Conant, 2 Ohio Rep. 20. Where there is not a quorum of For Rules of Practice in the Su- disinterested Judges of the Court of premc Court, Sec Appendix No. 1. COURTS AND THEIR JURISDICTION. Court in Bank. V. Court in Bank. This Court is composed of the four Judges of the Supreme Court, any three of whom constitute a quorum, and is held annually, at the seat of government, for the final adjudication of all such questions of law as may be reserved by the Supreme Court on the Circuit. The Court in Bank does not exercise original jurisdiction, but where any important question arises on the Circuit, in any proceeding at law or in equity, such question may be reserved, by the Judges holding the Court upon the Circuit, for final decision in Bank. If the Judges upon the Circuit are divided in opinion upon any question, such question, on motion of either party, may also be reserved for decision in Bank. Judgments of the Supreme Court may also be reviewed in Bank on Error. The Court in Bank is not regarded as a new Court, but as a kind of special session of the Supreme Court, and its decisions are accordingly considered as made in the respective Counties from which the cases may have been reserved. It was first organized in 1823, and its decisions are annually reported.* (a) This Court will not hear a case on an agreed statement of facts where there is no process and no pleadings ; Mason v. Embree,b Ohio Rep. 277. It is the general practice of the Court in Bank, not to receive ori- ginal motions, but determine only such questions as are reserved in the County ; Gazzam v. Cin. Jns. Co., (j Ohio Rep. 71 ; S. F. Taylor v. Mexander, 6 Ohio Rep. 144; Buck- ley'' s Lessee v. Osbiirn, 8 Ohio Rep. IbO. Way V. Hillier, 1 6 Ohio Rep. 105. Nor can new points be taken in Bank, on motions reserved ; Rem- ington V. Harrington, 8 Ohio Rep. 5()7 ; Lewis v. The Bank of Ken- tucky, 12 Ohio Rep. 132. Precedents are not of such bind- ing authority that they may not be overruled, but they are naturally of very great weight : It is as necessary that there should be a law to restrain the Court, as that there should be rules to restrain the conduct of indi- viduals, and Precedents constitute that law ; Grimke, J. ; Willyard v. Hamilton, 7 Ohio Rep. Ill, Part 2d. Where it appeared that a naked trustee of the legal title, was prose- cuting an ejectment against con- science, the Court in Bank ordered the case to be remanded to the Coun- ty, that the cestui que trusts might apply to Equity for relief; Avery'' s Lessee v. Dufrees, 9 Ohio Rep. 145. Where a question intended to be reserved for the Court in Bank is omitted to be entered on the Journals in the County, the Court in Bank will order the case to be stricken from its docket, or remanded to the County, that the entry may there be corrected ; Portsmouth Turn. Co. V. Byington, 12 Ohio Rep. 114. Where a case on Error to the Court of Common Pleas is reserved for decision in Bank, and it appears, on inspecting the record, that no final judgment has been rendered in the Court of Common Pleas, a mo- tion may be made in Bank to strike the case from the docket ; Kelley v. Hunter, 12 Ohio Rep. 216. See Rules of Practice, Appendix No. 1. COURTS AND THEIR JURISDICTION. Clerks of Court. Clerks of Court.* Every Court has power to appoint its own Clerk for the term of seven years ; but for any other than a j^ro tern, appointment, the apphcant is required to j)roduce a Certificate from a majority of the Judges of the Supreme Court, that he is well quahfied to execute the duties of the office of Clerk to any Court of the same dignity with that for which he offers himself; Const. Art. Ill, § 9. A Clerk is removable, at any time, for breach of good behavior ; Id. Clerks of the Supreme Court, and Courts of Common Pleas, may each appoint a Deputy, to be ai)proved by their respective Courts ; iSivan's St. 234, *§» 1. (a) The appointment of a Clerk of the Court of Common Pleas must be the act of the Court, made in open Court, and entered on the Minutes ; an annunciation from the Court, in session, that such an one is appoint- ed Clerk, vests no such right as will preclude the Court from afterwards refusing to have the appointment entered on the Minutes ; and even if such entry were made, the Court arc not bound by it, but on reading the journal, and before the Minutes are signed, the Court may rescind the entry. The State of Ohio v. T7ie Judges of Hamilton Common Fleas, 1 Ohio Reports, 134, Part 1st. A Certificate, signed by three of the Judges of the Court of Common Pleas, as follows : " We agree to the appointment of Samuel Goodwin to the office of Clerk of the Court of Common Pleas of I-Iamilton county," and dehvered to the nominee in open Court, is neither an appointment, nor the evidence thereof; but is the more personal act of the individuals who sign it ; Id. For proceedings in the removal of a Clerk, See 1 ./. ./. Marsh. 108 ; 3 Lilt. 309 ; 1 Dana, 595 ; Swan's Stat. 403, p. 39. The new Judges in Kentucky had not power to do it ; 1 J. J. Marsh. 208 ; 3 do. 299. Form of Judges'' Certificate. These certify that, having exam- ined J. S., &c. in that behalf, we . judge him to be well qualified to ex- ecute the duties of the office of Clerk to any Court of Common Pleas [or any Court of the same dignity with that for which the ap- plicant offers himself] in the State of Ohio. \_Signcd by three Supreme Judges.'] Order of .Appointment. This day, J. S., an apphcant for the Clerkship of this Court, now va- cant, produced to the Court a Certifi- cate from A. B., C. D. and E. F., three Judges of the Supreme Court of this State, showing that he is well qualified to execute the duties of the office of Clerk to any Court in the Slate of Ohio of the same dignity with this Court; whereupon It is ORDERED that the said J. S. be and he hereby is appointed Clerk of this Court, for the constitutional term of seven years ; and thereupon the said J. S. appeared in open Court, and having taken the oath of office, gave bonds to the State of Ohio, ap- proved by the Court, in the sum of ten thousand dollars, Avith T. D, and T. O., his sureties, conditioned ac- cording to Law. For the Clerk's oath, See Oaths. COURTS AND THEIR JURISDICTION. Attorneys and Solicitors. Attorneys and Solicitors. =^ Attorneys and Counsellors at Law, and Solicitors in Chancery, are admitted to the Bar, on Examination, by any two Judges of the Su- preme Court. An Applicant for examination, besides showing him- self to be a citizen of the United States, and an actual resident of this State for one year previous to his application, is required to pro- duce a Certificate from some Attorney or Counsellor at law, setting (a) An Attorney may be attached for money collected by him; 18 Eng. Com. Law Rep. 251 ; See 5 Paige, 311; Swan's Stat. 97, p. 6; Ohio Stat. Vol. 44, p. 7. At the old Com- mon Law, Attorneys were allowed to individuals, by patent or writ, on payment of certain fees ; 2 Reeves' Com. Law. 169. In tern. Ed. I. it was considered that "seven score" Lawyers were sufficient for England ; Id. 284. For his authority over a suit, judgment, &c., See 9 Paige, 496; 5 Pet. 113; 5 Dana, 13; 2 J. J. Marsh, 184; 7 Eng. Cond. Ch. Rep. 231. When liable for slander, &c., 32, Wend. 410. When liable for neghgence ; 4 Pet. 183. Not hable for mistakes where there is a reason- able doubt; 2 Blackf. 23. His gen- eral powers ably discussed ; 4 Conn. Rep. 517. Cannot release sureties in a bond; 3 J. J. Marsh, .532. Nor enter a retraxit; 2 Blackf. 137. May refer a suit to arbitrators ; 4 Monroe, 377; 1 Dallas, 164; 7Cranch.449. When he may buy in property ; 4 Eng. Cond. Eq. Rep. 548. The Court may call on an Attorney to show his authority, if there is rea- sonable ground to believe he is car- rying on a prosecution without au- thority ; 6 J. J. Marsh. 495 ; 3 Mon- ro3, 189 ; 1 Litt. 238. An Attorney is entided to his Fees though the cli- ent kills himself before trial ; 7 J. J. Marsh. 54. The Court looks very narrowly into contracts between Law- yers and their clients ; 2 Dana, 228 ; See 3 Monroe, 70; 6 do, 391 ; 4 Litt. 416; 4 Dana, 173. He may be made party in Chancery when guil- ty of fraud; 14 Ves. 276; 7 Johns. Ch. 201. In 2 Mod. 181, an Officer was sent to the Fleet for arresting a Lawyer, " that he might learn to know his distance." When a Soli- citor is "committed for malpractice, or misbehavior of his known duty, after he has laid in custody some time, the Court wiU discharge him upon a petition signed by him, where- in he must beg pardon, be sorry for his contempt, and pay the costs;" 1 Harr. Ch. Pr. 326. A retainer im- phes the use of dihgence in the usu- al course of proceeding; Wright, 466. An Attorney's authority will not be questioned at the instance of a stranger ; Id. 245. Nor at all un- less he occupy a suspicious attitude before the Court; /(/. 610. His fees are not included in the term costs ; Id. 121. The husband is Jnot liable for fees on a retainer by the wife to obtain a divorce ; Id. 120. On proof of services, he is entitled to the usu- al compensation, but he cannot claim a greater amount because the debt was a desperate one; Id. 485. If he receives property in satisfaction of a judgment, and disposes of it, ren- dering no account of sales, he may be charged the amount he received for it, in money ; Id. 775. He can- not be compelled, nor will he be per- mitted, to testify to facts -confided to him professionally; Id. 136. If he, COURTS AND THEIR JURISDICTION. Attornejs and Solicitors. forth, that the appUcant is of good moral character, that he has reg- ularly and attentively studied the law during the period of two years previous to iiis application for admission to the Bar ; and that he be- lieves him to be a person of sufficient legal knowledge and abilities to discharge the duties of an Attorney or Counsellor at Law. Any per- son, however, actually residing in this State, who has been regular- ly admitted as an Attorney or Counsellor at law, in any Court of Rec- ord in the United States, and has been in the practice of law in some one of the United States, for two years previous to his application, may be admitted to an examination, at any time, on producing a certificate from some practicing Attorney or Counsellor at Law, set- by stipulation, is to receive a part of the amount recovered, he is not a competent witness for his client ; Id. 343. An attorney improperly suing out process, may be ordered to pay the costs of it ; Id. 737. If through inadvertence he makes himself secu- rity for costs, against a rule of Court, other security may be substituted ; Id. 738. An agreement by an Attorney at Law, to prosecute suits, and to re- ceive for his compensation part of the property recovered, with a stipu- lation, that no compromise shah be made without his assent, is against public policy and void ; Key v. Vat- ticr, 1 Ohio Rep. 132. See Lewis V. Lewis, 15 Ohio Rep. 715. The acquiescence of the Attorney of Record to a submission, and refer- ence to a Commissioner to state an account, binds the party ; Treasurer V. Norton, 1 Ohio llep. 270. If an Attorney appears, without authority, for several defendants, on whom no process has been served, and a judgment passes, the judgment, it seems, is conclusive as between the plaintiff and the defendants; but not as between the defendants on a Bill tor contribution ; Cox v. Hill, 3 Ohio Rep. Such judgment is not conclusive as between the plaintiff and the de- fendant, and it may be set aside on motion, at a subsequent term ; 3 O- hioRep. 518; See 7 do. 175, Part 2d; G Litt. 186; 5 Dana, 16; 3 Vin. Abg. 291 ; 6 Ohio Rep. 534. In ordinary cases, an Attorney at Law is not required to show his au- thority before he is permitted to ap- pear in behalf of a suitor ; Critch- field V. Porter, 3 Ohio Rep. 518 ; ^S". P. Pillshurifs Lessee v. Dugan, Ohio Rep. 117. An Attorney commits a contempt of court by executing an appeal bond contrary to the Rules of Court ; fVcdlace v. Scolcs, 6 Ohio Rep. 428. An Attorney who collects money for his chent and converts it to his own use may be suspended for mal- practice ; 7Vze State of Ohio ex rel. Kilbourn v. Hand, 9 Ohio Rep. 42. The client is entitled to the benefit of a purchase made by his Attorney, at Sheriff's sale, especially if the whole debt is not paid — But if the client neglects to assert his rights be- yond a reasonable time, Equity will not help him ; Wade v. Pettibone, 1 1 Ohio Rep. 57. S. C. 14 Ohio Rep. 557. On an Information for mal-prac- tice against an Attorney at Law, the record in an action of slander, where such Attorney was plaintiff, showing that a plea charging him with steal- ing the records of the Court, Avas found to be true by two juries, is not conclusive evidence of his guilt; nor is it sufficient to disbar him; 11 O. Rep. 430. ACTIONS. Actions. ting forth that the AppUcant is of good moral character, and has sustained the character of an able and fair practitioner ; such Appli- cant satisfying the Judges by his oath or affidavit, that he actually re- sides in this State, and intends to become a citizen thereof; Swan's Stat. 95. Attorneys and Counsellors at Law, who reside in other States or Territories where Attorneys and Counsellors at law of this State are admitted to practice, are also admitted to practice here. Id. § 5. Actions. The Actions commonly resorted to in the State of Ohio, for the redress of civil injuries, are Assumpsit, Debt, Covenant, Detinue, Case, Trover, Replevin, Tj'esj)ass vi et armis, Scire facias, and Ejectment. These remedies are coeval with the first attempts to ad- minister justice in our State ; and by a kind of common consent, they seem to have been tacitly adopted from the Common Law of England, as being the best known methods of appeahng to Public Authority for the redress of private wrongs. By an Act of the Ter- ritorial Legislature, passed in 1795, and by a like Act of the State Legislature, passed in 1805, the Common Law of England, and all statutes of the British Parliament, of a general nature, prior to the fourth year of James L were declared to be the law of this State. These statutes may be considered as an express recognition of the common law Actions ; but it is well known that the same Actions Fonn of Cerfifcate. Certifcate of an Attorney from an- other State. To the Honorable, the Judges of the This certifies that J. S., Esq., late Supreme Court of the State of of &c., is of good moral character, ^^^° • and has sustained the character of an This certifies that Mr. I, S., an able and fair practitioner in the Courts Applicant for admission to the Bar, of during a period of two is of good moral character ; that he years, has regularly and attentively studied the law during the period of two I" addition to this Certificate, the years ; and that I believe him to be Applicant is required to show that of sufficient legal knowledge and ^e has been regularly admitted as an abilities to discharge the duties of an Attorney or Counsellor at Law, in Attorney or Counsellor at Law. some Court of Record in the United States ; that he has been in the prac- T, .^ . , tice of law in some one of the Uni- By certificate, or m some other ted States, for a period of two years ; T^' i . ,^PP^^^^"^. ^^ required to and by affidavit or oath, that he actu- show that he IS a citizen of the Um- ^Uy resides in the State, and intends ted States, and an actual resident of to become a citizen thereof, tiie State for one year previous to his For Order of Admission, &c., See 2 10 MESNE PROCESS. Mesne Process. were universally resorted to, as well before these statutes were enac- ted, as after their repeal in 1806. However they may have been in- troduced, they have now become, by long usage and indirect legisla- tion, a part of the established laws of the land. Many of them have been modified by statute, and some peculiar statutory remedies have been introduced ; but, in general, the great leading principles of the Common Law of England, in relation to the redress of private inju- ries, by Actions at law, will be found to prevail in the State of Ohio. Actions of Account, and Annuity, are not in common use. An Ejectment lies here in all cases where a Writ of Right was an appropriate remedy at Common Law, and as our Statute of Limita- tions makes twenty-one years a bar to all actions for the recovery of the title or possession of real estate, the Writ of Right is almost or quite unknown in our Practice. In some of the United States it has lately grown more into use, for the reason that a judgment in a Writ of Right is forever conclusive on the parties, whereas a judgment in Ejectment is not. Mesne Process. Mesne process, in Ohio, is, in general, either a Summons, or a Capias ad respondendum ; and is sued out of that Court to which it is made returnable. No original writ, as known in the English prac- tice, is sued out, or supposed to be sued out, as a foundation for a Summons or a Capias ; but the Summons and Capias are them- selves original writs. The Summons is a mandatory letter from " The State of Ohio," directed to the Sheriff of the proper county, and commanding him to summon the defendant to appear in Court at a day certain, and answer the accusation against him.'^ The Sum- mons is served either personally upon the defendant, or by leaving a copy at his usual place of residence. If the defendant neglects or refuses to appear and defend the suit, the plaintiff may proceed and take judgment by default. A Capias ad respondendum issues in like manner, commanding the Sheriff to take the body of the defen- dant, if he may be found in his bailiwick, and him safely keep, so that he may have lum in Court, on the day of the return, to answer the complaint against him. Upon this writ the SheritT may take bail and discharge the defendant from close custody ; but if sufficient bail be not offered, the defendant is imprisoned. Upon the return of a Capias, that tlie defendant is 7iot found, or of a Summons that he is not served, the plaintiff may sue out an alias and pluries, until the dclendant is arrested or served ; or a testatum may issue when the defendant has removed into another county after the commencement of the suit. (a) The Constitution provides that 'The State of Ohio.'" Art. Ill, '•' the style of all Process shall be, § 12. ASSUMPSIT. 11 Prajcipe. The Commencement of a Suit. The first step in the Commencement of an Action at Law, is the fihng with the Clerk of the proper County, by the Plaintiff or his Attorney, a written Order, or Prsecipe, directing such Process to be issued against his adversary, as he may deem proper. The Praecipe specifies — the names of the parties — the kind of Action — the kind of writ, and time of its return — the amount of debt or damages, or both — and a brief statement of the cause of action to be indorsed on the back of the writ. If two or more persons are bound jointly, or jointly and severally, by bond, or writing obligatory, bill of exchange, promissory note, or other contract, and reside in different counties, the Plaintiff may file his Praecipe with the Clerk in any one of the counties, directing process to issue to the Sheriff of each County ; Sivan's Stat. 652. In Ejectment no Prsecipe is filed: The service of a copy of the declaration and notice being substituted in the place of a writ. The Clerk is not authorized to issue a Capias ad respondendum, or an Attachment, or a writ of Replevin, or a Warrant for proceed- ings against watercraft, unless the Plaintiff files the proper Affidavit as well as Prsecipe. The Form of a Pra3cipe in each kind of Action, with Affidavits when necessary, will be found under the respective Titles of, Assump- sit, Debt, &c. ASSUMPSIT, The Action of Assumpsit is, in general, commenced by suing out of the proper Court, a writ of Summons, or Capias ad responden- dum. I. Summons. The Summons is issued as a matter of course upon filing a Prae- cipe with the Clerk. 12 ASSUMPSIT. Summons. Praecipe for Summons in Assumpsit/ b A B- V. i In Assumpsit. Damages dollars. C D , ) Issue a Summons returnable forthwith [if in Term time,] or at next Term [if in vacation.] Indorse, " Suit brought on note of hand given by defH to pVlff, for dollars, dated, Sfc. Also for goods sold and delivered, money had and received, &/-€." To the Clerk of Common Pleas. Dated, &.c. J S , Att'y for pl't'fF. The like, where one of two or more defendants resides in another County. A— B— ^ V. V In Assumpsit. Damages dollars. C— D— and E— F— , ) Issue a Summons against C. D., of Franklin County, and E. F., of Ross County, returnable /or^/ii^i^/i, [if in Term time,] or, «^ next Term, [if in vacation.] Indorse, " Suit brought on a joint note of hand given by def'ts to pVt'ff,for dollars, dated, SfC. Also, for goods sold and delivered, ^c. To the Clerk of Com. Pleas. Dated, &c. J S , Att'y for Pl't'ff. (a) A Cleric is not bound to issue viduals ; Ohio Stat. vol. 44, p. 66 ; Process unless a written Praecipe be See, Pleas in .Abatement, No. 4, filed by the Plaintiff, or his Attorney ; note (a) The S)tate of Ohio v. Caffee, 6 Ohio For Joinder of parties, and Mis- Rep, 150. nomer,SEE Declarations on Promis- sory Notes, No. 1, note (a) and (b) Where the suit is by or against Picas in Abatement in Assumpsit. Administrators, Executors, Guardi- ans, and the Hke, they should be so (c) The substance of the cause described in the Pra;cipe ; See Dec- of action is to be briefly set out in larations in Assumpsit No. 1, Note the Prcecipe, and indorsed on the (a) Partners may sue, or be sued, writ, otherwise the Avrit may be in the name of the firm, without quashed on motion at the costs of designating the names of the indi- the Plaintiff. ASSUMPSIT. 13 Summons. 1^ Writ of Summons in Assumpsit. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : We command you to summon C. D./ to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith, [if in Term time,] or, on the first day of their next Term, [if in vacation,] to answer unto A. B.,'' in a plea of As- sumpsit. Damages dollars ; and have you then there this writ. Witness, F. W., Clerk of our said Court, at C — , this — day of — , A. D. — . F W— — , Clerk.^ Tlie like against one of two joint defendants residing in another County. [Seal.] The State of Ohio, To the Sheriff of Ross County, Greeting ; We command you to summon E. F. to appear before our Court of Common Pleas of the County of Franklin, at the Court House in said county, forthwith, [if in Term time,] or, on the first day of their next Term, [if in vacation,] to answer jointly with C. D., unto A. B., in a plea of Assumpsit. Damages dollars ; and have you then there this writ. Witness, F. W., Clerk of our said Court of Common Pleas of Franklin County, at C — , this — day of — , A. D. — . F W , Clerk. (a) The character in which the Neither the Writ, nor a Copy, party sues or is sued, such as Ad- can be altered or amended without ministratOTs, Executors, Guardians, resealing; 18 Eng. Com. Law Rep. and the like, is to be set out as in 95. the Prascipe. The Process of a Court having a seal can only be evidenced by its (b) Process signed by a deputy seal; A f. fa. issued from such Clerk is good ; 15 Ohio Rep. 566. Court without a seal is void; 6 Ohio A writ is not void for want of act- Rep. 1 1 . But after the lapse of ual subscription by the Clerk, if his many years a slight impression of name is written elsewhere on the the seal ^s enough; 15 Ohio Rep. writ ; 5 J. J. Marsh. 62. 735. 14 ASSUMPSIT. SummoDB. Upon the back of the writ, the Clerk indorses the cause of action and the amount appearing to he due, as the same are stated in the Precipe. If the plaintiff is a non-resident of the County, the writ must also be indorsed by some responsible freeholder of the County, as security for costs; Swan's Stat. 651, 620.^" The Sheriff is not bound to serve the writ until such security is given ; the Statute, how- ever, in this respect, is considered merely directory, and service of process without an indorsement for the costs is valid. The defend- ant, after the service and return of the writ, on motion to the Court, cither at the appearance or any subsequent Term before final Judg- ment, may take a rule upon the plaintifT to enter security for the costs within such time as the Court shall judge reasonable ; and if this rule be not complied with, the plaintiff will be non-suited ; 2 Ohio Rep. 259.'' Rule for Security for Costs. B- v. > In Assumpsit. C D ) It appearing to the Court that the plaintiff is not a resident of this County, he is hereby ruled to enter security for costs in days or become nonsuit. An indorsement of security for costs on the back of the writs, after suit brought, is no part of the record, and forms no ground for sum- mary proceedings under the Statute ; if, indeed, there be any reme- dy at all in such case ; 6 Ohio Rep. 426 ; Wright's Rep. 177. The security may be in the following form : Security for Costs under Rule of Court. Whereas, in the suit of A. B. against C. D., in the Court of Common Pleas of County, the said A. B., at the Term of (a) Theindorsementmay be thus: him to give security for costs. This / am good for costs. A. TV. Up- power is incidental to Courts of jus- on this indorsement the Statute gives tice; 1 Blackf. 147: 1 Yeates,'176. a summaiy remedy to the defendant In England, security for costs can- or other person having a right to such not be required if the party takes any costs ; See Motion, Post. steps after he knows of the non-res- idency; 2 Ves. Sen. 24; 1 Eng. (b) If the plaintiff, pending the Com. Law Rep. 234; See 3 Met- suit, removes from the County, tlic calf, 58. Court, in their discretion, may order ASSUMPSIT. 15 Summons. said Court A. D. , was ruled to enter security for costs in days or become nonsuit : Therefore, I, W. W. do hereby acknowl- edge myself bail for costs for said A. B., in the penal sum of dollars, to be levied of my goods and chattels, lands and tenements, in case the said A. B. shall fail to pay all legal costs that may be ad- judged against him in said suit. Witness, my hand and seal, this day of , A. D. W W . [Seal.] If the original Summons be returned, JVo^servetZ, or Not summon- ed, the plaintiff may sue out an alias Summons, and afterwards plu- ries Summonses, until the defendant shall be served ; Swan's Stat. 650, Alias Summons. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : We command you, as heretofore we have commanded you, to sum- mon, &c. [Conclude as in the original Summons, ante. 13.] Pluries Summons. [Seal.] The State of Ohio, To the Sheriff of — County^ Greeting : We command you, as heretofore we have commanded you, to sum- mon, &c. [Conclude as in the original Summons, ante. 13.] If the defendant remove into another County, after a Summons is sued out, bu* before service, the plaintiff may sue out a testatum Summons, directed to the Sheriff of that County, into which he may have so removed ; Swan's Stat. 650, <§> 16. Testatum Summons. [Seal.] The State of Ohio, To the Sheriff of Franklhi County, Greeting : Whereas we lately commanded our Sheriff of Hamilton County, to summon C. D. to appear before our Court of Common Pleas of 16 ASSUMPSIT. Summons. said Hamilton County, at the Court House in Cincinnati, on the day of, &c., to answer unto A. B. in a plea of Assumpsit, Damages Dollars ; and our said Sheriff of Hamilton County hath returned thereon that the said C. D. was not summoned ; upon which, on the part of said A. B., before our sard Court of Common Pleas of Hamilton County, it is sufficiently testified, that the said C. D. after the suing out of the said writ of summons, did remove into the said County of Franklin ; therefore we command you to sum- mon the said C. D. to appear before our said Cowt of Common Pleas of said Hamilton County, at the Court House in Cincinnati, on the first day of their next term, to answer unto the said A. B. in the same plea of Assumpsit, Damages Dollars ; and have you then there this writ. Witness, &c. [Conclude as in the original Summons, ante. 13.] A copy of the Summons is to be personally served by the Sheriff, upon the defendant, or left at his usual place of residence ; Swan's Stat. 649, "§> 12. When the writ is against two or more defendants, the officer serves it on all who are found in the County, and indorses their names on the writ ; and if any one or more of the defendants are not found in his County, he makes his return accordingly ; Id. 651, <§> 18.^ (a) The return may be as follows : On the day of A. D. I personally served the within named C. D. and E. F. with an at- tested copy of this writ : The within T. S. and G. H. are not to be found in my County. W. W., Sheriff of County. By A. W., his Deputy. A copy of the writ left at a store, or place other than the usual place of residence of the defendant, in his absence, is no service ; Wright's Rep. 563; See 15 Ohio Rep. 288. A Summons against an incorpora- ted religious society is served by leaving an attested copy with any one of the officers of the corporation, at least ten days before the return day ; Swan's Stat. 783, § 3. Against an incorporated town, by leaving a like copy with the record- er, or at his usual place of residence, at least four days before the return day ; Swan's Stat. 942, § 1, 943, §5. Unless the charter directs some oth- er mode of service. Id. Against a School District, by leav- ing a like copy with the district clerk; Swan's Stat. 839, § 41. Against a Turnpike Company, by leaving a hke copy, at any time be- fore the return day, with the Presi- dent, or if he cannot be found with- in the jurisdiction of the Conrt, then with any Director of the Company. Against Corporations where no mode of service is directed by Stat- ute, by leaving a like copy with the President, or Secretary, or otherchief officer. ASSUMPSIT. 17 Proceedings against Watercraft. Pr.^cipe for a Warrant. B- V. > In Assumpsit, Damages Dollars. The Canal Boat H. C.^ ) Issue a Warrant for the seizure of the Canal Boat H. C, return- able /or^Ai/^i^/t, [if in Term time,] or, at next Term, [if in vacation.] Indorse — Suit brought for damages sustained for non-performance of contract to carry 1000 Barrels of flour from C. to M. Also for goods sold and delivered, work and labor, &,c. To the Clerk of Common Pleas. T. S., Att'y for Plaintiff. Dated, &c. With the Praecipe is to be filed a Bill of particulars, verified by the affidavit of the plaintiff, his agent or attorney, or other credible person ; Swan's Stat. 209, <§> 3. Bill of Particulars and Affidavit. C. S., Master of the Canal Boat H. C. : To A. B., Dr. For damages sustained for non-performance of agreement to carry 1000 Barrels of flour from C. to M $ 450 00 For 10 Barrels of pork, at $6 per Barrel 60 00 In all $510 00 Dated, &c. The State of Ohio, County, ss. The above named A. B., makes oath and says, that the above bill of particulars is a true statement of his account against the said Ca- nal Boat H. C. ; and that the several sums of money charged therein, at least, are justly due to him. Sworn to and subscribed before me, this day of , A. D. . A. B. (a) If the Craft have no name, cription " of it in place of a name ; the Statute allows a " substantial des- Swan's Stat. 209, §3. 3 18 ASSUMPSIT. Proceedings against Watercraft. Form of Warrant against Watercraft. [Seal.] The State of Ohio, To the Sheriff of County, Greeting : We command you that without delay you make seizure of the Ca- nal Boat* H. C, if it may be found in your bailiwick, and safely de- tain it in your custody, according to the Statute in such case made and provided, to answer unto A. B. in a plea of Assumpsit, Dama- ges Dollars ; and how you shall have executed this our com- mand, make known to our Court of Common Pleas of said County of , forthwith ; or at the next Term thereof; and have you then there this writ. Witness, F. W., Clerk of our said Court of Common Pleas at C, this day of , A. D. . F. W., Clerk. On the back of the Warrant, the Clerk indorses the cause of ac- tion, and the amount sivorn to, as the same are stated in the Preecipe, and the Bill of Particulars. Sheriff's Return. Received this Warrant on the day of , A. D. , and executed it on the same day by seizing the within named Canal Boat H. C, as within commanded, and afterwards discharging the same, according to the Statute in such case made and provided, on taking bond from C. C, the Master of said Boat, with J. S. and T. S. his sureties, conditioned according to law. H. A., Sheriff of County. Dated, &.c. Proceedings by Proclamation. If at the time of suing out a Summons the defendant has a resi- dence in, or be an inhabitant of, the County in which the process is- sued, and the Summons is returned. Not found, the Court may, on motion of the plaintiff, order a Proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him. The Proclamation is to be published (a) Instead of the Jioaf, such part seized as may be necessary to satisfy of its ^^pparef or Furniture may be the claim ; Swan's Stat. 210, § 4. ASSUMPSIT. 19 Proceedings by Proclamation. three successive days of the Court, if the Court so long remain in session, at the door of the Court House, and also three times in some newspaper published in the State ; and if the defendant fail to ap- pear, pursuant to such Proclamation, the same proceedings may be had, and the same judgment given, as in other cases of default. Order of Court for a Proclamation. A B -^ V. > In Assumpsit. C D 3 This day came the said A. B., and it appearing to the Court, that the writ of Summons issued in this case was returned, at the return day thereof, by the Sheriff of this County, indorsed. Not found ; and it being shown to the satisfaction of the Court, by witnesses sworn and examined in open Court, that the said C. D., at the time of su- ing out said Summons, was an inhabitant of, or had a residence in, this County. It is, therefore, ordered by the Court, that a Proclama- ation issue, according to the Statute in such case made and provided, warning the said C. D. to appear before this Court on the day of this present month, or that judgment will be rendered against him. Form of a Proclamation. The State of Ohio, To the Sheriff of County, Greeting : Whereas, on the day of A. D. , a writ of Sum- mons was issued out of the Court of Common Pleas of said County of , at the suit of A. B., plaintiff, against CD., defendant, com- manding him, the said C. D., to appear before said Court on the day of , then next following, to answer unto the said A. B. in a plea of Assumpsit, to his damage of $ — , the cause of action in- dorsed on said w^it being a note of hand given by said defendant to said plaintiff' for $ — , dated, &fc.; And also for goods sold and delivered — money had and received, ^c. : And Whereas said writ of Summons was duly returned to our said Court of Common Pleas at the Term thereof, A. D. , by the Sheriff of said County, indorsed, Not found ; although the said C. D., at the time of suing out said Summons was an inhabit- ant of, or had a residence in, said County of :- we therefore command you that you proceed forthwith to make Proclamation at the door of the Court House in said County of , on three successive days of the present Term of this Court, warning him, the said C. D., 20 ASSUMPSIT. Capias ad Respondendum. to appear before this Court on the day of -, or that judg- ment will be rendered against him by default, according to the Stat- ute in such case made and provided ; and that you make due return of this Proclamation, with your proceedings indorsed thereon. Witness, J. B., Clerk of our said Court at , this day of A. D. . J. B., Clerk. This Proclamation is to be published three successive days at the Court House door, during the Term, and also three times in some newspaper published in the State. For the Form of a Judgment, See Judgments in Assumpsit. Capias ad Respondendum. By the Act of 1831, the plaintiti" is entitled to a Capias in all actions brought upon any covenant, bond, sealed bill, promissory note, due bill, bill of exchange, or article of agreement for the payment of any sum of money certain ; and in all actions brought on other contracts by which the sum due or damages sustained, shall appear to be uncertain, but which the plaintiff, or his agent, shall swear by affidavit, to be filed in the cause, are not less than one hundred dollars ; and also in all other cases where the Court in Term time, or any Judge thereof in vacation, shall order special bail to be given ; Ohio Stat. vol. 29, p. 59, <§> 6. And by the same Statute, the plaintiff, in all cases where he is entitled to a Capias, may, in the first instance, sue out a Summons, and upon its return, the Court, on motion, may order special bail to be given, in the same manner, as if the Capias has been the first process; Id. p. IIT, *§> 1. By the Act of 1838, to abolish imprisonment for debt, and the acts amendatory thereto of 1839, and 1843, commonly called the non-imprisonment acts, certain cases are withdrawn from the operation of the act of 1831. These cases are: — Any action for the recovery of any debt due on any contract, promise, or agreement. Any action for the recovery of damages for the non-performance of any contract, promise or agreement, and Any action for the recovery of damages in any action of trespass ; Swan's Stat. 646, 649; Ohio Stat, vol 41, p. 28. These Statutes also except certain cases from their own operation, leaving them to be regulated by the act of 1831, as follows: Actions on promises to marry. ASSUMPSIT. 31 Capias ad Respondendum. Actions for money collected by any public officer, or attorney at law, and Actions for any misconduct or neglect in office, or professional employment. These Statutes further modify the act of lS31,and allow a Capias to issue " if any creditor, his authorized agent or attorney, shall make oath or affirmation in writing, before any Judge of the Supreme Court, or Court of Common Pleas, that there is a debt or demand justly due to such creditor, of one hundred dollars or upwards, speci- fying, as nearly as may be, the nature and amount thereof, and establishing one or more of the following particulars : " First — That the defendant is about to remove his property out of the jurisdiction of the Court, with intent to defraud his creditors : or " Second — That he is about to convert liis property into money, for the purpose of placing it beyond the reach of his creditors : or " Third — That he has property, or rights in action, which he fraudulently conceals : or '• Fourth — That he has assigned, removed, or disposed of, or is about to assign, remove, or dispose of, his property, with intent to defraud his creditors : or •' Fifth — That he fraudulently contracted the debt, or incurred the obligation for which suit is about to be brought : or " Sixth — That the defendant is about to remove his person out of the State or County, with intent thereby to defraud his creditors: or '•' Seventh — That he has converted his property into money, for the purpose of placing it beyond the reach of his creditors : or "Eighth — That he is not a citizen or resident of the State."* So that there are two classes of cases in which a Capias may now issue: — One, under the act of 1831, and the other, under the non- imprisonment acts. Prtecipe for Capias under the Act of 1831. A B , ^ V, > In Assumpsit. Damages dollars. C D , ) Issue a Capias ad respondendum returnable forthwith, [if in Term time,^ or, at the next Term, \if in vacation.]^ Indorse — Suit (a) A citizen of one State becomes his actual residence ; 1 Paige, 183; a citizen of another State when he See 6 Pet. 761 ; 8 Wend. 140; 3 makes such other State the place of Wash, C. C. Rep.. 103. 22 ASSUMPSIT. Capias ad Respondendum. brought for money collected by the defendant, as Sheriff, belonging to the plaintitT: or. For damages for breach of promise of marriage : or, For damages for misconduct as an attorney at law [stati7ig briefly the substance of the cause of action, whatever it may he.] See Praecipe for Summons, ante. 12. Hold to bail in the sum of dollars [double the amount sworn to.] To the Clerk of Com. Pleas. Dated, &c. T S , Att'y for Pl't'ff. The Affidavit is annexed to the above Precipe and filed there- with. Affidavit to hold to Bail under the Act of 1831. The above named A. B. makes oath and says, that the above named C. D. is truly and justly indebted to this deponent in the sum of dollars \not less than one hundred dollars] for money of this deponent, collected by the said C. D. as Sheriff of County : or. For damages sustained by this deponent for the violation of the said C. D's. promise to marry this deponent : or, For damages sustained by this deponent, by reason of the misconduct of the said C. D. as the attorney at law of this deponent in a certain suit brought by E. F. against this deponent, in the Court of [stating briefly the sub- stance of the cause of action, whatever it may be.] Sworn to and subscribed ~] before me, this — day of — , A. D. — . J A B . The like by an Agent. T. W. of, &-C., makes oath and says, that he is the agent of the above named A. B. in this behalf, and that as he is informed and verily believes, &-c. When application is made to a Judge, in vacation, for a Cajnas an affidavit of the " 2^articular circumstances," must in like manner be annexed to the Praecipe ; and the Judge will exercise a discretion, in allowing or refusing the writ, and also in fixing the amount of bail : If allowed, the Judge will make the following order on the Prajcipe. Judges' ordek for Special Bail in Vacation. Let a Capias issue upon the above Pra3cipe ; and the Sheriff is hereby ordered to hold the defendant to bail in dollars. T W , Judge, Slc. To the Clerk of Com. Pleas. Dated, &lc. ASSUMPSIT. 23 Capias ad Respondendum. If application be made to the Court in Term time, the common Praecipe for a Capias is first filed, and then the plaintiff discloses to the Court, by affidavit or otherwise, the particular circumstances, which entitle him to special bail, and thereupon the following order is taken : B- V. > In Assumpsit, C D ) On motion to the Court, by Mr. O., counsel for the plaintiff, it is ORDERED that a Capias ad respondendum issue in this cause against the defendant, and that the Sheriff hold him to bail in dollars. Precipe for Capias under the non-imprisonment Acts.* A B ^ V. > In Assumpsit. Damages Dollars. C D S Issue a Capias ad respondendum xeixxxn^hle forthwith, \ifin Term time,^^ or, at the next Term, [if in Vacation.^ Indorse — Suit brought on note of hand given by defendant to plaintiff for dollars, dated [stating the substance of the cause of action.] See Praecipe for Summons, Ante. 12. Hold to bail in the sum of dollars, [double the amount sworn to.] To the Clerk of Common pleas. T. S., AtVyfor Plaintiff'. Dated, &c. The proper Affidavit is to be annexed to the above Prtecipe and filed therewith : thus : Affidavit to hold to Bail under the non-imprisonment Acts. The above named A. B.'' makes oath and says, that the above named C. D. is truly and justly indebted to this deponent in the sum (a) When this writ may issue, Swan's Stat, 047, § 3. If made by Seu Ante. 20. an agent, say T. S,, makes oath and says that he is the authorized agent (b) The Statute requires the affi- of the above named Jl. B. in this davit to be made by the "creditor, behalf , and that the above named C. his authorized agent or attorney ;" D. is truly and justly indebted, ^-c 24 ASSUMPSIT. Capias ad Respondendum, of dollars [not less than 100 dollars,] for goods sold and deliv- ered by this deponent to the said C. D. — Or, for the use of a cer- tain horse and chaise let to hire by this deponent to the said C. D. — Or, for work and labor done by this deponent for the said C. D. — Or, for money lent and advanced by this deponent to the said C. D. — Or, upon a note of hand given to this deponent by the said C. D. for dollars, dated , [ Or, upon a bill of exchange, deed, bond, judgment, policy of insurance, &/-c., specifying, as nearly as may be, the nature and amount of the debt.] — And this deponent further says, that he has reason to believe, and does verily believe, that the said C. D. is about to remove his property out of the juris- diction of the Court of Common Pleas of County ; [Or,] That he has been credibly informed, and verily believes, that the said C. D. is about to convert his property into money, for the purpose of placing it beyond the reach of his creditors ; [Or,] That he verily believes that the said C. D, has property, [or if the fact be so,] rights in action, which he fraudulently conceals ; [Or,] That he verily believes that the said C. D. has assigned, removed, or disposed of, or is about to dispose of his property, with intent to de- defraud his creditors ; [Or,] That the debt and cause of action set forth in the above Prcecipe, and for which suit is about to be brought, was fraudulently contracted by the said C. D. ; [Or,] That he verily believes that the said C. D. is about to remove his per- son out of the State of Ohio [or county of ] with intent thereby to defraud his creditors ; [Or,] That he verily believes that the said C. D. has converted his property into money, for the purpose of placing it beyond the reach of his creditors ; ASSUMPSIT. 25 Capias ad Respondendum. [Ok,] That he verily believes that the said C. D. is not a citizen or resident of the State of Ohio.^ A. B. Sworn to and subscribed before me, this day of , A. D. ."^ Writ of Capias ad respondendum. [Seal.] The State of Ohio, To the Sheriff of County, Greeting : We command that you take C. D. if he may be found in your bailiwick, and him safely keep, so that you have his body before our Court of Common Pleas, of the county aforesaid, at the Court House in said county, on the first day of their next Term, to answer unto A. B. in a plea of Assumpsit. Damages dollars ; and have you then there this writ. Witness, F. W., Clerk of our said Court of Common Pleas at C—, this — day of — , A. D. — . F W , Clerk. Upon the back of the writ, the Clerk indorses the cause of action, and the amount appearing to be due, or sworn to, and the amount for which bail is required to be taken, as the same are stated in the Praecipe, Judges order, or order of Court, thus : Suit brought onnote (a) It is sufficient if the Affidavit goods, wares and merchandise, sold follow the words of the Statute; and delivered by said deponent to Hockspringer v. Blackeyiburg, 16 said H. at his request, on for Ohio Rep. 304. In that case the dollars; and the said deponent Affidavit Avas in the following form : further saith, that the said H. is about " The above named J. B. makes oath to dispose of his property with intent and saith, there is justly due from to defraud his, said H.'s creditors, the above named M. H. to said de- ponent the sum of dollars, over (b) The Statute requires the Affi- and above all discounts and payment davit to be sworn to before a Judge on account of the same, on a certain of the Supreme Court, or Court of note executed by said H. to said'Me- Common Pleas, or Clerk of either of ponent, dated and payable in said Courts, or a Justice of the Peace; days after the date thereof, for Swan's Stat. 647, § 3. dollars ; and on an account for 26 ASSUMPSIT. Capias ad Respondendum. of hand for ,f — given by deft to pVVff, dated — , &fc. [following the Praecipe.] Amount sworn to — dollars. Hold to bail in — dollars [double the amount sworn to.} The same indorsement for costs is also necessary, as in case of a Summons. See Summons, ante. 13. The want of an indorsement upon the writ of the amount in which the defendant is to be held lo bail, is no ground of error. The usual and proper practice is to require bail in double the amount sworn to. Hockspringer v. Ballenburg, 16 Ohio Rep. 304. For the form of alias and pluries Capias, See, alias and pluries Summons, ante. 15. The like against one of two joint defendants residing in another county. [Seal.] The State of Ohio, To the Sheriff' of Ross county, Greeting : We command you to take E. F., if he may be found in your baili- wick, and him safely keep, so that you have his body before our Court of Common Pleas of the county of Franklin, at the Court House in said County, on the first day of their next Term, to answer jointly with C. D. unto A. B. in a plea of Assumpsit. Damages — dollars ; and have you then there this writ. Witness, F. W. Clerk of our said Court of Common Pleas of Franklin County, at C — , this — day of — , A. D. — . F W , Clerk. Testatum Capias. [Seal.] The State of Ohio, To the Sheriff of Franklin County, Greeting : Whereas we lately commanded our Sheriff of Hamilton County to take C. D. if he might be found in his bailiwick, and him safely keep, so that he should have his body before our Court of Common Pleas of said JIamilton County, at the Court House in said County, on the — day of, &.c., to answer unto A. B. in a plea oi Assumpsit, Damages — Dollars ; and our said Sheriff of Hamilton County hath thereon returned, that the said C. D. was not to be found in his baili- wick ; upon which, on the part of the said A. B. before the said Court of Common Pleas of Hamilton County, it is sufficiently testified, ASSUMPSIT. 27 Capias ad Respondendum. that the said C. D. after the suing out of the said writ of Capias, did remove into the County of Franklin aforesaid ; therefore we com- mand you that you take the said C. D. if be found in your baihwick, and him safely keep, so that you have his body before our said Court of Common Pleas of Hamilton County, at the Court House in said County, on the first day of their next Term, to answer unto the said A. B. in the same plea of Assumpsit, Damages — dollars : and have you then there this writ. Witness, &c. [Conclude as in the original Capias, ante. 25.] For proceedings by Proclamation, See, ante. 18. When the defendant is arrested, he must either go to prison for safe custody, or enter into a bond with sureties, to be approved of by the Sheriff, conditioned for his appearance in Court, at the return of the writ — This is called bail helow in contradistinction to that bail which is afterwards put in when the defendant does appear upon the return of the writ, and which is sometimes called bail above. Bail Bond to the Sheriff. Know all men by these presents, that we, C. D,, E. F. and G. H., are held, and firmly bound unto T. W., Sheriff of the County of — , in the sum of — dollars, [double the sum indorsed on the wi'it,^ to be paid to the said Sherifi', his executors, administrators or assigns, for which payment well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, and dated this — day of — , A. D. — . The condition of the above obligation is such, that if the above bound C. D. do appear before the Court of Common Pleas of the County of — , at the Court House in said County, on the first day of their next Term, or on the succeeding day,* to answer to A. B. in a plea of Assumpsit, Damages — • Dollars, then this obligation to be void, otherwise in full force and virtue in law. C. D. [Seal.] E. F. [Seal.] G. H. [Seal.] If the defendant appears according to the exigency of the writ and the bail bond, fresh security is required of him, who are bound for the payment of the debt and costs, should the plaintiff recover in the (a) Special bail must be filed on the succeeding day ; Swan's Stat. the return day of the Capias, or on 652, § 25. 28 ASSUiMPSIT. Capias ad Respondendum. action ; or that tlie defendant should be rendered into custody. This is done by the defendant, and his sureties entering into a recognizance to that eftcct, which is called putting in bail to the action, or bail above, or, entering special bail. The form of this recognizance is prescribed by Statute ; Swan's Stat. 654, ^ 33. Proceedings against the Sheriff.* Motion for a Rule on the Sheriff to bring in the Body. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the said A. B. by Mr. O., his attorney, and moved the Court for a Rule upon T. S., the Sheriff of this County, to bring into Court, during the present Term, the body of the said C. D. upon the Capias ad respondendum issued in this cause, and thereupon It IS ORDERED by the Court, that Notice be forthwitli given to the said T. S. to show cause, if any he has, on tomorrow morning at 10 o'clock, or as soon thereafter as counsel can be heard, why said Motion should not be granted. (a) If the Sheriff make no return, at all, he may be amerced to the amount of the plaintiff's debt ; See Amercement of Sheriff. Post. The Statute provides that, if, upon a Capias ad respondendum, the Sheriff return, " I have taken the body," and shall not return bail, and a copy of the bail bond ; or if the bail taken, shall, in the opinion of the Court, be insufficient ; or the de- fendant shall fail to appear and give special bail on the return day of the Capias, or on the succeeding day ; the Court, on motion, shall rule the Sheriff to bring in the body of the defendant within the Term ; and if he fail so to do, the Sherifl shall be amerced by the Court, in any sum not exceeding the plaintiff's debt or demand, with costs; which amerce- ment shall have the same force and effect as a judgment; nevertheless, if the Sheriff cause special bail to be put in and justified, if justification be required, during the same Term, he shall be excused from bringing in the bud)'-, and no amercement can be entered against him on the rule. A Sheriff is not liable to be called upon to produce the body of a defendant upon a Capias, returned, "I have taken the body," unless he be requi- red so to do, before the expiration of the second Term after the return of such Capias ; Swan's Stat. 653, § 27 ; 0.57, § 49. ASSUMPSIT. 29 Capias ad ReapoBdendum. Notice to the Sheriff. B- V. > Common Pleas. C D ) To T. S., Sheriff of — County : You are hereby notified to appear before the said Court of Com- mon Pleas, on tomorrow morning, at 10 o'clock, or as soon thereafter as counsel can be heard, and show cause, if any you have, why a Rule shall not then be taken against you to bring into Court, during the present Term, the body of the said C. D., upon the Capias ad re- spondendum issued in this cause. Notice served. E. T. makes oath and says, that on the — day of — , A. D. — , he personally served the within named T. S. with a true copy of (he within Notice at . E. T. Sworn to, &c. Rule absolute to bring in the body. A B ^ v. > In Assumpsit. C D ) This day came again the said A. B., by Mr. O., his attorney, and proved due service of Notice as herein ordered on yesterday, and it appearing to the satisfaction of the Court that the said T. S., Sheriff as aforesaid, has returned upon the Capias ad respondendum herein issued, " I have taken the body," but has not returned bail and a copy of the hail bond, therefore, on motion of the said A. B,, It is ordered, that the said T. S., Sheriff as aforesaid, do bring into Court, during the present Term, the body of the said C. D., upon said Ca- pias ad respondendum.'^ (a) If the Sheriff, upon being rul- Sheriff, in order to save himself, may ed so to do, brings in the body of the put in special bail for the defendant, defendant, such defendant will be Avithout his consent ; and the sureties committed ; and upon entry of such of the Sheriff may do the same /or committitur, the plaintiff may pro- their indemnity ; Swan's Stat. 053, ceed in the action,'and declare against § 28, 29. the defendant as in custody. The 30 ASSUxMPSIT. Capia« ad Respondendum. Motion to amerce. A B ^ V. > In Assumpsit. C D ) This day came the said A. B., by Mr. O., his attorney, and moved the Court for a judgment of amercement against T. S., Sheriff of this County, for not bringing into Court, during the last Term, the body of the said C. D., as then ruled to do ; Whereupon, It is ordered by the Court, that notice be forthwith given to the said T. S. to show cause, if any he has, at 10 o'clock on the — day of — next, or as soon thereafter as counsel can be heard, why this motion should not be granted. Notice to the Sheriff. A B ^ V. > Common Pleas. C D ) To T. S., Sheriff of — County : You are hereby notified to appear before the said Court of Com- mon Pleas, on the — day of — next, at 10 o'clock in the morning, or as soon thereafter as counsel can be heard, and show cause, if any you have, why judgment of amercement should not be rendered against you for not bringing into Court, during the last Term, the bo- dy of the said C. D. upon the Capias ad respondendum herein issued, as then ruled to do. Notice served. E. T. makes oath and says, that on tiie — day of — , A. D. — , he personally served the within named T. S. with a true copy of the within notice, at — . Sworn to, &c. Judgment of amercement. ^^ / In Assumpsit. Motion to amerce T. S., Sheriff /-, *ij C of the County of . This day came again the said A. B., by Mr. O., his attorney, and proved due service upon the said T. S. of the notice herein ordered ASSUMPSIT. 31 Capias ad Respondendum, on the — day of — last ; and it appearing to the satisfaction of the Court, that the said T. S., Sheriff as aforesaid, did not bring into Court, during the last Term, the body of the said C. D. upon the Ca- pias ad respondendum herein issued, as then ruled to do, nor cause special bail to be put in ; but therein made default, therefore, on mo- tion of the said A. B., It is ordered and adjudged by the Court, that the said T. S., as Sheriff as aforesaid be and he is hereby amerced in the sum of — dollars, [not exceeding the plaintiff ^s debt,] with costs taxed at dollars ; and that said A. B. have his execution thereof against the said T. S., according to the Statute in such case made and provided. Proceedings against the Bail. If special bail be not filed in due time, the plaintiff, instead of pro- ceeding against the Sheriff, may, if he chooses, take an assignment of the bond given to the Sheriff and prosecute the Bail. The As signment is a matter of course ; and if the Sheriff refuse to make it, he is liable to an action on the case ; 7 T. R. 122. The Form of the Assignment is prescribed by Statute ; Swan's Stat. 655, <§> 36. I, the within named O. P., do hereby assign and set over the with- in bond to the within named A. B., plaintiff. Witness, my hand and seal, the — day of — , in the year of our Lord one thousand eight hundred and — . O. P., [Seal.] Signed, sealed and delivered in the presence of E. T. E. H. The bail bond cannot be assigned after the Sheriff has been ruled to bring in the body ; 8 Ohio Rep. 26. Nor if the defendant, at the return of the writ, renders himself into custody ; Swan's Stat. 656, '§>44. Proceedings on the bail bond may be set aside for irregularity, or stay- ed upon terms ; See Swan's Stat. 655, <§> 38, 39, 40 ; 8 Ohio Rep. 26. Filing a declaration in chief, or accepting a plea and taking a judg- ment in the original action, or taking any other step, beyond the mere filing a declaration, de bene esse, is a waver of all right to proceed on the bail bond ; See 7 Ohio P^ep. 210, Part 2d. Special Bail. Special bail must be put in on the return day of the Capias, or on the succeeding day ; Swan's Stat. 652, <§. 25. It may be done by 32 ASSUMPSIT. Capias ad Respondendum. the defendant or his attorney ; or by the Sheriff or his sureties ; Id. 653, § 29. The recognizance may be taken in open Court, or by one of tlie Judges, or tlie Clerk of the Court in which the suit is pending ; Id. 654, *§» 33. The Form of the recognizance is prescri- bed by Statute ; Swan's Stat. 654, >§» 33. Recognizance of Special Bail. A— B— , ^ V. > In Assumpsit. C— D— , ) The State of Oliio, — County, ss. Be it remembered, that, on this — day of — , A. D. — , G. H. and E. F. of the County of — , personally appeared before J. K. one of the Judges of the Supreme Court of Ohio, or, one of the Judges of the Court of Common Pleas of the County of — , or, Clei'k of the Supreme Court of the State of Ohio, or, Clerk of the Court of Common Pleas of the County of — , [as the case may be,] and severally acknowledge themselves to owe unto A. B. the sum of — dollars [double the sum indorsed on the ivrit,] to be levied on their several goods and chattels, lands, tenements and estates ; upon condition that if the defendant C. D. shall be condemned in this action, at the suit of A. B. the Plaintiff, he shall pay the costs and condemnation of the Court, or be rendered, or render himself, into the custody of the Siicrift' of said County, for the same, or in case of failure, that the said G. II. and E. F. will pay the costs and condem- nation for him. Taken and acknowledged, the day and year above written, before nie. J. K. The bail piece is also prescribed by Statute ; Swan's Stat. 654. Bail Piece. State of Ohio : Supreme Court, or, Court of Common Pleas, of the — day of — , A. D. — , C. D. of the County of — , is deliv- ered to bail on a cepi corpus, unto G. II. and E. F. of the said County, at the suit of A. B. in a plea of Assumpsit.^ Attest: S. W. Clerk. (a) The Bail, by virtue of the Bail 7 Johns. 115; 4 Conn. 166; 1 Piece, may take the defendant at any Baldw. 578 ; 3 Taunt. 436. lime, and keep him in safe custody ; ASSUMPSIT. 33 Capias ad Respondendum. Exception to Special Bail. Exception to Special Bail is taken and entered on the Clerk's Docket during the Term to which the writ is returned, otherwise it is nugatory ; Swan's Stat. 653, >§> 30. It may be in the following Form: A— B— , ^ V. > In Case. C— D— , ) This day came the said A. B. and excepts against the Special Bail put in for the defendant in this case. A written Notice of the Exception is required, by Statute, to be served on the defendant or his attorney of record; Swan's Stat. 653, <§> 30. Notice of Exception. A— B— , ^ V. > Common Pleas of — County. C— D— , ) The Defendant, or his Attorney, will take Notice, that Exception is taken to the Special Bail in this case, and was entered on the Clerk's docket, on the — day of — , instant. Dated, ^c, A. B. Within eight days, exclusive, after Exception taken and notice given, the defendant procures his bail to justify, or adds other bail, who must also justify within the same time ; Swan's Stat. 653, <§> 30. Two days' notice of the time of justification, or of putting in new bail, is given by the defendant or his attorney, to the plaintiff or his attorney, exclusive of the day it is given ; and if Sunday intervene, then three days ; Id. 653, <§> 31. In actions in the Supreme Court, Special Bail justify, by affidavit, in that Court, or before one of the Judges or the Clerk, either in term time or in vacation ; and in actions in the Court of Common Pleas, they justify, in like manner, before that Court, or a single Judge, or the Clerk, either in term time or in vacation ; Id. 654, <§> 34, 35. The affidavit is required by Statute to " set forth that the bail is a resident of the County, and that he is worth so much, [mentioning the sum he is bail for,] after all his debts are paid." Id. 654, <§> 34. 34 ASSUiMPSIT. Capias ad R«spondenduin. When Special Bail justify, and are allowed, an order of allowance is made, and a copy served on the defendant or his attorney ; Id. 654, <§> 32. Notice of Justification. A— B— , ^ V. > Common Pleas of — County. C— D— , ) The Plaintiff, or his Attorney, will take Notice that the Special Bail put in for the defendant in this case, will justify before the Clerk of said Court, at his office in C — , on tomorrow morning, at nine o'clock, as good bail. Bated, ^c. A. B. Affidavit of Justifcation. A— B— , ^ V. > Common Pleas of — County. C— D— , ) Personally appeared before me, J. S., Clerk of the said Court of Common Pleas, E. F., who being duly sworn deposes and says, that he is one of the Special Bail in this case ; that he is a resident of said County of — , and that he is worth the sum of — dollars [amount he is bail for] after all his debts are paid. J. S., Clerk. Sworn to and subscribed^ before me, this — day of — , A. D. _. Allowance of Bail in open Court. A— B— , ^ V. > In Case. C— D— , ) This day E. F. and G. H. appeared in open Court, and justified themselves as Special Bail in this case, It is therefore ordered by the Court that they be allowed to stand as Special Bail. ASSUMPSIT. 35 Defendant's Appearance. The like, before a Clerk. A_ B— , ^ V. > Court of Common Pleas — County. C— D— , ) Be it remembered that on, &,c., [the time and place specified in the jNotice,] personally appeared before me, J. S., Clerk of said Court, E. F. and G. H., and justified themselves as Special Bail in this case. It is therefore ordered by me, that they be allowed to stand as Special Bail. Attest: J. S., Clerk. A Copy of the Order of Allowance is in all cases to be served on the plaintiff, or his attorney ; Swan's Stat. 653, *§. 32. When new Bail is added, the Forms of proceeding are nearly the same as the foregoing ; See Swan's Stat. 653, >§> 30. Defendant's Appearance. Anciently, in England, the defendant came into Court in person, and had his appearance technically entered upon the roll — Obtulit se in propria persona. Afterwards, he appeared by attorney, which, in the King's Bench, was done hy filing common hail; and in the Com- mon Pleas, by an actual entry with the proper officer. Without such appearance, the plaintiff could not proceed in his suit ; Sell. Prac. 90. In our practice no technical entry is required. The due return of process, by the Sheriff, is under the Statute, a constructive appear- ance ; so that the defendant is thereby considered as in Court, and may be proceeded against accordingly; Swan's Stat. 650 *§> 14. But such appearance does not cure errors or defects in process, nor preclude the defendant from setting aside the proceedings for irregularity; 10 Ohio Rep. 263 ; Wrighfs Rep. 762 ; See 4 Blackf. 139. If a de- fendant be in Court, yet says he will not appear, this is no appear- ance ; 7 Vin. Abg. 429. So if the defendant be ruled to plead, but remains passive ; 3 Blackf. 225. But if he take any step in the cause, as filing special Bail, putting in a demurrer, or plea, or taking a rule for security for costs, and the like, this is such an appearance as cures all errors and defects in process ; Strange, 155 ; 3 T. R. 61 1 ; 3 Ohio Rep. 212 ; WrighVs Rep. 762 ; 7 Mass.A6l. And therefore, if after being sued by a wrong christian name, he appears, in this manner, by his right name, the plaintiflT may declare against him in his right name : 2 Wils. 393 ; 1 Petcrsd. Abg. 724 ; See 8 Ohio Rep. 174. 36 ASSUMPSIT. Declarations ^Common Counts. The defendant being properly in Court, the plaintiff files a declar- ation within the time limited by the Rules of Court, or he will be lia- ble to a nonsuit.^ The Forms of Declarations and other Pleadings adopted in the first Edition of this work, from Precedents in common use in England and in the State of New York, are again inserted here, without any ma- terial alteration ; See 20 Eng. Com. Law Rep. 323 ; 13 Johns. 483 ; 6 Ohio Rep. 305 ; Yeates PL 167. Several other Forms are added, especially in Statutory actions, in most of which the authorities are cited on which they depend. Common Counts.^ ■) Supreme Court, or Court of Common I mon Pleas : Term. [ The Term to )'iohich the writ was returned, or, the Term County, ss. | at which the cause was brought into Court J by Appeal, or Certiorari^ A. D. . A. B. complains of C. D.'' in a plea of assumpsit, for that where- as,* the said C. D., on at was indebted to the said A. B. (a) The ordinary evidence that a, paper has been filed officially, is the Clerk's indorsement of the fact on the back of it ; but such indorsement is not indispensable ; if strung on a thread, or laid in a drawer, or a pig- eon hole, that it seems would be a filing within the meaning of the Law ; 4 Ohio Rep. 88; 2 Marsh. 124. The defendant is bound to take notice himself of the filing of the declaration, and in no case is it ne- cessary to serve him with a copy, except only when he is in custody ; Swan's Stat. G70, § 95, 056, § 48. (b) When the Common Counts may be resorted to in the place of Special Counts ; See 1 Chitt. PI. 8 Ed. 842, where the English cases are collected ; See, also, 2 Phil. Ev. 202, Note 108, 109; 21 Wend. 90, 175; 15 Pick. 171 ; 2 Hill, (N. Y.) 137 ; 1 Blackf. 303 ; 2 do. 235 ; 4 Conn. 350; 25 Wend. 665 ; 3 Watts. 331; 6 N. Hamp. 15; 6 Halst. 181; 1 1 Wheaton, 237 ; 18 Maine Rep. 296 ; 2 McLean, 214 ; 10 Pet. 137; 2 Leigh. 76; 11 Ohio Rep. 5, 323, 232, 452 ; 5 do. 349, 536, 375, 425, 386 ; 1 do. 352, 357 ; 9 do. 4 ; 10 do. 142 ; 2 do. 271 ; Wright's Rep. 378, 315, 585, 587, 489, 705. (c) For Misnomer of parties, and how they may be described, See Declarations on Promissory Notes No. 1, (note a); and Pleas in Abate- ment in Assumpsit. If a writ be returned served, as to one or more of several defendants, and not found, as to others, a sugges- tion of such return, as to the defend- ants not found, is required by Stat- vxte, to be made in the Declaration ; Swan's Stat. 658, § 52. It may be made immediately after (c) in the above Precedent, and in the form following : " The Sheriff having re- turned, Not found, as to E. F. and G. ASSUMPSIT. 37 Declarations — Common Counti. in dollars for the price and value of goods, then and there bar- gained and sold by the plaintiff to the defendant at his request : And in — dollars for the price and value of goods then and there sold and delivered by the plaintiff to the defendant, at his request : And in — dollars for the price and value of work then and there done, and materials for the same provided by the plaintiff for the de- fendant at his request : H. against whom process in this cause was also issued." The Dec- laration then sets forth the cause of action in the same manner as if all the defendants had been served ; and those who were not served may afterwards be made parties to the judgment by Scire Facias ; See Scire Facias. When there are two or more plain- tiffs or defendants, and one or more dies, leaving survivors, the death is suggested on the record, and the cause proceeds to final judgment and execution ; Swan's Stat. G68, § 85. The death may be suggested by a special entry on the Journals, or in the commencement of the next plead- ing after the death occurs, and so be carried into the record. Where one of the plaintiff's dies after the issuing of the writ, the commencement of the Declaration is as follows: ".5. £. complains of C. D. ivlio was SUMMONED to ansicer the said Ji. B. and one E. F., who died after the is- suing of the ivrit of summons at the suit of the said A. B. and the said E. F., in this cause, to wit: S^-c, which the said C. D. doth not deny, in a plea of, ^'C. When one of the defendants dies, the Form is as fol- lows : w3. B. complains of C. D., who was suMJioNED to answer the said Jl. B. by virtue of a writ issu- ed in this cause on, ^-c, against the said C. D. and one E. F., ivho died after the issuing of said lorit, to ivit : on, ^-c, which the said C. D. doth not deny, in a plea of, S,'C. ; Tidd's Practical Forms, 126. The declaration need not recite hoiv the defendant was brought into Court, whether on original Process, or by Appeal, Certiorari, Warrant of Attorney to confess judgment, Proc- lamation, Attachment, or otherwise. Other Forms of Commencement. By an Adm,inistrator, Executor, or Surviving Executor. A. B., Administrator or Executor, or Surviving Executor of the last will and testament of J. S., deceased, complains, &c. By an Administrator ivith the ivill annexed. A. B., administrator of J. S., de- ceased, with the last will and testa- ment of the said J. S., annexed, com- plains, &c. By an Administrator, de bonis non, ivilh the w'ill annexed. A. B., administrator, with the last will and testament of J. S. annexed, of the goods and chattels, rights, moneys, credits and effects which were of the said J. S. at the time of his death, left unadministered by T. W., deceased, who at the time of his death Avas Executor of the said J. S., complains, &c. 38 ASSUMPSIT. Declarations — Common Counts. And in — dollars for money then and there lent by the plaintiff to the defendant at his request : And in — dollars for money then and there paid by the plaintiff for the use of the defendant at his request : And in — dollars for money then and there received by the de- fendant for the use of the plaintiff: And in — dollars for money found to be due from the defendant to the plaintiff on an account then and there stated between them. By an Administrator de bonis non after former Administrator re- moved by order of Court. A. B., administrator of the goods and chattels, rights, moneys, credits and effects Avhich were of J. S. at the time of his death, left unadminister- ed by T. W., former administrator, lately removed by order of Court, complains, &c. By an Infant. A. B., by his next friend, J. S., who is allowed by the Court to pros- ecute this suit in behalf of the said A. B., who is an infant under the age of ftventy-one years, to wit : of the age of years, complains, &c. ; See 5 Ohio Rep. 227. By Commissioner of Insolvents. A. B., Commissioner of Insolvents within and for said County of , complains, &c. By Husband and Wife. A. B., and H., his wife, complains, &c. By Guardian of Idiot, Lunatic, or Insane person. A. B., Guardian of J. S., an Idiot, or Lunatic, or Insane person, com- plains, &c. By an Informer. A. B., who in this behalf sues as well for the State of Ohio as for him- self, complains, &c. By County Commissioners and oth- er like officers. The County Commissioners of — , County , complain, &c.; The Trustees of the Township of -, complain, &c. ; The Trustees of School Section 16, in Township , Range , complain, &c. ; omitting, in each case, the names of the individuals holding the office ; 3 Ohio Rep. 227 ; 5 Ohio Rep. 184 ; 8 Ohio Rep. 174. By Supervisor of Highways. H. B., Supervisor of Highways in Road District No. — — — , in and for the Township of '—, in the Coun- ty of , complains, &c. By an unincorporated company — association — or partnership ; O. Statutes, Vol. 43, p. 114; See Pleas in Abatement, No. 4, note (a.) The Zanesville Manufacturing Company. The Mining Association. The Ohio Stage Company, or John Nokes & Co. ASSUMPSIT. 39 Declarations — Common Counts. And whereas, the defendant afterwards, on — [before the com- mencement of the suit,] in consideration of the premises, then and there promised to pay the said several sums of money to the plaintiff on request ; yet he hath disregarded his promises, and hath not paid the several sums of money nor either of them, nor any part thereof ; to the damage of tlie plaintiff — dollars, and thereupon he brings suit, &c. By T., his AtVy. If the declaration contains one or more counts against the maker of a note, or acceptor of a bill of exchange, or other special count, it will be proper to place thcmT^r*^ in the declaration, and then con- clude thus : '• And whereas, the defendant afterwards, on — , in con- sideration of the premises, then and there promised to pay the said last -mentioned several sums of money to the plaintiff, on request ; yet he hath disregarded his promises, and hath not paid the said sev- eral sums of money, nor either of them, nor any part thereof ; to the damage of the plaintiff — dollars, and thereupon he brings suit, &c. Against an Administrator or Ex- ecutor. A. B. complains of C. D., Ad- ministrator of J. S., deceased ; or, Executor of the last will and testa- ment of J. S., deceased. Against Husband and Wife. A. B. complains of J. S., and H., his wife. Against an Injant. The same as against any other de- fendant, not noticing the infancy. Against an unincorporated compa- ny — association — or partnership / See Pleas in Abatement, No. 4, note (a.) A. B. complains of The Zanesville Manufacturing Company. The Mining Association. The Ohio Stage Company, or John Nokes & Co. Against County Commissioners or other like Officers. A. B. complains of the County Commissioners of — — — county ; Of the Trustees of the Township of ; Of the Trustees of School Section 16 in, &c., omitting in each case the names of the individuals holding the office ; 3 Ohio Rep. 227 ; 5 Ohio Rep. 184; 8 Ohio Rep. 174. Against Watercrafi, by Name. A. B. complains of the Steamboat Monarch, seized and held in custo- dy, by virtue of a Warrant issued against the same, at the suit of the said A. B. in a plea, &c. 40 ASSUMPSIT. Declarations — Indebitatus Counts. Indebitatus Counts — Chitt. Prac. (A.) For Board and Lodging. Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D., on — at — was indebted to the plaintiff in — Dollars, (**) for the use and occupation of certain rooms, apartments and furniture of the plaintiff, before that time used and enjoyed by the defendant, [" and other persons," if the fact be so,] at his request and by the permis- sion of the plaintiff, and for meat, drink, attendance and other nec- essaries and goods by the plaintiff found and provided for the defen- dant, [" and other persons,"] at his request ; and in, &c., [Add Com- mon Counts, Ante. 36.] (B.) For Crops sold to the Defendant. [Proceed- as in form (A.) to the (**) — For divers crops of corn, wheat and turnips, and other crops of the plaintifl', before then bargained and sold by the plaintifi' to the defendant at his re- quest, and by the defendant, under and by virtue of such bargain and sale, before then accepted, had and received, and mown, cut down, and taken to his own use. [Add Common Counts, Ante. 36.] (C.) For Fixtures. [Proceed as in form (A.) to the (**) — For certain fixtures, goods, chattels and effects, bargained and sold, relinquished and given up, by the plaintiff to, and in favor of the defendant, at his request. [Add Common Counts, Ante. 36.] (D.) For the Good Will of a Business. [Proceed as in fcyrm (A.) to the (**) — For the good will of a certain trade or business carried on by the plaintiff, and by him sold, relinquished and given up to and in favor of the defendant, at his request ; and in, &c., [Add Common Counts, Ante. 36.] ASSUMPSIT. 41 Declarations — Indebitatus Counts. (E.) Against the Hirer of Goods for the price of hire THEREOF. [Proceed as inform (A.) Ante. 40, to the (**) — For the use and hire of goods and chattels (or " horses, carriages, and goods,") by the plaintiff let to him to the defendant, and at his request, and by him accordingly had and used ; and in, &.C., [Add Common Counts, Ante. 36.J (F.) For Horsemeat. [Proceed as in form (A.) Ante., 40, to the (**) — For horsemeat, stabling, care, and attendance by the plaintiff, provided and bestowed in and about the feeding and keeping of divers horses, mares, geld- ings, and cattle, for the defendant, at his request; and in, &c., [Add Common Counts, Ante. 36.] (G.) For Use and Occupation. [Proceed as inform (A.) Ante. 40, to the (**) — For the use and occupation of a certain messuage, and certain lands and premi- ses, [description] with appurtenances of the plaintiff, by the defen- dant, at his request, and by the sufferance and permission of the plaintiff, for a long time held and enjoyed ; and in, &c., [Add ac- count stated, Ante. 38.] (H.) For the Rent of Lodgings. [Proceed as in Form (A.) Ante. 40, to the (**) — For the use and and occupation of certain rooms and apartments, parcel of a mes- suage of the plaintiff, by the defendant, at his request, and by the plaintiff's sufferance and permission, for a long time held and enjoyed. (If furnished lodgfngs, add, " Willi certain furniture, and effects, and chattels of the plaintiff therein.") [Add account stated. An- te. 38.] (I.) For Servant's Wages. [Proceed as in Form (A.) Ante. 40, to the (**) — For the wages or salary of the plaintiff, payable by the defendant to the plaintiff, for his work and services by him done and rendered as the hired ser- vant of and for the defendant, and upon his retainer, and in, &c. [Add account stated, Ante., 38.] 6 42 ASSUMPSIT. Declarations — Indebitatus Counts. (K.) For Necessaries. [Proceed as in Form (A.) Ante. 40, to the (**) — For meat, drink, washing, lodging, attendance, and other necessaries and goods found, supphed and provided by the plaintiff for the defendant (" and other persons, if the fact be so,) at his request; and in, &c. [Add Com- mon Counts, Ante. 36.] (L.) By a Schoolmaster for Tuition, Board, &c. [Proceed as in Form (A.) Ante. 40, to the (**) — For work done by the plaintiff as a schoolmaster in and about the instructing divers in- fants and other persons in reading, writing, arithmetic, and in divers languages and qualifications and otherwise, at the defendant's request, and for materials provided and used by the plaintiff on those occa- sions, at the defendant's request ; and for meat, drink, washing, lodg- ing, and other necessaries and chattels, by the plaintiff provided for the said infants and other persons, at the defendant's request, and, in &.C. [Add Common Counts, Ante. 36.] (M.) By a Railroad Company for Tonnage. [Proceed as in Form (A.) Ante. 40, to the (**) — For rates, tolls, and duties due from and of right payable by the defendant to the plaintiff for the tonnage of divers goods and chattels, carried and conveyed by and for the defendant upon the railway of the plaintiffs ; and in, &c. [Add Common Counts, Ante. 36.] (N.) For Warehouse Room. [Proceed as in Form (A.) Ante. 40, to the (**) — For work, done by the plaintiff, and for warehouse room by him found and provided in and about the stowing, keeping and taking care of certain goods, before then stowed, kept, and taken care of by the plaintiff' in cer- tain warehouses and premises of the plaintiff' for the defendant, and at his request ; and in, &c. [Add Common Counts, Ante. 36.] (O.^ For Wharfage. [Proceed as in Form (A.) Ante. 40, to the (**) — For the light- erage, wharfage, and warehouse room, of divers goods, wares, and merchandise by the plaintiff before that time shipped and landed in and ASSUMPSIT. 43 Declarations — Indebitatus Counts. by certain lighters and other vessels of him, the plaintiff, and depos- ited and kept in and upon a certain wharf and certain warehouses and premises of the plaintiff, for the defendant and at his request ; and in, &c. [Add Common Counts, Ante. 36.] (P.) By an Agent for Commissions. [Proceed as in Form (A.) Ante. 40, to the (**) — For the work, journies, and attendances of the plaintiff, as tiic agent and for the defendant, and upon his retainer, and for commission and reward payable to the plaintiff in respect thereof; and in, &c. [Add Com- mon Counts, Ante. 36.] (Q,.) For Agistment. [Proceed as in Form (A.) Ante. 40, to the (**) — For the agist- ment, feeding and taking care of cattle by the plaintiff, agisted, fed and taken care of, for and at the defendants request, in and upon certain lands and premises of the plaintiff; and in, &c. [Add Com- mon Counts, Ante. 36.] (R.) Br AN Attorney and Solicitor for his Bill. [Proceed as in Form (A.) Ante. 40, to the (**) — For the work and labor, care, diligence, journeys, and attendances of the plaintiff, by him done, performed, and bestowed,* as the attorney and solicitor of and for the defendant, and at his request, and for fees due and of right payable to the plaintiff in respect thereof, and for materials and necessary things by the plaintiff provided in and about the said work and labor for the defendant, and at his request ; and in, &,c. [Add Common Counts, Ante. 36.] (S.) On an Award. [Commence as in Form (A.) Ante. 40, — For that whereas the said defendant, oh [^c], was indebted to the plaintiff in dol- lars, upon and by virtue of an award made by one E. F. on a sub- mission before then made by the plaintiff and defendant to the award and determination of the said E. F. concerning certain matters in difference then depending between the plaintiff and defendant, and upon which said reference the said E. F. awarded that the defendant should pay to the plaintiff the said sum of money ; and in, &c. [Add Common Counts, Ante. 36.] 44 ASSUMPSIT. Declarations — Quantum Meruit Counts. (T.) On an Umpirage. [Commence as in Form (A.) Ante. 40, — For that whereas the defendant, on [^c], was indebted to the plaintiff in — dollars, upon and by virtue of a certain umpirage made by one E. F. by vir- tue of a submission before then entered into by the plaintiff and de- fendant to the award, order and determination of G. H. and I. K. concerning certain matters in difference then depending between the plaintiff and defendant, and thereby empowering the said G. H. and I. K., in case they should not agree in making such award, to appoint a third person to determine finally the said matters in difference ; and whereupon the said G. H. and I. K. not agreeing in making the said award, by virtue of the aforesaid power, appointed the said E. F. as an umpire to award and finally determine all matters in difference between the plaintiff and defendant ; upon which said reference the said E. F. then awarded that the defendant should pay to the plain- tiff the said sum of money ; and in, &c. [Add Common Counts, Ante. 36.] Quantum Meruit Counts. For Rent. [Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D. on — at — in consideration that the said A. B. at the re- quest of the said C, D. had permitted him quietly to hold and occupy a certain house, &c., from — to — which the said C. D. did hold and occupy accordingly, he, the said C. D., promised the said A. B. to pay him on demand, so mucli money as he reasonably de- served to have therefor ; and the said A. B. avers that he reasonably deserved to have therefor the sum of — dollars ; yet the said C. D. hath disregarded his promise, and though often requested, hath not paid the said sum of money, or any part thereof, &-c. For use and occupation. [Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D. on — at — in consideration that the said A. B. at the re- quest of said C. D. had suffered and permitted the said C. D. to use, occupy and enjoy a certain dwelling house, building and lands, with the appurtenances, situate at — , and which the said C. D. had ac- cordingly used, occupied and enjoyed, for a long space of time then elapsed, he the said C. D. promised the said A. B. to pay him on de- mand, so much money as he reasonably deserved to have therefor ; and the said A. B. avers that he reasonably deserved to have, &c. ASSUMPSIT. 45 Declaration! — Qui.ntuin Meruit Counts. For horse feed, stabling, 8fc. [Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D. on — at — in consideration that the said A. B. at the re- quest of the said C. D. had, before that time, found, provided and suppUcd horse feed, stabhng and attendance for divers horses, mares and geldings of the said C. D. he, the said C. D., promised to pay him, on demand, so much money as he reasonably deserved to have tlierefor ; and the said A. B. avers that he reasonably deserves to have, &c. For the hire of horses, ^c. [Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D. on — at — in consideration that the said A. B. at the re- quest of the said C. D. had before that time let to hire to the said C. D. divers to wit — horses of the said A. B., and that the said C. D., according to said letting to hire, had and used the same, he the said C. D. promised the said A. B. to pay him so much money as he reasonably deserved to have therefor ; and the said A. B. avers that he reasonably deserves to have, &c. By Physicians for Medicines, ^^c. [Proceed as in Common Counts, Antc.36 , to the (*) — the said C. D. on at in consideration that the said A. B. before that time, at the request of the said C. D. had done, performed and bestowed certain work, labor, diligence and care, in and about the healing and curing of the said C. D. and divers persons belonging to his family, of divers diseases and maladies, and had found and provi- ded divers medicines and potions for tiie said C. D. and divers ot his family, at the like request, he, the said C. D., promised the said A. B. to pay him so much money as he reasonably deserved to have therefor ; and the said A. B. avers that he reasonably deserved to have, &c. By Attorney, for his fees, %-c. [Proceed as in Common Counts, Ante. 36, to the (*) — the said C. D. on at in consideration that the said A. B., as the Attorney and Solicitor, and at the request of the said C. D. and on his retainer, had before that time done and performed certain work 46 ASSUMPSIT. Declarations — Promissory Notes. and labor in and about prosecuting and defending divers suits at Law and in Equity, in divers Courts in this State, and in giving his atten- dance in and about the business of the said C. D., he, the said C. D., promised the said A. B. to pay him so much money as he reasonably deserved to have therefor ; and the said A. B. avers that lie reasona- bly deserves to have, &c. Promissory Notes. No. 1 . Payee v. Maker. County, ss. Supreme Court, or Court of Common Pleas, Term, A. D. [The Term to which the writ was returned, or, at which the cause was brought into Court by Appeal or Certiorari.'] A. B. complains of C. D.^ in a plea of Assumpsit, for that whereas * the said C. D., on — at — ^ made his promissory note in wri- ting, and delivered the same to the said A. B. and thereby promised to pay to the said A. B. or order — dollars, in — days after the (a) For the proper suggestion where one or more of several defen- dants is returned, Not served ; and other Forms of Commencement, See Declaration on Common Counts, note (c) Ante. 36. The omission of "Junior,'' in giving the name of a party is not fatal on Error; 11 Wend. 522. Josier for Josiah is no vari- ance; 1 Litt. 216. A Bill was signed £. Brown — the Declaration called it Elisha Brown — proof that the real name is Elijah Brown, not admissi- ble ; 5 Mon. 216 ; See 3 Stark. Ev. 1580. M. for W. in the middle name, does not vitiate ; 3 Pet. 6. The Law knoAvs no middle name, 14 Pet. 322. A Declaration in the name of "Stothard & Starlley," is good on Error, for whether one has a chris- tian and sirname is a question of fact, and the Law will not presume two names ; 6 Litt. 209. But See 3 Blackf. 322; 4 do. 50,319. If one executes a paper in a wrong name, he must be sued in that name ; 5 • Blackf. 60. A Declaration on an instrument as joint when it is joint and several, is good ; 5 Blackf. 67. If, in any instrument, the christian name of a party is designated by ini- tials, or contraction, such designation may be used instead of stating the christian name in full; Ohio Stat. vol. 43, § 5 ; See Pleas in Matement. One improperly made, a defendant may be struck out of the writ and declaration ; 7 Mass. 291. Any unincorporated company, as- sociation, or partnership, may sue or be sued, in the name they may have assumed, or be known by, without designating the individuals ; Ohio Stat, voh 44, p. 66 ; See Pleas in Matement, post. (b) If the Note purport to be made at a place other than where the suit is brought, then say, " at Nciv York, to wit, at the county " aforesaid.'''' But where no venue is alledged, ex- cept in the 7nargin, and no place is alledged at which the instrument was executed, it is no variance if the in- ASSUMPSIT. 47 Declarations — Promissory Notes. date thereof, which period has now elapsed, and the said C. D. then and there, in consideration of the premises, promised to pay the a- mount of the said note to the said A. B. according to the tenor and etiect thereof." Yet the said C. D. hath disregarded his promises, and hath not paid the said sum of money, or any part thereof; to the damage of the said A. B. — dollars [the amount stated in the lorit ; or in cases of Appeal or Certiorari, an amount sufficiently large to cover the plaintiff's demand,^ and thereupon he brings suit, &C.'' By T., his Att'y. strament produced in evidence bear date at a different place from that in which the venue is thus laid; 13 Johns. 449. Nor is it any variance to alledge that an instrument, which has no place of date, w^as made at a particular place, and it is proved to have been made at a different place; 16 Pick. 381 ; See 3 Camp. 303 ; Bayley on Bills, 267. But on a note payable at a certain place the Decla- ration ought so to alledge it ; 14 Pet. 43. On a note payable at a partic- ular place, it is not necessary to aver a demand at that place ; but if the averment be made it must be proved; 1 Ohio Rep, 483. (c) Here insert the Cominon Counts, thus : " And also for, that whereas the said C. D., on at was indebted to the said A. B. dollars, for the price and value of goods, then and there bar- g-ained and sold by the plaintiff to the defendant, at his request," &c. \_Add the other Cortmon Counts, ^3nte. 36, and conchfde as therein directed.^ (d) Whether a note be negotiable or not, the consideration need not be set out; 1 Ohio Rep. 115; 6 do. ^9. A note mutilated and partly lost may be declared on as entire; 2 Ohio Rep. 13. Where the note is lost after Declaration filed, parol evidence of its contents is admissible; 9 Wheat. 597. An action at Laiv lies on a note lost after due ; 15 Ohio Rep. 242; and in Mass. before due, on giving bond of indemnity to the sat- isfaction of the Court; 16 Pick. 315. A note for 25, 17 shillings 3 pence, is construed to mean 25 pounds, 24 Eng. Com. Law. Rep. 421 ; S. P. 10 Wend. 93. "I, John Conner, promise to pay A. Ferris 50 £., or his order. Dated June 24, 1808. (Signed) John Corner or else Henri/ Bond," is not a promissory note with- in the statute of c^nne; 6 Eng. Com. Law Rep. 563. A note for $2500, indorsed by the payee for only $750, is construed to be a note for $750 ; 17 Wend. 431. A Bill payable in " gold and sil- ver," means coiii, not bars, or old spoons; 8 Dana, 190. A note paya- ble " in the currency of Zanesville," means in current money, 1 Ohio Rep. 115; S. P. 16 Ohio Rep. 5. What alterations will avoid a note, See 4 Blackf. 468 ; 17 Wend. 240. After judgment against one of two joint makers of a note, the other cannot be sued ; 5 Blackf. 558. 48 ASSUMPSIT. Declarationa — Promissory Notes. No. 2, Indorsee vs. Maker. [Proceed as in No. 1, Ante. 46, to the (*) — the said C. D. on — at — made his promissory note in writing, and then and there dehvered the same to E. F. and thereby promised to pay the said E. F. or order — dollars in — days after the date thereof, which period has now elapsed, and the said E. F. then and there indorsed the same to the said A. B.,'' whereof the said C. D. then and there had notice, and then and there, in consideration of tiie premises, promised to pay the amount of the said note to the said A. B. according to the tenor and effect thereof. [Conclude as in No. 1. Ante. 46.] No. 3. Partners vs. Maker}' [Commence as in No. 1., Ante. 46, — A. and B. partners in trade, under the name of A. and Co. complain of C. D. in a plea of assumpsit, for that whereas, the said C. D. on — at — made his promissory note in writing, and delivered the same to the said A. and B. and thereby promised to pay to the said A. and B. by the said name of their firm of A. and Co. — Dollars in — days after the date thereof, which period has now elapsed, and the said C. D. then and there in consideration of the premises promised to pay the (a) An indorsement of a note pay- Caine's Rep. 192; 4 T. R. 471; able to bearer is not necessary — A See post. No. 53. And where a delivery is enough ; 2 Ohio Rep. note was indorsed by a surviving 227. An indorsement with a pencil partner, it was held on Special De- is good; 11 Eng. Com. Law Rep. murrer that the declaration need not 213. Blank indorsement may be state whom the partner survived, or filled at any time; 11 Pet. 80; 9 who comprised the Firm ; 8 Wheat. Ohio Rep. 139 ; See 13 Ohio Rep. 642. Every indorsement of a bill is 228; 17 Wend. 214. The omis- anew contract, and each indorser sion to state the plaintiff's title, by becomes to the subsequent holder, a showing the indorsement to him, new drawer; 10 Ohio Rep. 180 ; 15 would be fatal, even after verdict. Ohio Rep. 130. If however there be several indorse- ments, all need not be set out, and (b) For Declarations by and against such as are omitted may be struck Partners for goods sold, &c.. See out at the trial. Nor is it necessary Post. to give the names of individuals Partners may sue or be sued in composing a partnership. An aver- the name of the Firm, without de- ment that A. B. " and Co." made or signating the names of the individ- indorsed a note is sufficient ; 8 uals ; Ohio Slat. vol. 44, p. 66 ; See Wheat. 642; 3 Wend. 229; 1 Pleas in Matement,lSo. 4,note (a). ASSUMPSIT. 49 Declarations — Promissory Notes. amount of the said note to the said A. and B. by the said name of their firm of A. and Co. according to the tenor and effect thereof : [Conclude as in No. 1., Ante. 46.] No. 4. Payee v. Partners. [Commence as in No. 1." Ante. 46. — A. B. complains of C. and D. for that whereas on — at — the said C. and D. were partners in trade, under the name of C. and Co. and so being partners, the said C. and D. on — at — made a certain prom- issory note in writing, and delivered the same to the said A. B. and thereby under the name of the said firm of C. and Co. promised to pay to the said A. B. — Dollars in — days after the date thereof, which period has now elapsed, and the said C. and D. under the name of the said firm of C. and Co. then and there in consideration of the premises, promised to pay the amount of the said note to the said A. B. according to the tenor and effect thereof: [Conclude as in No. 1., Ante. 46.1 No. 5. Indorsee v. Indorser. [Proceed as in No. 1 . Ante. 46, to the (*) — one E. F. on — at — made his promissory note in writing, and thereby promised to pay to X. Y. or order — Dollars in — days after the date thereof, which period has now elapsed, and then and there delivered the said note to the said X. Y. and the said X. Y. then and there indorsed the same to the said C. D. and the said C. D. then and there indorsed the same to the said A. B. [or, and the said C. D. then and there indorsed the same to Q. R. and the said Q. R. then and there indorsed the same to the said A. B.] and the said E. F. did not pay the amount thereof, although the same was there presented to him on the day when it became due ; of all which the said C. D. then and there had due notice. And whereas the defend- ant afterwards, on &-c. in consideration of the premises, then and there promised to pay the amount of said note to the said A. B. on request: [Conclude as in No. 1. Ante. 46.] (a) If the suit be against a survi- D. disregarded their promise and ving partner, say, " For that whereas did not pay said sum of rnoney or the said C. and one D. then living, any part thereof to the said A. B. but since deceased, were partners," nor hath the said C. since the death &c., and conclude; "yet the said of the said D. paid the same or any C. and D. in the life time of the said part thereof," &c. 50 ASSUMPSIT. Declarations — Promissory JNotee No. 6. Indorsee v. Executor of Maker. I Commence as in No. 1. Ante. 46. — A. B. complains of C. D. as Executor of E. F. deceased, in a plea of assumpsit, for that whereas the said E. F. in his life time, on — at — made his promissory note in writing, and thereby promised to pay to X. Y. or order — Dollars in — days after the date thereof, which period has now elapsed, and then and there delivered the said note to the said X. Y. and the said X. Y. then and there indorsed the same to the said A. B. whereof the said E. F. then and there had notice, and then and there in consideration of the premises, promised to pay the amount of said note to the said A. B. according to the tenor and effect thereof; yet the said E. F. in his life time disregarded his promises and did not pay the amount of said note or any part thereof, nor has the said C. D. as his Executor, since his death paid the same or any part thereof; To the damage, &c. [Conclude as in No. 1. Ante. 46.] The following averments, of want of effects, and, that the maker could not he found, may be used according to circumstances. — And the said A. B. avers, that at the time of making said prom- issory note, and at the time when the same was presented for payment as aforesaid, the said E. F. \the m,aker\ had not in his hands any effects of the said W. nor had the said E. F. received any considera- tion from the said W. for making or paying said note ; but the said E. F. made the said note for the accommodation, and at the request of the said W. and the said W. hath not sustained any damages by reason of his not having had notice of the non-payment by the said E. F. of the amount of said note, &c. — And the said A. B. avers, that when the said note became due, on — diligent search and inquiry was made after the said E. F. at — [where the note was payable,^ that the said note might be presented to him for payment, but the said E. F. could not be found, nor did he then, or at any time before or since, pay the amount of the said note, &c. No. 7. Indorsee V. Payee or other Indorser ; 1 Chitt. Prec. 153. Proceed as in No, 1. Ante. 46, to the (*) — one E. F. on — at — made his promissory note in writing, and thereby promised to pay to the defendant (^or G. H.) or order — Dollars two months after the date thereof, which period has now elapsed ; and the defendant (or G. H.) ASSUMPSIT. 51 Declarations — Promissory JMotes. then indorsed the said note (to J. J., who then indorsed and deUvered the same) to the said plaintiff; and the said E. F. did not pay the amount of tiie said note, although the same was presented to him on the day when it became due, of all which the defendant then had due notice. Yet, &c. [Conclude as in No. I. Ante. 46.] No. 8. Payee v. Maker, where the Note, in the body of it, is made payable at a particular place ; 1 Chitt. Prec. 153.* [Proceed as in No. 1 . Ante. 46, to the (*) — the defendant on — at — made his promissory note in writing, and delivered the same to the plaintiff, and thereby promised to pay to the plaintiff at Messrs. E. b\ and Co., Lombard Street, — Dollars, two months after the date thereof, which period has now elapsed ; and the defendant hath not paid, or caused to be paid, the amount of the said note, or any part thereof, although the said note was afterwards, to wit : on the day when it became due, presented at the said Messrs. E. F. and Co., Lombard Street, for payment tiiereof. Yet, &.C. [Conclude as in No. 1. Ante. 46.] No. 9. The like, where the Place is mentioned only at the Foot, or in the Margin of the Note ; 1 Chitt. Prec. 1 54. [Proceed as in No. 1 . Ante. 46, to the (*) — ■ the defendant on — at — made his promissory note in writing, and deUvered the same to the plaintiff, and thereby promised to pay to the plaintiff — Dollars, two months after the date thereof, which period is now elapsed ; and the said defendant then made the said note payable at Messrs. E. F. and Co., Lombard Street;^ [Con- clude as i7i No. 1. Ante. 46. J (a) As to the necessity of a pre- such demand is necessary, but if sentment and demand at the place, averred in the declaration it must be See Chitty Jun. on Bills, 1453 ; 6 proved ; 1 Ohio Rep. 156. Eng. Com. Law Rep. 53, 63 ; 14 East. 500 ; 2 Pet. 543, 483 ; 8 Cow- (b) No averment of presentment en 271 ; 15 Pick. 213. In Ohio no is necessary; Chit, on Bills, 23. ASSUMPSIT. Declkranons — Promissorr Notes. No. 10. Payee v. ^ faker where the Xote is payable on demand, or after yoHce; 1 Chitl. Prec. 154.* [Proceed as in Xo. 1. Ante. 46. to the {^) — the defendant on — at — . made his promissory note in writing, and dehvered the same to tlie plaintiff, and thereby promised to pay to the plaintiff on demand — dollars : and tlie plaintiff avers that afterwards, to wit : on — payment of the said note was demanded by him of the de- fendant, (jy payable after notice, state the note accordingly, and instead of the demand, aver, that afterwards, to wit : on — no- tice was given by the plaintiff' to the defendant to pay the said sum of money at the expiration of — then next, according to the tenor and effect of said note, and the time for payment thereof hath elapsed. [Conclude as in Xo. 1. Ante. 4G.] _Vo, 11. Payee \. Maker of a Xote payable by Installments when tht icholt &um is dm : 1 Chitt. Prec. 154. [Proceed as in _Ao. i. Awe. 4.6. to the i^*) — the defendant on — at — made his promissory note in writing, and delivered the same to the plaintiff, and thereby promised to pay to the plaintiff 500 dollars in the manner following, viz : 100 dollars on the 1st day of February, in the year aforesaid ; 100 dollars on the 1st day of March, in the year aforesaid, and the remainder of said sum of 500 dollars on the 1st day of April, in the year aforesaid : all which periods have now respectively elapsed. [Conclude as in J\o. 1. Ante. 46. J _Vo. 1-2. The like, when the times for payment of some only of the Installments have elapsed : 1 Chitt. Prec. 154. [Proc4:ed as in _Vo. 1. Ante. 4(3. to the [*) — the defendant on — at — made his promissory note in writing, and delivered the same to the plaintiff, and thereby promised to pay to the plaintiff 500 dollars in manner following, viz : 100 dollars on the 1st dav of Feb- ruary, in the year aforesaid : 100 dollars on the 1st day of March, in the year aforesaid, and the remainder of the said sum of 500 dollars (a) A Demand seems unnecessa- allowed only from the time of the ty: IJ. Chiny. Jr. 154, n, (m) ; 7 Demand; I'Liti. 160; 6 Dana, 7; Eng. Com. Law Rep. -2:37 : Chit, on See. also. 17 Ves. 2S. A'oiice is es- CMitracis. 73-2. In Kemucky, a De- sendal ; 1 J. Chiuy, Jr. 154. n. (m.) mand must be made ; and interest is ASSUMPSIT. 53 Declarations — Promissory Notes. on the 1st day of April, in the year aforesaid, and although the peri- ods for payment of the said first and second installments (the install- ments in arrear.) have respectively elapsed, the defendant hath not paid the same, or either of them, or any part thereof. [ Conclude as in No. 1, Ante. 46.] No. 13. Bearer v. Maker, on a ^ote payable to E. F. or Bearer : 1 Chitt. Prcc. 155. [Proceed as in No. 1, Ante. 46, to the (*) — the defendant on — at — made his certain promissory note in writing, and there- by promised to pay E. F. or bearer — dollars, two months after the date thereof, which period has now elapsed ; and the said E. F. then delivered, transferred, and assigned the said note to the plaintifl^, and he then became and was, and is the lawful Bearer thereof; and the defendant, in consideration of the premises, then promised to pay the amount of the said note to the plaintiff, according to the tenor and effect thereof. [Conclude as in No. 1, Ante. 46.] No. 14. Indorsee \. Payee, being Indorser, who had not due No- tice of Dishonor, but had n> effects with the Maker; 1 Chitt. Prec. 156. [Proceed as in No. 1, Ante. 46, to the (*) — one E. F. on — at — made his promissory note in writing, and thereby promised to pay to the defendant (or G. H.) or order — dollars, two months after the date thereof, which period has now elapsed ; and the de- fendant {or G. H.) then indorsed the said note (to J. J. ivho then indorsed and delivered the same) to the plaintiff'; and the said E. F. did not pay the amount of the said note, although the same was presented to him on the day when it became due ; and the plaintiff' avers that when the said note was made, and from thence until and at the time when the same became due and was so presented for pay- ment, the said E. F. (the maker) had not in his hands any effects of the defendant, nor was there at any time any consideration or value for the said E. F.'s making the said note, or paying the amount of the same, or any part thereof, (and the said note was made for the accommodation and at the request of the defendant, if the fact be so,) nor hath the defendant sustained any damage by reason of his not having had notice of the non-payment of the said note. [Conclude as in No. 1, Ante. 46.] 54 ASSUMPSIT. Declarations — Promissory Notes. No. 15. Payee v. Maker, on a note payable in Trade, {Proceed as in No. 1, Ante. 46, to the (*) — the said C. D. on, — at — made his certain note in writing, and deUvercd the same to the said A. B. and thereby for value received,"^ promised to pay and dehver to the said A. B. or order, 500 bushels of wheat at — on or before — then next ensuing, which period has now elapsed ; and the said A. B. avers that the said wheat at said time and place of delivery was worth — dollars per bushel, and that he was then and there ready to receive the same ; yet the said C. D. did not then and there, nor hath he at any time before or since, delivered the said wheat or any part thereof ; to the damage, &c. [ Conclude as in No. 1, Ante. 46.] No. 16. The like, the price being agreed upon. [Proceed as in No. 1, Ante. 46, to the (*) — the said C. D. on — at — made his certain note in writing, and delivered the same to the said A. B. and thereby, for value received,'' promised to pay to the said A. B. or order, five hundred dollars, in wheat, at fifty cents per bushel, to be delivered to the said A. B. at — on or before — then next ensuing, which period has now elapsed ; and although the said A. B. was then and there ready to receive the said wheat ; yet the said C. D. did not then and there, nor hath he at any time before or since, delivered the said wheat, or any part thereof : to the dam- age, &c. [Conclude as in No. 1, Ante. 46.] No. 17. Executor or Administrator of Payee v. Maker; 1 Chitt. Tree. 156. [Commence as in No. 1, Ante. 46.] A. B. Executor of the last will and testament of E. T., deceased, or Administrator of all and (a) A Declaration upon a note not proved. And in such case, the store, negotiable, ox payable in specific ar- shop, mill, or farm house of the Ma- ticles, need not set out the consider- ker, at which the commodity or ar- ation ; and the rule, ii seems, is the tide is presumed, from its nature same whether the note contain the and the business of the Maker of words, "for value received," or not ; the note, to be kept, is the place 1 Ohio liep. 11.5; 6 Ohio Kep.21^d. where the demand must be made; If a note payable in specific articles 2 Kent Com. 505; See Chipman on is silent as to the place of delivery, Contracts, 49; 20 TVend. 196; 1 and contains a promise to deliver or Black/. 170; 4 TVend. 379; Story pay, on demand or on request, a de- on Contracts, 319. mand must be specially averred and ASSUMPSIT. 55 Declarations — Promissory Notes. singular the goods, chattels and credits, which were of E. F., deceas- ed, at the time of his death, who died intestate, by S. S. his attornej', complains of C. D. in a plea of assumpsit, for that whereas the de- fendant on at made his promissory note in writing, and delivered the same to the said E. F. in his life time, and thereby promised to pay to the said E. F. dollars, two months after the date thereof, which period has now elapsed, and the said C. D. then and there in consideration of the premises, promised to pay the amount of the said note to the said E. F. according to the tenor and effect thereof; and whereas also the defendant, in the lifetime of the said E. F., to wit : on at was indebted to the said E. F. in dollars, for the price and value of goods and chattels sold and delivered by the said E. F. to the defendant, at his request : And in, &c. [Add the other Common Counts, Ante. 36, and conclude as follows ;] And the defendant afterwards, in the life time of the said E. F., to wit : on last aforesaid, in consideration of the premises respectively, promised to pay the said last mentioned moneys, respectively to the said E. F. on request : yet he hath disregarded his promises, and hath not paid any of the said moneys or any part thereof to the said E. F. in his life time, or since his death to the said plaintifl', executor, or administrator, as aforesaid : To the plaintift^'s damage as executor, or administrator, as aforesaid dollars, and therefore he sues, &c. : And the plaintifi' brings into Court here his Letters Tes- tamentary, or his Letters of Administration, which give sufficient evidence to the Court that he is Executor or Administrator of the said E. F. deceased. No. 18. Payee v. Executor, or Administrator, of Maker ; 1 Chitt. Free. 156. [Commence as in No. 1. Ante. 46.] — A. B. complains of C. D. Administrator of J. S. deceased: or, Executor of the last will and testament of J. S., deceased, in a plea of assumpsit, for that whereas the said J. S. in his life time, to wit : on — at — made his promis- sory note in writing, and delivered the same to the plaintiff, and thereby promised to pay to the plaintiff — dollars, two months after the date thereof, which period has now elapsed ; and the said E. F. in his life time, to wit : on the day and year last aforesaid, in con- sideration of the premises, promised to pay the amount of the said note to the said A. B. according to the tenor and effect thereof: and whereas also the said E. F. in his life time, to wit : on — at — was indebted to the plaintiff in the sum of — dollars for the price and value of goods and chattels sold and delivered by the said plaintiff to the said defendant, at his request: and in, &,c. ]Add the other Common Counts, Ante. 36, and conclude as follows,] and the said J. S. in his life time, to wit : on the day and year last aforesaid in 56 ASSUMPSIT. Declarations — Promissory Notes. consideration of the premises respectively, promised to pay the last mentioned moneys respectively to the plaintiff on request :* yet the said J. S. in his life time, and the defendant, executor or adminis- trator as aforesaid, since the death of the said J. S. have respectively disregarded the said promises, and neither of them hath paid any of the said moneys, or any part thereof. To the plaintiff's damage — dollars, and therefore he sues, &c. No. 1 9. The like, adding a Count upon a Promise by the Admin- istrator ; 1 Chitt. Prec. 46, 1 56. [Proceed as in the last Form to the (*) — and the said moneys being unpaid, the defendant as administrator as aforesaid, after the death of the said J. S., to wit : on — at — promised the plaintiff to pay him the said sums of money on request, yet the said J. S. in his life time, and the defendant as administrator as aforesaid, since the death of the said J. S. have respectively disregarded the said prom- ises, and neither of them hath paid any of the said moneys, or any part thereof. To the damage, &c. No. 20. The like, adding a Count on a cause oj Action arising after the Intestate' s death ; 1 Chitt. Prec. 46, 156. [Proceed as in No. 18, Ante. 55, to the * — And also for that whereas the defendant as administrator as aforesaid, on — at — was indebted to the plaintiff in — Dollars for money paid by the plaintiff for the use of the defendant, as administrator as aforesaid, at his request ; and in — dollars for money found to be due from the defendant, as administrator as aforesaid, to the plaintiff, upon an account stated between the plaintiff and the defendant, as adminis- trator as aforesaid ; and the defendant, as administrator as aforesaid, in consideration of the premises, afterwards, on the day and year aforesaid, promised the plaintiff to pay him the said sums on request ; yet the said J. S. in his life time, and the defendant, administrator as aforesaid, since the death of the said J. S. have respectively disre- garded the said promises, and neither of them hath paid any of the said moneys, or any part thereof. To the damage, &c. No. 21. Surviving Payee v. Maker. I Chitt. Prec. 157. Proceed as in No. 1 . Ante. 46, to the * — the defendant in the life time of one E. F. since deceased, to wit, on — at — made his promissory note in writing, and delivered the same to the plaintiff ASSUMPSIT. 57 Declarations — Bills of Exchange. and the said E. F. since deceased, and thereby promised to pay to the plaintiff and the said E. F. — dollars, two months after the date thereof, which period has now elapsed. [Conclude as in No. 1. Ante. 46.] No. 22. Husband and Wife v. MaTter, on JSote j^ayable to the Wife befo7'e Marriage. 1 Chitt. Free. 157. [Commence as in No. 1. Ante. 46.] A. B. and Mary his wife complain of C. D. in a plea of assumpsit, for that whereas the defendant, whilst the said Mary was sole and unmarried, to wit, on — at — made his promissory Note in writing, and delivered the same to the said Mary, and thereby promised to pay to the said Mary — dollars two months after the date thereof, which period has now elapsed, and the said C. D. then and there, in consideration of the premises, promised to pay the amount of the said note to the said Mary according to the tenor and effect thereof: And also for that whereas the said C. D. was indebted to the said Mary whilst she was sole and unmarried, in the sum of — dollars, for the price and value of goods, then and there bargained and sold by the said Mary to the said C. D. at his request; and in, 6lc. [Add the other Common Counts Ante. 36, laying the indebtedness to the said Mary whilst sole and unmarried] and conclude as follows — And the said C. D. afterwards, on — in consideration of the premises, then and there promised to pay the said last mentioned several sums of money to the said Mary whilst she was sole and unmarried, on request; yet the said C. D. hath disregarded his promises and hath not paid any of the said money, or any part thereof, to the said Mary whilst she was unmarried, or to the plaintiff, or either of them, since their inter- marriage. To the damage, &c.* Bills of Exchange. No. 23. Drawer, being also Payee, v. Acceptor. [Proceed as in No. 1. Ante. 46, to the (*) — the said A. B. on — at — made his bill of exchange in writing, and directed the same to the said C. D. and thereby required the said C. D. to pay to the said A. B. — Dollars in — days after the date, or, sight, thereof (a) The promise may be charged sue alone on a Bill to the wife d?mi as made to the plaintiffs since their sola, See, Macneilage v. Halloway, intermarriage, and the debt as due 1 B. & A. 218 ; Richards v. Rich- to the wife dum sola; 1 J. Chitty, ards, 2 B. & A. 447. .Tr. 89. When the husband may 58 ASSUMPSIT. Declarations — Bills of Exchange. which period has now elapsed ; and the said C. D. then and there accepted tlie said bill, and promised the said A. B. to pay the same according to the tenor and effect thereof, and of his acceptance thereof, but did not pay the same when due : Yet, &,c. [ Onclude as in No. 1. Ante. 46.] No. 24. Drawer, nt being Payee, v. Acceptor. [Proceed as in No. 1. Ante. 46, to the (*) — the said A. B. on — at — made his bill of exchange in writing, and directed the same to the said C. D. and thereby required the said C. D. to pay to C. P. or order — Dollars in — days after the date, or, sight, thereof, which period has now elapsed, and then and there delivered the same to the said C. P. and the said C. D. then and there accepted the same, and promised the said A. B. to pay the same according to the tenor and effect thereof, and of his said acceptance thereof, yet he did not pay the amount thereof, although the said bill was there presented to him on the day when it became due ; and thereupon the same was then and there returned to the said A. B. of all which the defendant then and there had notice : Yet, &c. [Conclude as in No. 1. Ante. 46.] No. 25. Indorsee v. Accept r. [Proceed as in No. 1. Ante. 46, t) the (*) — one E. F. on — at — made his bill of exchange in writing, and directed the same to the said C. D. and thereby required the said C. D. to pay to the said E. F. or G. H. or order — dollars in — days alter the date or sight thereof, which period is now elapsed, and the said C. D. then and there accepted the said bill, and the said E. F. or G. H. then and there indorsed the same to T. S. and the said T. S. then and there indorsed the same to the said A. B."" of all which the said C. D. then and there had due notice, and then and there promised the said A. B. to pay the amount thereof, according to the tenor and effect thereof, and of his acceptance thereof: Yet, &,c. [Conclude as in No. 1. Ante. 46.] No. 26. Payee v. Acceptor. * [Proceed as in No. 1. Ante. 46, to the (*) — one E. F. on at — made his bill of exchange in writing, and directed the same to the said C. D. and thereby required the said C. D. to pay to the said (a) For general rules regulating indorsements, See Ante. 48, No. 3, n. (a.) ASSUMPSIT. 59 Declarations — Bills of Eschanore. A. B. — Dollars in — days after the date, or, sight, thereof, which period has now elapsed ; and the said C. D. then and there accepted the same, and promised the said A. B. to pay the same according to the tenor and efiect thereof, and of his acceptance thereof: Yet, &c. [Omclude as in No. 1. Ante. 46.] No. 27. Payee on non-acceptance v. Drawer} [Proceed as in No. 1. Ante. 46, to the (*) — the said C. D. on — at — made his bill of exchange in writing, and directed the same to T. S. and thereby required the said T. S. to pay to the said A. B. — dollars — days after the date, or, sight, thereof, and then and there delivered the same to the said A. B. and the same was then and there presented to the said T. S. for acceptance, and. the said T. S. then and there refused to accept the same ; of all which the said C. D. then and there had due notice ; and whereas the said C. D. afterwards, on — &c. in consideration of the premises, then and there promised to pay the amount of said bill to the said A. B. on request, yet he hath disregarded his promises, and hath not paid the amount of said bill, or any part thereof. To the damage, &c. [Con- elude as in No. 1. Ante. 46.] No. 28. Indo7'see, on non-acceptance, v. Drawer. Proceed as in No. 1 . Ante. 46, to the (*) — the said C. D. on — at — made his bill of exchange in writing, and directed the same to T. S. and thereby required the said T. S. to pay to the order of the said C. D. — Dollars in — days after the date or, sight, thereof, and the said C. D. then and there indorsed the same to the said A. B. [or, the said C. D. then and there indorsed the same to L. M. and the said L. M. then and there indorsed the same to the said A. B.\ and the same was then and there presented to the said T. S. for acceptance, and the said T. S. then and there refused to accept the same ; of all which the said C. D. then and there had due notice : and whereas, &c. [Conclude as in No. 27.] (b) When and How to be pre- presented for acceptance ; 2Pe^. 178. sented for acceptance ; 17 Wend- Suit may be brought immediately 368. A Bill on time need not be on non-acceptance ; 1 1 Pet. 80. CO ASSUMPSIT. Declarations — Bills of Exchange. No. 29. Indorsee, on non-acceptance, v. Inchrser. [Proceed as in No. 1, Ante. 46, to the (*) — one N. O. on — at — made his bill of exchange in writing, and directed the same to P, Q. and thereby required the said P. Q. to pay to his order — dollars in — days after the date, or, sight, thereof, and the said N. O. then and there indorsed the said bill to the said C. D., and the said C. D. then and there indorsed the same to the said A. B., and the same was then and there presented to the said P. Q. for acceptance, and the said P. Q,. then and there refused to accept the same ; of all which the said C. D. then and there had notice ; and whereas, &c. [Conclude as in No. 27, Ante. 59.] No. 30. Indorsee, on non-acceptance, v. Payee. [Proceed as in No. 1, Ante. 46, to the (*) — one N. C. on — at — made his bill of exchange in writing, and directed the same to P. Q,. and thereby required the said P. Q. to pay to the said C. D. or order — dollars in — days after the date, or, sight, thereof, and then and there delivered the same to the said C. D. and the said C. D. then and there indorsed the said bill to the said A. B. and the same was then and there presented to the said P. Q. for acceptance, and the said P. Q. then and there refused to accept the same ; of all which the said C. D. then and there had due notice: and whereas, &c. [Conclude as in No. 27, Ante. 59.] Directions for Declarations on Bills where the action is brought after the time of payment expired ; Schedule of Forms, 20 Eng. Com. Law Rep. 327. I. On bills payable after date. If the declaration be against any party to the bill except the drawer or acceptor, and the bill be payable at any time after date, and the action not brought till the time is expired, it will be necessary to in- sert, as in declarations on promissory notes, immediately after the words denoting the time appointed for payment, the following words, viz : which period has now elapsed ; and instead of averring that the bill was presented to the drawee for acceptance, and that he refused to accept the same, to alledge that the drawee [naming him] did not pay the said bill, although the same was presented to him on the day ivhen it became due. ASSUMPSIT. 61 Declarations — Bills of Exchange. 11. On bills payable after sight. If the declaration be against any party except the drawee or ac- ceptor, and the bill be payable at any time after sight, it will be ne- cessary to insert after the words denoting the time appointed for payment, the following words, viz : and the said drawer [naming him] then and there saw and accepted the same, and the said period has now elapsed ; and instead of alledging that the bill was presented for acceptance and refused, to allege that the drawer [naming him] did not pay the said bill, although the same was presented to him on the day when it became due. No. 31. Indorsee \ . Drawer — Default Payment by Drawee; 1 Chitt. Prec. 78. [Proceed as in No. 1. Ante. 46, to the (*) — the defendant on — made his bill of exchange in writing, and directed the same to one G. H., and thereby required the said G. H. to pay to the defendant or order — dollars, two months after the date thereof, which period is now elapsed ; and the defendant then indorsed the said bill to one K. L., who then indorsed the same to M. N., who then indorsed the same to the plaintiff; and the said G. H. did not pay the said bill al- though the same was presented to him on the day when it became due ; of all which the defendant then had due notice. [ Conclude as in No. 1, Ante. 46.] No. 32. Indorsee v. Indorser — Default Payment by Drawee ; 1 Chitt. Prec. 29. [Pi'uceed as in No. 1, Ante. 46, to the (*) — one E. F. on — made his bill of exchange in writing, and directed the same to one G. H. and thereby required the said G. H. to pay to the said E. F. or order — dollars, two months after the date thereof, which period has now elapsed ; and the said E. F. then indorsed the said bill to the defendant, who then indorsed the same to [one J. K., who then indorsed and dehvered the same to] the plaintiff; and the said G. H. did not pay the said bill although the same was presented to him on the day when it became due ; of all which the defendant then had due notice. [Conclude as in No. 1, Ante. 46.] 63 ASSUMPSIT. Declarations — Bills of Exchange. No 33. Indorsee v. Drawee or Indorser on hill payable after sight ; 1 Chitt. Prec. 79. [Proceed as in No. 1, Ante. 46, to the (*) — the defendant [or " one O. P."] on made his bill of exchange in writing, and di- rected the same to one E. F., and thereby required the said E. F. to pay to him, the said defendant [i r " the said O. P."] or order dollars, [two months] after sight thereof; and the said E. F. then [or " afterwards, to wit : on the day of , in the year afore- said,"] saw and accepted the same, and the said period has now elapsed ; and the defendant [or '' O. P."] then indorsed the said bill to one G. H. [or " to the defendant,"] who then indorsed the same to one J. K. who then indorsed the same to the plaintifT; and the said E. F. did not pay the said bill although the same was presented to him on the day when it became due ; of all which the defendant then had due notice. [ Conclude as in No. 1 , Ante. 46.] No. 34. Indorsee v. Acceptor on Bill payable at a Bankers, and not elsewhere ; 1 Chitt. Prec. 79.^ [Proceed as in No. 1 , Ante. 46, to the (*) — one E. F. on made his bill of exchange in writing, and directed the same to the defendant and thereby required the defendant to pay to the said E. F., or order, dollars, two months after the date thereof, which period hath now elapsed ; and the defendant then accepted the said bill, payable at [Messrs. G. & H., Bankers, London, and not other- wise or elsewhere ;] and the said E. F. then indorsed the same to one I. K., who then indorsed the same to one L. M., who then indorsed the same to the plaintiff; and the defendant then promised the plain- tiff to pay him the amount of the said bill, according to the tenor and effect thereof, and of the said acceptance and indorsements ; but neither the defendant nor the said Messrs. G. & H., nor any person or persons on behalf of the defendant, did or would pay the said bill, or any part thereof, according to the tenor and effect thereof, and of said acceptance, or otherwise, although the said bill was presented for payment at the said Messrs. G. & H., Bankers, London, aforesaid, that is to say, on the day when it became due, [of all which the said defendant then and there had notice.] [Conclude as in No. 1, An- te. 46.] (a) When a note is payable at a the declaration, it must be proved ; certain place, no demand is necessa- 1 Ohio Hep. 156; See 3 Wend. 11; ry ; but if a demand be alledged in 15 Pick. 212; 17 Johiis. 248. ASSUMPSIT. 63 Declarations — Bills of Exchange. No. 35. Indorsee v. Drawer on Bill payable at a Banker's and not elsewhere ; 1 Chitt. Prec. 80. [Proceed as in No. 1, Ante. 46, to the (*) — the defendant, on — made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the defendant or order, — dollars two months after the date tliereof, which period hath now elapsed ; and the said E. F. then and there accepted the said bill, payable [at Messrs. G. & H., Bankers, London, and not otherwise or elsewhere ;] and the said defendant then indorsed the said bill to [one I. K., who then indorsed and delivered the same to] the plaintiff; and neither the said E. F. nor the said Messrs. G. &, H., nor any person or persons on behalf of the said E. F., did or would pay the said bill, although the same was presented for pay- at the said Messrs. G. & H., Bankers, London, aforesaid, on the day when it became due ; of all which the defendant then and there had due notice. [Conclude as in No. 1, Ante. 46.] No. 36. Drawer V. Acceptor on Bill accepted payable on a contin- gency ; 1 Chitt. Prec. 8L [Proceed as in No. 1, Ante. 46, to the (*) — the plaintiff on — made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the plaintiff or order — dollars, two months after the date thereof, which peri- od has now elapsed ; and the defendant then accepted the said bill payable [when he, the said defendant, should have received the debt due to him from G. H.] [fullowing the Wii^ds of the acceptance ;] and the plaintiff saith, that the defendant afterwards, to wit : on — received the said debt, to wit : the sum of — dollars, so due to him from the said G. H. ; and the defendant then promised the plain- tiff to pay the said bill according to the tenor and effect thereof, and of the said acceptance thereof. [Conclude as in No. 1, Ante. 46.] No. 37. Indorsee v. Drawer, where JSotice of dishonor was not given, but Drawer had no effects in the Drawee's hands ; 1 Chitt. Prec. 81. [Proceed as in No. 1, Ante. 46, to the (*) — the defendant on — made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the defendant or order — dollars, two months after the date thereof, which period has now elapsed ; and the defendant then indorsed and delivered the 64 ASSUMPSIT. Declarations — Bills of Exchange. said bill to the plaintiff; and the said E. F. did not pay the said bill, although the same was presented to him on the day when it became due ; and the plaintiff avers, that neither at the time when the said bill was drawn, nor at any time afterwards, and before the said bill became due, nor at the time when the same became due and was so presented for payment thereof as aforesaid, had he the said E. F. in his hands any effects of the said defendant, nor was there any con- sideration for drawing the said bill, or for the acceptance or pay- ment by him, the said E. F., of the amount of the said bill, or any part thereof; nor hath the defendant sustained any damage by rea- son of his not having had notice of the non-payment by the said E. F. of the said bill. [Add a second Count aveiring notice, as Ante. 61, No. 31 ; and conclude as in No 1, Ante. 46.] No. 38. Indorsee v. Drawer, where Drawee loas dead, 1 Chitt. Free. 82. [Proceed as in No- 1, Ante. 46, to the (*) — the defendant, on — made his bill of exchange in writing, and directed the same to one E. F., [by the description of E. F., Esq., Mill Street, Poplar,] and thereby required the said E. F. to pay to the said defendant, or order, — dollars, two months after the date thereof, which period has now elapsed ; and the defendant then indorsed the same [to one G. H., who then indorsed and delivered the same] to the plaintiff: *And the plaintiff avers, that after the making of the said bill, and before the same became due, to wit, on — the said E. F. died, and that, at the time when the said bill became due, [" and at the time this action was commenced," if the fact be so,] no person or persons had proved, or caused probate to be had of the last will or testament of the said E. F., [if any] or become, or qualified] as executor or exec- utors thereof, nor had any letters of administration, or letters testa- mentary, of the estate and effects which were of the said E. F. at the time of his death, been granted to any person or persons, nor had any person or persons administered thereto ; and the plaintiff further saith, that the said bill, when the same became due, to wit, on — was duly presented at Mill Street, Poplar, aforesaid, being the place mentioned in the said bill as the place where the said E. F. resided, or was to be found, and being a place where the said E. F., before, and until his death, was to be met with, to wit, at [&,c.] but that no person or persons did, or would, on such presentment, pay the same ; and the said E. F., did not, in his lifetime, pay the same or any part thereof; of all which the said defendant then and there had due no- tice. [Add a Count not noticing the death of the Draivee, as Ante. 61, No. 31 ; and conclude as in No. 1 , Ante. 46.] ASSUMPSIT. 65 Declarations — Bills of Exchange. No. 39. Indorsee v. Drawer, where tlie Defendant dispensed with Presentment. [Proceed as in the last Form to the (*) except that the address of the drawee need not he stated.] And the plaintiff further saitli, that afterwards when the said bill became due, to wit, on he, the plaintiff, was ready and willing, in due manner, to present the said bill to the said E. F., for payment thereof, and to demand of the said E. F. payment of the said sum of money, therein specified, according to the tenor and effect thereof, and would accordingly have presented the same to the said E. F., and would have demanded payment thereof, [whereof the said defendant then and there had notice ;] but the said defendant then and there requested the said plaintiff, not to i)resent the said bill to the said E. F., for payment thereof, and then and there wholly dispensed with such presentment, and discharged the said plaintiff from presenting the said bill to the said E. F., for payment thereof, and the said E. F. did not pay the sa?ne, or any part thereof; of all which the defendant then had notice, to wit, at said county. [Add Count as No. 31, Ante. 61 ; and con- clude as in No. 1. Ante. 46.] No. 40. Indorsee v. Drawer on Bill dratvn and accepted paya- ble at a particular place. 1 Chitt. Prec. 80. [Proceed as in No. 1 . Ante. 46 to the (*) — the defendant on — made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the said defend- ant or order in London £100 two months after the date thereof, which j>eriod has now elapsed ; and the said E. F. then accepted the said bill payable at Messrs. G. H. and Go's, bankers, London; and the defendant then indorsed the same to [one I. K., who then indorsed and delivered the same to] the plaintiff; and the said E. F. did not, nor did the said Messrs. G. H. and Co., or any person or persons on the behalf of the said E. F., pay the said bill, although the same was presented for payment at the said Messrs. G. H. and Co.'s, bankers, London, aforesaid, on the day when it became due ; of all which the defendant then had due notice. [Conclude as in No. 1. Ante. 46.] 66 ASSUMPSIT. Declarations — Bills of Exchange. No. 4 1 . Executor of Drawer v. Acceptor, laying the promise to the Testator. 1 Chitt. Prec. 83. [Commence as in No. 1. Ante. 46.] — A. B. Executor of the last will and testament of E. F. deceased, complains of C. D. for that whereas the said E. F. in his life time, to wit, on — made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to him the said E. F. or order — dollars two months [or, "^^ days" or "weeks," &c. according to the fact,] after the date thereof, which period has now elapsed ; and the defendant then accepted the said bill, and promised the said E. F., since deceased, to pay him the amount of the said bill, according to the tenor and effect thereof, and of the said acceptance ; and whereas also the defendant, in the life time of the said E. F., to wit, on — was indebted to the said E. F. in — dollars, for the price and value of goods and chattels sold and delivered by the said E. F. to the defendant at his request. [Add the other Common Counts, Ante. 36, inse7'ting "the said E. F." instead o/" "the plaintiff."] And the defendant afterwards in the life time of the said E. F., to wit, on — last aforesaid, in consideration of the premises respectively, promised to pay the said last mentioned moneys respectively to the said E. F. on request; yet he hath disregarded his promises, and hath not paid any of the said moneys or any part thereof to the said E. F. in his life time or since his death to the said plaintiff, executor as aforesaid. To the damage of said plaintiff — dollars and there- fore he sues, &c : And the plaintiff brings into Court here his Let- ters Testamentary which give sufficient evidence to the Court that he is Executor of the said E. F. deceased. No. 42. Executor of Drawer v. Acceptor, laying Promises to the Plaintiff' as Executor. 1 Chitt. Prec. 83. [Commence as in the last Form — For that whereas the said E. F. in his life time, to wit, on — made his certain bill of exchange in writing, and directed the same to the defendant, and thereby required him to pay to him the said E. F. or order — dollars, two months after the date thereof, which period hath now elapsed, and the defendant then accei)tcd the said bill, but did not pay the same when due ; and the said bill being due, and the amount thereof in arrear, the defend- ant, after the death of the said E. F. to wit, on — in consideration of the premises, i)romiscd the plaintiff, as executor as aforesaid, to pay him the amount thereof on request ; and whereas also the said defendant, in the life time of the said E. F. to wit, on — was ASSUMPSIT. 67 Declarations — Bills of Exchange. indebted to the said E. F. in — dollars, for the price and value of goods and chattels sold and delivered by the said E. F. to the defend- ant, at his request, and in [&fc. Add the other Common Counts, Ante. 36.] 'and the said last mentioned several moneys being due and unpaid, the defendant, after the death of the said E. F., to wit, on — in consideration of the premises, respectively promised the plaintiff, as executor as aforesaid, to pay the last mentioned several moneys respectively to the plaintiff, as executor as aforesaid, on request ; yet the defendant hath disregarded his promises, and hath not paid any of the said moneys, or any part thereof, to the plaintiff. To the damage of the plaintiff, as executor as aforesaid, of — dollars, and therefore he brings his suit. &c. [Add Profert as in the last Fo7'7n.] No. 43. Administrator oj Drawer v. Acceptor. 1 Chitt. Prac. 85. [Commence as in No. 1. Ante. 46 — A. B administrator of E. F. complains of C. D. in a plea of assumpsit, for that whereas the said E. F. in his life time, to wit, on — &c. [Proceed as in No. 41, Ante. 66, using the ivord "administrator," instead of "execu- tor," and conclude as therein directed.] No. 44. Drawer v. Executor or Administrator of Acceptor. 1 Chitt. Prec. 85. [Commence as in No. 1. Ante. 46.] — A. B. complains of C. D. administrator of E. F. deceased ; or, executor of the last will and testament of E. F. deceased, in a plea of assumpsit, for that whereas the said plaintiff heretofore, in the life time of the said E. F., to wit, on — made his bill of exchange in writing, and directed the same to the said E. F., and thereby required the said F. F. to pay to him the said plaintiff — dollars two months after the date thereof, which period has now elapsed ; and the said E. F. then accepted the said bill, and promised the plaintiff to pay him the said bill, according to the tenor and effect of the said bill, and the said acceptance f thereof : and whereas also, the said E. F., in his hfe time, to wit, on — was indebted to the plaintiff in the sum of — dollars for the price and value of goods and chattels sold and delivered by the said plaintiff to the said E. F., at his request, and in [&fc. Add the other Common Counts, Ante. 36,] and ihe said E. F., in his life time, to wit, on the day and year last aforesaid, in consideration of the premises respect- ively, promised to pay the last mentioned moneys respectively to the plaintiff on request ; yet the said E. F., in his life time, and the 68 ASSUMPSIT. Declarations — Bills of Exchange. defendant, executor as aforesaid, since the death of the said E. F., have respectively disregarded the said promises, and neither of them hath paid any of the said moneys^ or any part thereof. To the plaintiff's damage of — dollars ; and therefore lie brings his suit &fC, [If there be evidence of an admission 07' promise by defendant, since the testator's death, and it be material to prove it, declare accordingly. It ivill be necessary to aver that E. F. was indebted, ^c, as above, and then that " the moneys being due, defendant, as executor as aforesaid, after the death, to wit, on [^c] promised payment, but hath not paid" [^c] It may sometimes be proper to add a count for money paid for defendant as executor, or upon an account stated with him as such. No. 45. Indorsee of Executor of Drawer v. Acceptor. 1 Chitt. Prec. 85. [Proceed as in No. "25, Ante. 58, except that instead of the com- mon indorsement by the drawer to the plaintiff, the following should be inserted : — " And the plaintiff saith, that heretofore, to wit, on the — day of — , a. d. — [the date of the ivill, but the exact day is not material] the said E. F. [the drawer] made his last will and testament in writing, and thereby then appointed G. H., executor thereof; and the said E. F. afterwards and after the draw- ing of the said bill, to wit, on the — day of — , a. d. — [exact day not material] died, and the said G. H. then proved the said will, and took upon himself the burthen of the execution thereof, and became executor as aforesaid, and as such executor then indorsed the said bill to the plaintiff." [A profert of the will is] not necessary ; See Stone V. Rawlinson, Willes, 559; Chit. jun. B. 313. No. 46. Indorsee of Administrator of Draioer v. Acceptor. [Proceed as in No. 25, Ante. 58, except that instead of the com- mon indorsement by the draicer to the plaintiff , insert the following, "and the plaintiff saith, that heretofore, to wit, on — [exact day not material] the said G. II. [the draiver] died intestate, and afterwards, to wit,, on — [exact day not material] E. F. was appointed adminis- trator of the said G. H. in due form of law, and as such administrator then indorsed the said bill to the plaintiff?' ASSUMPSIT. 69- Declarations — Bills of Exchange. No. 47. Commissioner of Insolvents v. Acceptor, Insolvent Debtor being Drawer. [Commence as in No. 1, Ante. 46,] — A. B. Commissioner of In- solvents within and for the said county of — , complains of C. D., in a plea of assumpsit, for that whereas the said E. F. before he be- came an Insolvent Debtor, to wit : on — made his bill of exchange in writing, and directed the same to the defendant, and thereby re- quired the defendant to pay to him, the said E. F., — dollars, two months after the date thereof, which period has now elapsed ; and the defendant then accepted the said bill, and promised the said E. F. to pay the same according to the tenor and effect thereof, and of the said accptance thereof; and whereas, also, the defendant before the said E. F. became an Insolvent Debtor, to wit ; on — was in- debted to the said E. F. in — dollars, for the price and value of goods and chattels sold and delivered by the said E. F. to the de- fendant at his request ; and in, &.c. [Add the other Common Counts and proceed thus : — And the plaintiff saith that afterwards and be- fore the commencement of this suit, the said E. F. made application in due form of law for his discharge as an Insolvent Debtor, and thereupon duly assigned his effects to the plaintiff, in pursuance of the Act for the relief of Insolvent Debtors ; and thereupon the said moneys being unpaid, the defendant, after his assignment as aforesaid, to wit ; on — in consideration of the premises, promised the plaintiff, as Commissioner and Assignee as aforesaid, to pay him said moneys on request. Yet the defendant hath disregarded his promises, and hath not paid any of the said moneys, or any part thereof: To the damage of the plaintiff — dollars, and therefore he sues, &c. No. 48. Surviving Drawer v. Acceptor ; 1 Chitt. Prec. 88. [Proceed as in No. 1, Ante. 46, to the (*) — the plaintiff, and one E. F. since deceased, in the life time of the said E. F. to wit : on — made their bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the plaintiff and the said E. F. — dollars two months after the date thereof, which period has now elapsed. And the defendant then accepted the said bill, and promised the plaintiff, and the said E. F. since deceased, to pay the same according to the tenor and effect thereof, and of the said acceptance thereof. [Add Cnnmon Counts, Ante. 36, and conclude as therein directed, laying the debt and promise to the said " plaintiff and E. F., since deceased," and the rO ASSUMPSIT. Declarations — Bills of Exchange. breach that defendant " hath not paid any of the moneys to them or either of them, in the hfe time of the said E. F., or to the plaintiff' since the death of E. F." No. 49. Husband and Wife on a Bill drawn by and payable to the wife before marriage v. Acceptor ; 1 Chitt. Prec. 89. ^Commence as in No. 1, Ante. 46, — A. B. and E. his wife com- plain of C. D. in a plea of assumpsit, for that whereas, the said E. whilst she was unmarried, to wit : on — made her bill of exchange in writing, and directed the same to the defendant, and thereby re- quired the defendant to pay to her the said E. — dollars, two months after the date thereof, which period has now elapsed, and the defend- ant then accepted the said bill, and promised the said E., whilst she was unmarried, to pay the same according to the tenor and effect thereof and of the said acceptance thereof. [Add Common Counts, Ante. 36, laying the debt and promise to pay the last mentioned moneys " to the said E, whilst she was unmarried," and the bi'eachin not paying, " any of the said moneys to the said E. whilst she was unmarried, or to the plaintiifs, or either of them, since their intermarriage, to the damage of the plaintiffs, &c." The declaration may, if expedient under the circumstances, charge that the debts were due to the wife dum sola, and lay the promises to the plaintiffs since their inter- marriage. When the husband alone may sue on a bill to the wife dum sola; Macneilage v. Halloway, 1 B. & Aid. 218; Richards v. Puchards, 2 B. & Ad. 447. No. 50. Indorsee v. Husband and Wife on a Bill accepted by her before marriage ; 1 Chitt. Prec. 89. [Commence as in No. 1, Ante. 46, — A. B. complains of C. D. and E. his wife, for that whereas G. H. whilst the said E, was un- married, to wit : on — made his bill of exchange in writing, and di- rected the same to the said E. whilst she was unmarried, and thereby required the said E, to pay to the said G. H. or order, — dollars, two months after the date thereof, which period has now elapsed, and the said E. whilst siie was unmarried, then accepted the said bill, and tiie said G. H. then indorsed the same to one I. K. wiio then indorsed the same to the plaintiff, and the said E. whilst siie was unmarried, then promised the plaintifl' to pay him the amount of the said bill ac- cording to the tenor and 'effect thereof and of the said acceptance and indorsements. [Add Common Counts, Ante. 36, charging that " the said E. whilst she was unmarried, was indebted," &.C., and lay- ing a promise by her whilst unmarried t > pay the last mentioned ASSUMPSIT. 71 Declarations — Bills of Exchange. moneys ; and breach, " that E. whilst unmarried, and defendants since their intermarriage, have respectively disregarded the said prom- ises, and have not nor hath either of them paid any of the said moneys, &c." A Count laying a promise by both the defendants since their marriage cannot be inserted, see Morris v. Norfolk. 1 Taunt. 212; Pittam V. Foster, 1 B. & C. 248 ; 2 D. & R. 363, S. C. No. 51. Drawer v. Acceptor of a Foreign Bill;'' 2 Chitt. PL 167. [Proceed as in No. 1, Ante. 46, to the (*) — the said plaintilV, heretofore, to wit : on — . in parts beyond seas, to wit : at Amster- dam, that is to say at — ^ according to the usage and customs of mer- ciiants, from time immemorial used and approved of, made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then and there directed the said bill of exchange to the said de- fendant, by the name and addition of Mr. E. F., merchant, London; by which said bill of exchange, he, the said plaintiff, then and there requested the said defendant, at tivo usances, that is to say, at two calendar months after the date of the said bill of exchange, to pay that, his second bill of exchange, first and third of the same tenor and date not paid, to the said plaintiff or order, the sum of 200 du- cats, value received ; which said bill of exchange he the said defen- (a) A bill drawn in one State on a residence of the drawee. No dam- person living in another, is a Foreign ages are allowed upon a bill drawn Bill; 10 Pet. 572 ; 2 Pet. 589 ; 12 upon a person in Ohio, and payable Pet. 54; 5 Johns. 375; See 10 Ohio in a sister State; 8 Ohio Rep. 292. Fep. 184. Every indorsement of a The damages under the statute are Bill of Exchange is a new contract, given as an adjustment of all claim^ and each indorser becomes to the for expenses and re-exchange, and, subsequent holder, a new drawer; 10 like the principal, interest and costs Ohio Rep. 180; 15 Ohio Rep. 130. of protest should be found by the ju- A protest for non-acceptance or non- ry, and embraced in their verdict, payment is not necessary in Ohio; and the court cannot assess them and \0 Ohio Rep. 187, 49G. A protest add them to the verdict; 11 Ohio however is admissible to prove non- Rep. 145; See 12 Ohio Rep. 132. acceptance or non-payment, and in Bills strictly foreign, if not accepted such case the holder will be entitled and paid, must be protested, in order to six per cent, damages, under the to charge the drawer or indorser. In Statute ; Swan's Stat. 589. Or the case of a bill strictly inland, no pro- proof may be made by other evi- test is necessary, and if one be made dence, but if there be no protest the it cannot be given in evidence, but holder can recover no damages be- the notary himself must be called as yond principal and interest ; 10 Ohio a witness ; 10 Ohio Rep. 183. Rep. 187. The damages under the Statute do not depend upon the place (b) The venue in the action, of payment, but upon the place of 72 ASSUMPSIT. Declarations — Bills of Exchange. dant, afterwards, to wit : on the day and year aforesaid, to wit : at, &c., (Venue) aforesaid, upon sight thereof, accepted, according to the said usage and custom of merchants ; by means whereof, and according to the said usage and custom of merchants, the said de- fendant then and there became liable to pay to the said plaintiff the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of tiie said defendant's acceptance thereof; and being so liable, he the said de- fendant, in consideration thereof, afterwards, to wit : on the day and year aforesaid, at, &c., (Venue) aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his the said defendant's said acceptance thereof. And the said plaintiff^ avers, that the said 200 ducats, in the said bill of exchange mentioned, at the time of the making of the said bill of exchange, and also at the time when the same became due and payable, according to the tenor and effect there- of, were and still are of great value, to wit : of the value of £ — of lawful money of Great Britain, to wit : at, &-c., aforesaid. [Add Commn Counts, Ante. 36.] No. 52. Indorsee v. Indorser on Foreign Bill ; 10 Ohio Rep. 184. Albert S\ Case, plaintiff, complains of Samuel T. Heffner, defen- dant, in a plea of assumpsit, for that, whereas. Ford &/• Smith, one Freedus Chapman and Daniel Vanderbelt, on the eleventh day of January, A. D. 1839, in Clyde, to wit: in the county of Franklin, aforesaid, made their bill of exchange in writing, and directed the same to Messrs. Morgan, Butler ^ Co., commission merchants of ISew York, and thereby required the said Messrs. Morgan, Butler 8f Co. to pay to the order of Leonard Harvey, twenty-five hundred dollars, five months after date thereof, which period has now elapsed, and the said Leonard Harvey ♦hen and there indorsed the said bill to the defendant, who then and there, in the name and style of S. T. Heffner, indorsed the same to the plaintiff^, and the said bill was duly presented to, and payment of the same was duly demanded of^ Messrs. Morgan, Butler Sf Co., to wit: on the 14th day of June, A. D. 1839, at New York, aforesaid, but the said Morgan, JButler ^ Co. then and there refused to pay the said bill, whereof the defendant then and there had due notice. And, also, for that, whereas. Ford ^ Stnith, one Freedus Chap- man and Daniel Vanderbelt, on the eleventh day of January, A. D. 1839, at Clyde, to wit : at Franklin county, aforesaid, made their bill of exchange in writing, and directed the same to Messrs. Morgan, Butler Sf Co., commission merchants, New York, and thereby re- ASSUMPSIT. 73 Declarations — Bills of Exchange. quired the said Messrs. Morgan, Butler &f Co. to pay to the order of Leonard Harvey twenty-five hundred dollars, five months after the date thereof, which period has now elapsed, and the said Leonard Harvey then and there indorsed the said bill to the defendant, who then and there, to wit : at Franklin county, aforesaid, indorsed the same in the name and style of S. T. Heffner, to the plaintiff, and the said bill was duly presented to, and payment of the same was duly demanded of, Messrs. Morgan, Butler 4- Co., to wit: on the fourteenth day of June, A. D. 1839, at New York, aforesaid, but the said Morgan, Butler &f Co. then and there refused to pay the said bill, whereupon and wherefore, the said bill was then and there duly and legally protested, for nonpayment, of all which the said defend- ant then and there had notice, to wit : at Franklin county, aforesaid. And the said plaintiff avers that the said Morgan, Butler ^ Co. up- on whom the said bill was so drawn, as aforesaid, were, at the time the said bill was so drawn, persons within the jurisdiction of the Uni- ted States, and without the jurisdiction of this State, to wit: within the jurisdiction of the State of New York. ^Common Counts ad- ded as Ante. 36.] No. 53. Indorsee v. Acceptor Supra Protest.^ 1 Chitt. Prec. 91. [Proceed as in No. 1. Ante. 46, to the (*) — one E. F. on — m parts beyond the seas, to wit, at [Paris] made his bill of exchange in writing, and directed the same to one G. H. and thereby required the said fG. H. to pay to the said E. F. or order, — dollars two months after the date thereof, which period has now elapsed. And the said E. F. then indorsed the same to [L. M. who then indorsed the same to] the plaintiff, and the said bill was then presented to the said G. H. for acceptance, and he then refused to accept the same, wiiereupon the said bill was then protested for non-acceptance thereof: of all which the defendant then had notice. And thereupon the defendant, in order to prevent the said bill from being sent back and returned to the said E. F. [the draiver] did under the said protest accept the said bill, and the said G. H. [the original drawee\ did not pay the said bill, although the same was presented to him for pay- ment on the day when it became due, whereupon the said bill was then duly protested for non-payment thereof, of all which the de- fendant then had due notice. [Conclude as in No. 1. Ante. 46.] (a) One who pays a Bill supra must give reasonable notice of the protest, for the honor of the indorser, payment ; 7 Ohio Rep. 156, part 2d. 10 74 ASSUMPSIT. Declarations — Bank Checks. Bank Checks. No. 54. Payee of Check v. Drawei\ 1 Chitt. Prec. 100. [Proceed as in No. 1 . Ante. 46, to the (*) — the defendant on — made his certain draft or order in writing for the payment of money, commonly called a Bank check, and directed the same to the Bank of — (Corporate Name) according to the Check, and thereby required the said Bank to pay to the said plaintiff or bearer — dollars, and then delivered the same to the plaintiff. And the said Bank did not pay the said draft or order, although the same was then presented to the said Bank for payment thereof, of all which the defendant then had due notice. [If due notice or a subsequent promise cannot he clearly proved, and the bankers had no effects of the defendant in their hands, (See Chit. jun. B. 57,) declare on the check as above, except that the averment of notice should be omitted ; and there should be inserted, in lieu thereof, an allegation of such want of effects, as Ante. No. 37. Of course the the word " acceptance," in that form will be omitted as inapplicable to a check. [Add Com- mon Counts, Ante. 36.] No. 55. Bearer, not being Payee, v. Drawer. 1 Chitt. Prec. 100. Proceed as in No. 1 . Ante. 46, to the (*) — the defendant, on — made his certain draft or order in writing for the payment of money, commonly called a Bank Check, and directed the same to the Bank of — (Corporate Name) according to the Check, and thereby required the said Bank to pay to G. H. or bearer — dollars, and then delivered the said draft or order to the said G. H. who then transferred and delivered the same to the plaintiff. (Tf there he an intermediate transfer, then say "and the said draft or order was then duly transferred and delivered to the plaintiff.") And the said plaintiff then became and was and is the lawful bearer of the said draft or order : And the said Bank of — did not pay the said draft or order, although the same was then presented to the said Bank for payment thereof, of all which the defendant then had due notice. [Proceed as in last Form.] Special Cases. No. 56. For refusing to deliver goods. [Proceed as in No. 1 , Ante. 46, to the * — the said C. D. on — at — sold to the said A. B. ten hogsheads ff sugar, for the sum ASSUMPSIT. 75 Declarations — Special Cases. of — dollars, then and there in hand paid to the said C. D. by the said A. B. and for the further sum of — dollars to be paid to the said C. D. upon the delivery of said ten hogsheads of sugar, and the said C. D. on — at — in consideration thereof, and that the said A. B. at the request of the said C. D, promised to pay him the said sum of — dollars on the delivery of said ten hogsheads of sugar, promised the said A. B. to deliver him the said ten hogsheads of sugar on or before — : yet the said C. D. hath disregarded his promises, and hath not delivered the said ten hogsheads of sugar, or any part thereof: [Conclude as in No. 1. A7ite. 46.] No. 57. The like, upon request. 1 East. 203. Proceed as in No. 1. Ante. 46, to the (*) — on — at — in con- sideration that the said A. B. at the request of the said C. D. had then and there bought of the said C. D. a large quantity, to wit, ten tons of malt, for a price then and there agreed upon between them, he the said C. D. promised the said A. B. to deliver him the said ten tons of malt, upon request ; and the said A. B. avers that although he did on — at — request the said C. D. to deliver said ten tons of malt, and was then and there ready to pay the said C. D. for the same, according to the terms of said sale, and was then and there ready and offered to receive said ten tons of malt ; yet the said C. D. did not then and there, nor at any time before or since, deliver the said ten tons of malt or any part thereof. [Co7iclude as in No. 1. Ante. 46.] No. 58. On an award by parol Submission. [Proceed as in No. 1 . Ante. 46, to the (*) — on — at — there were divers difficulties and controversies between the said A. B. and C. D., concerning their mutual accounts, debts and demands ; and the said A. B. and C. D. on — at — chose and appointed one E. F. to hear and determine for them, all-said difficulties and controversies, and then and there mutually promised and agreed with each other to stand to and abide by the award of the said E. F. thereupon : and the said E. F. afterwards on — at — heard the said A. B. and C. D. upon the premises, and then and there awarded that the said C. D. should pay to the said A. B. a balance of — dollars, on demand, and then and there, or, afterwards, to wit, on — notified the said A. B. and C. D. thereof: yet the said C. D. though often requested, hath not paid the said sum of — dollars, nor any part thereof. [ Conclude as in No. 1. Ante. 46.] 76 ASSUMPSIT. Declarations — Special Cases. No. 59. On a promise to take back a horse, if unsound, and refund the price. Proceed as in No. 1. Ante. 46, to the (*) — ihe said C. D. on — at — in consideration that the said A. B. had then and there, at the request of the said C. D. bought of him a certain horse for the price of one hundred dollars, then and there paid by the said A. B. to the said C. D. he the said C. D. then and there promised the said A. B. that if he would receive the said horse, and the same should prove unsound, he the said C. D. would take back the said horse, and return to the said A. B. the said sum of one hundred dollars, so by him paid for the same. And the said A. B. avers, that though he then and there received the said horse on the terms aforesaid, in faith of the said promise of the said C. D. and though the said horse after- wards proved to have been unsound in the eyes, at the time of the sale and delivery aforesaid, and so remained, of which the said C. D- on — at — had notice : yet the said C. D. disregarding his promise aforesaid, although requested on — at — hath not as yet taken back the said horse, nor repaid to the said A. B. the said one hundred dollars. Second Count. — And also for that the said C. D. on — at — in consideration that the said A . B. had then and there, at the request of the said C. D. bought a certain other horse of the said C. D. for the sum of one hundred dollars, then and there paid to the said C. D. he the said C. D. then and there promised the said A. B. that the said last mentioned horse was sound : yet, the said C. D. disregard- ing his promise, deceived the said A. B. in this, that the said last mentioned horse at the time of making said promise, and said sale, was not sound, but was then and there unsound, whereby the said last mentioned horse became of no value to the said A. B. of all which the said C. D. on — at — had notice, &.c. [Conclude as in No. 1. Ante. 46.] No. 60. On the sale of a horse' with warranty. [Proceed as in No. 1. Ante. 46, to the (*) — the said C. D. on — at — in consideration that the said A. B. at the request of the said C. D. would buy of him a certain horse lor the sum of one hun- dred dollars, he the said C. D. then and there promised the said A. B. that the said horse was then and there sound : and the said A. B. avers, that he, confiding in the said promise of the said C. D. did afterwards, on — at — aforesaid, buy the said horse of the said C. D. and then and there paid him for the same the said sum of one ASSUMPSIT. 77 Declarations — Special Cases. hundred dollars : yet the said C. D. disregarding his said promise, thereby deceived and defrauded the said A. B. in this, that the said horse, at the time of the making the said promise of the said C. D. was not sound, but on the contrary, was then and there unsound, whereby the said horse became and was of no use or value to the said A. B. and he the said A. B. hath been put to great charges and expense of his time and money in and about the feeding, keeping, and taking care of said horse, in the whole amounting to a large sum of money, to wit, — dollars, &c. [Add a Count for horse keeping, Ante. 45, aiid the Common Counts, Ante. No. 36.] The like, stating special Damages. 1 Chitt. Prec. 186. [Commence as in No. 1. Ante. 46.] — for that whereas on — in consideration that the plaintiff, at the request of the defendant, would buy of the defendant a certain horse, for a certain pric*, to wit, — dollars, to be paid by the plaintiff to the defendant, he the defendant undertook and then promised the plaintiff that the said horse then was sound ; and the plaintiff avers that he did then buy the said horse of the defendant and pay him for the same the said sum of money, yet the defendant disregarded his said promise and deceived the plaintiff in this, to wit, that the said horse, at the time of the making of the said promise of the defendant, was not sound, contrary to the defendant's said undertaking, whereby the said horse became and was of no use or value to the plaintiff, and the plaintiff hath necessarily incurred a great charge and expense of his moneys, to wit, to the amount of — dollars, in and about the causing the said horse to be examined, and the feeding, keeping and taking care of the same, and incidental thereto. [''And the plaintiff avers that he, confiding in the defendant's said promise, did afterwards and before he discovered the said unsoundness, to wit, on [&fc.] sell the said horse, to wit, to one E. F. for a large sum, to wit, — dollars, and then warranted and promised the said E. F. that the said horse was sound, and that by reason of the said unsoundness the plaintiff was after- wards, to wit, on [^c] compelled to pay to the said E. F. a large sum, to wit, the sum of — dollars, for his damages by him sustained on occasion of the said breach of warranty, and also a large sum, to wit, — dollars, for the costs of the said E. F. by him sustained in commencing and prosecuting a certain action brought by him in the said court here against the plaintiff on the last-mentioned warranty and promise ; and thereby also the plaintiff incurred great expenses, to wit, to the amount of — dollars, in defending and settling the said action ; and by reason of the premises the plaintiff was and is other- wise injured. [Add Common Counts, Ante. 36.] 78 ASSUMPSIT. Declarations — Special Cases. No. 6 1 . Agaisnt a Carrier for gross neglect whereby the goods were lost ; 1 Chitt. Prec. 96. [Proceed as i7iNo. 1, Ante. 46, to the (*) — For that whereas heretofore, to wit : on [&fc.] in consideration that the plaintifi^, at the defendant's request, had dehvered to him certain goods, to wit : [^c. describe them as in trover,] of great value, to wit : — dollars, to be conveyed by the defendant from — to — , and there to be delivered by him for the plaintiff for reward to the defendant, he the defend- ant then promised the plaintiff to take due care of the said goods whilst he had the charge thereof for the purpose aforesaid, and to take due and reasonable care in and about the conveyance and deliv- ery of the said goods as aforesaid ; yet the defendant disregarded his said promise in this, that he did not take due care of the said goods whilst he had the charge thereof for the purpose aforesaid, or in the conveyance and delivery thereof, as aforesaid, and therein made de- fault ; and by reason thereof and of the defendant's carelessness and improper conduct in the premises, the said goods and chattels, whilst the defendant so had charge thereof, to wit : on the day and year aforesaid, became and were and are wholly lost to the plaintiff. To the plaintiff's damage, [^c] No. 62. By an Administratrix against Stage Coach proprietors for so negligently driving the Coach that it ivas upset ; whereby the leg of the Intestate was broken, and he died ; showing special damage ; 1 Chitt. Prec. 98.^ \Proceed as in No. 1, Ante. 46, to the (*) — the defendant, in the life time of the said E. F., and before and at the time of the making of their promise hereinafter mentioned, were owners and proprietors of (a) As regards passengers, a stage 414; Sharp v. Grey, 9 Bing. 457 ; coach proprietor is not liable for any 2 M. & Sc. 620, S. C. ; Chit. jun. personal injury they may sustain Cent. 2d. Ed. 385 380. Thebreak- from the upsetting of the coach, &c., ing down or upsetting of the coach unless he be guilty of gross negli- is said to be prima facia evidence of gence or unskilfulness in driving, or neglect ; Christie v. Griggs, 2 Camp, in providing horses, coach, or bar- 79; See 10 Ohio Rep. 145 ; 13 Pet. ness, &c. ; Crofts ?;. Waterhouse, 11 181; 1 McLean, 540; 2 McLean, Moor, 133; 3 Bing. 319, S. C. ; 157; 11 Eng. Com. Law Rep. 119; Christie v. Griggs, 2 Campb. 79 ; See, also, Declarations in Case, Harris v. Costar, 1 C. & P. 636 ; Post. Bremmer v. Williams, 1 C. & P. ASSUMPSIT. 79 Declarations — Special Cases. a certain stage coach for the carriage of passengers and their luggage, and other effects, to and from Cleveland to Columbus, for hire and reward to the defendants in that behalf, to wit : at [&c.] aforesaid ; and thereupon heretofore, and in the life time of the said E. F., to wit : on [&c.] at [&-c.] in consideration that the said E. F. would go and proceed from Cleveland aforesaid, to Columbus aforesaid, as a passenger in the said coach, for reward to the defendants in that be- half, they, the defendants, undertook and then and there promised the said E, F. to use due and proper care and skill in and about the driving and management of the said coach whilst the said E. F. should be a passenger thereby, as aforesaid ; and the plaintiff, admin- istratrix, as aforesaid, saith, that although the said E. F., confiding in the said promise of the defendants, did then, to wit : at [&c.] go and proceed from Cleveland aforesaid, towards Columbus aforesaid, as a passenger in the said coach, as aforesaid, for reward to the defend- ants as aforesaid, yet the defendants, not regarding their said promise, did not nor would use due and proper care or skill in and about the driving and management of the said stage coach whilst the said E. F. so was a passenger thereby, as aforesaid, but wholly neglected so to do, and on the contrary thereof they, the said defendants, by their coachman and servant in that behalf, then and there so negligently, carelessly and improperly drove, managed and directed the said coach, and the horses drawing the same, that afterwards, and whilst the said coach was proceeding from Cleveland aforesaid, towards Columbus aforesaid- to wit : on [&c.] aforesaid, to wit : at [Slc,] aforesaid, the said coach, by and through the carelessness, and negligence, and un- skillfulness and improper conduct of the defendants, by their said coachman and servant in that behalf, was overturned, and thereby one of the legs of the said E. F. then and there became, and was, fractured and broken, and tlie clothes and wearing apparrel of the said E. F., to wit : one coat, [&c.] which he then and there had on, being of certain value, to wit : of the value of — dollars, then and there became and were greatly dirtied, torn, cut and rendered of no use or value, and thereby, also, the said E. F. was then and there oth- erwise so much bruised, wounded and injured, that he, the said E. F, was forced and obliged to confine himself and remain, and did ac- cordingly then and there confine himself and remain, in consequence of the premises aforesaid, in his bed for and during a long space of time, to wit : for the space of six weeks then next following, at the expiration of which time he, the said E. F., by reason of the premi- ses aforesaid, died, to wit : at said county ; and the plaintifT, as ad- ministratrix, as aforesaid, in fact further saith, that by reason, and in consequence of the said leg of him, the said E. F., having been, and being so fractured and broken, and he, the said E. F., having been, and being so bruised, wounded and injured, as aforesaid, he, the said E. F., in his life time, was forced and obliged to pay, lay out and ex- 80 ASSUMPSIT. Declarations — Special Cases. pend, and did accordingly then and there pay, lay out and expend, divers large sums of money, amounting in the whole to — dollars, in and about the obtaining medical, and proper and necessary attend- ance, and assistance, and medicine, and endeavoring to be cured of the said bruises, wounds and injuries so received, as aforesaid, and the said E. F., by reason of his being so confined and obliged to re- main in his bed, as aforesaid, was then and there wholly incapacitated, and unable to carry on and transact his necessary afiairs and busi- nesses, and was then and there also wholly deprived of the profits, salary and emoluments which before then had been used and accus- tomed to arise and accrue, and would otherwise have arisen and ac- crued to, and been received by him, the said E. F., in consequence and by reason of his employment and situation in the office and bu- siness of a certain person, to wit: G. H. ; and the personal estate, property and effects of the said E. F. have been, and are, by means of the several premises aforesaid, otherwise greatly injured and less- ened in value and amount, to wit : at [&c.] To the damage of the plaintiff' as administratrix, as aforesaid, of — dollars, and therefore she brings her suit, &.c. [Add Profert as in No. 17, Ante. 54.] No. 63. By School Master on a Subscription Paper; 11 Ohio Rep. 386. [Commence as in No. 1, Ante. 46 — R. S. complains of 1. C, in a plea of Assumpsit, for that whereas the said defendent, on the sixth day of January, A. D. 1841, at the county aforesaid, made his certain agreement in writing, in the words and figures following, to wit : January 6th, 1841. We, the subscribers, promise to pay unto R. S. or order, the sum of two dollars per scholar, for sixty days teaching the following branches, to wit : Reading, Writing, Arithmetic, Eng- lish Grammar and Geography, in District No. 15: and which agree- ment was subscribed by him, the said defendant, for two scholars ; and the said defendant then and there delivered the same to the said plaintiff", and thereby promised to pay to the said plaintiff, or order, the sum of two dollars per scholar for each of the two scholars by him subscribed as aforesaid, for sixty days teaching the branches of education aforesaid. And the said plaintiff avers that he did teach for the term of sixty days from and after the said sixth day of Jan- uary, 1841, and before the commencement of this suit, to wit, at the district aforesaid, of which the said defendant then and there had notice ; and the said plaintiff" avers that he was then and there ready to receive and teach, and did receive and teach, the said number of scholars by the said defendant subscribed as aforesaid, and was ready and willing, and would have continued ready and willing, to teach ASSUMPSIT. 81 Declarations — Special Cases. the said number of scholars in the branches of education aforesaid, for the said period of sixty days, which said period has long since elapsed. And the said defendant, in consideration of the premises, promised to pay the said plaintiff the said sum of two dollars per scholar for tjie two scholars by him subscribed as aforesaid, according to the tenor and effect of the said agreement ; and whereas also the said defendant, on the 28th day of April, 1841, at the county afore- said, was indebted to the said plaintiff in the sum of ten dollars, for the work and labor, care and diligence and attendance of the said plaintiff, before that time done, performed and bestowed, for the said defendant, as a School Master, in and about the teaching and in- structing of divers children and other persons, in Reading, Writing, Arithmetic, English Grammar and Geography, good manners and other necessary and useful accomplishments and qualifications, and at the special instance and request of the said defendant. [Add other Common Counts, as Ante, 36.] No. 64. On a Subscription Paper for nfiaking a Road ; 11 Ohio Rep. 492. [Commence as in No. 1, Ante. 46, — For that whereas heretofore to wit : on the twenty-ninth day of August, A. D. one thousand eight hundred and thirty-one, at the county of — aforesaid, divers of the people of Farmington, Mecca, Johnson and the adjacent townships in said county, believing that the road that leads from Johnson to Farmington in said county, if opened, made and continued in the form of a turnpike road, would be beneficial to them as individuals, and useful for the public, and being then and there desirous of hav- ing said road opened, made and continued in the manner and form as aforesaid, did then and there appoint said W. J. as their agent for the purpose of opening and constructing said road as aforesaid, and did then and there proceed to raise, and did then and there raise, and obtain subscriptions for the purpose of enabling the said J. to open and construct said road as aforesaid, and did then and there obtain subscriptions among themselves in labor, stock, goods, money, &c., in a large sum, to wit: the sum of three hundred and forty dol- lars. And said J. then and there, in consideration of the premises, and that the said citizens would remunerate him for his services in opening and constructing said road as aforesaid, and would pay their subscriptions and contributions to said road to the said J., as they had then and there severally agreed and subscribed so to do, in and by a certain agreement or subscription, in writing, of that date, hereinafter set forth, undertook and then and there promised and agreed to open, make and construct said road in the manner and form aforesaid, which said agreement or subscription so as aforesaid subscribed to 11 83 ASSUMPSIT. Declarations — Special Cases. severally by the said citizens is of the tenor and effect following, to wit: " We, the subscribers, believing that the road that leads from John- son to Farmington, in Trumbull county, if opened, made and con- structed in the form of a turnpike road would be beneficial to us as individuals, and useful for the public, do for the purpose of opening and constructing said road in manner and form aforesaid, promise and agree to pay the several sums of money and the articles of property by us subscribed to W. J. when demanded or to his order, or to work when said Johnson shall direct on said road. " August, 29, 1835." And whereas, the said G. S. as one of the aforesaid citizens, and one of the subscribers to said above recited agreement, and in con- sideration of the premises, and that the said J. would open and con- struct said road in manner and form aforesaid, did then and there subscribe to the aforesaid recited agreement and did then and there agree to pay to the said J. in labor, or in stock, the sum of fifty dol- lars, in manner following, to wit : twenty-five dollars in labor or in stock, in one year from the date of said subscription, and twenty-five dollars in labor, or in stock, in two years from said date, which said labor the said S. then and there promised by said agreement to per- form on said road, where the said J. should direct. And the said G. S. then and there, in consideration of the premises, promised to pay his said subscription to said road according to the tenor and effect of said agreement, and his said subscription thereto. And the said J. avers that in pursuance of his said undertaking to open, make and construct said road as aforesaid, he did then and there proceed to open and construct the same, and did then and there, within a rea- sonable time thereafter, open and construct said road in the manner and form aforesaid, and did then and there appropriate the subscrip- tions made to said road so far as the same were paid to him the said J., and did then and there expend for the completion of said road, to make up the deficiencies of subscriptions not paid in, a large sum of money out of his own pocket, to wit : the sum of two hundred dollars. Now the said J. avers that while opening and constructing said road, to wit : on the twenty-ninth day of August, A. D. one thousand eight hundred and thirty-six, within the time agreed for the payment of the first year's subscription to said road, and on divers times before and since said day, he the said J. at said county, called upon the said G. S. and demanded of him to pay said subscription of fifty dollars, or so much thereof as was then due, either in stock or in labor, and for that purpose he, the said J., then and there, and at divers other times since then, notified the said S. when and where he the said J. would work on said road, and would have work per- formed on the same, and would receive his the said S.'s work or la- ASSUxMPSIT. 83 Declarations — Special Cases. bor on said road in discharge and payment of his said subscription in whole or in part, and the said J. also at said county, on the 29th day of August, 1837, and within the time for the payment by the said S. of his second year's subccription, and while the said J. was working on said road, and on divers days and times before and since that time, demanded of the said S. to pay his said subscription either in stock or in labor on said road, and also then and there notified the said S. when and where on said road he the said J. would receive labor of the said S. Yet the said S., disregarding his said promises, has not paid said subscription of fifty dollars either in labor or in stock, or otherwise, or any part thereof, although often requested and deman- ded so to do, and although the time for paying the same, to wit : two years from the date of said subscription, has long since elapsed, to wit : at the county aforesaid, and although the said J. since the time of said subscriptions remaining out, to wit : on the 30th day of Au- gust, A. D. one thousand eight hundred and thirty-seven, and before the commencement of this suit at said county, demanded of the said S. to pay his said subscription. And also for that the said S. on the first day of September, A. D. one thousand eight hundred and thirty-seven, at said county, was in- debted to to said J. in the sum of fifty dollars for work and labor be- fore then by the said J. done and performed for the said S. and at his request. And also in the sum of fifty dollars for materials before then provided for said labor and furnished by the said J. for the said S. and at his request. Also in the sum of fifty dollars for money be- fore then paid, laid out and expended by the said J. for the said S. and for his use and benefit, and at his request. And being so indebted he the said S. in consideration thereof, then and there promised the said J. to pay him said last several sums of money on request. Yet the said S., although often requested so to do, has not paid said J. said sums of money mentioned in this dec- laration, or any part thereof. By reason of all which breaches of promise of the said S., mentioned in this declaration, the said J. has sustained damage in the sum of ninety dollars ; wherefore he sues, &.C. No. 65. Township Trustees v. Husband fm' advances to Wife as a Pauper; 10 Ohio Rep. 365.* [Commence as in No. 1, Ante. 46, — The Trustees of Whetstone (a) Where a woman whose hus- charge, the money expended for her band is able to support her is driven support may be recovered of the from her home by his cruelty and husband at the suit of the party ma- becomes a County or Township king ihea-dvances; Howard v. ffliet- 84 ASSUMPSIT. Declarations — Special Cases. township in said county of C, complain of A. H., in a plea of as- sumpsit, for that whereas the said A. H. heretofore, to wii : on the 24 th day of December, A. D. 1837, at B. in said county, was in- debted to the said plaintiffs in the sum of one hundred dollars for meat, drink, washing, lodging and other necessaries before that time found and provided, at the special instance and request of the said defendant, and being so indebted, the said defendant, in considera- tion thereof, then and there promised to pay the said sum of money to the plaintiffs on request. And whereas, also, afterwards, to wit : on the day and year last aforesaid, at B. aforesaid, in consideration that the said plaintiffs at the like special instance and request of the said defendant, had before that time found and provided other meat, drink, washing, lodging and other nece'ssaries for divers persons the said defendant undertook and then and there promised the said plaintiffs to pay them on demand so much money as they therefor reasonably deserve to have. And the plaintiffs aver that they reason- ably deserve to have therefor the sum of one hundred dollars. And whereas, also, afterwards, to wit: on the day and year last aforesaid, at B. aforesaid, the said defendant was indebted to the said plaintiffs in one hundred dollars for the price and value of goods then and there bargained and sold by the plaintiffs to the defendant at his re- quest. And in one hundred dollars for the price and value of work then and there done and materials for the same provided by the plaintiffs for the defendant at his request. And in one hundred dollars for money then and there paid by the plaintiffs for the use of the defendant at his request. And whereas the defendant afterwards, to wit : on the day and year last aforesaid, at B. aforesaid, in consideration of the premises, then and there promised to pay the said last mentioned several sums of money on demand to the plaintiffs. Yet he hath disregarded his promises and (although often requested so to do) hath not paid the said several sums of money, nor either of them, nor any part thereof, to the damage of the plaintiffs one hundred dollars ; and therefore they bring suit, &,c. stone Township, 10 Ohio Rep. 365. and request of the defendant, for one In 5 Ohio Rep. 23, the Declaration M. G. then and there being an in- was in general terms, "for meat, habitant of C. Township, and then drink, washing and lodging, and olh- and there being in a necessitous and er necessaries found and provided by suffering condition." the plaintiff, at the special instance ASSUMPSIT. 85 Declarations — Special Cases. No. 66. Treasurer of the State of Connecticut upon a Judgment on Recognizance : 1 Ohio Rep. 259. [Commence as in No. 1, Ante. 46 — E. was summoned to answer unto I., Treasurer of the State of Connecticut, successor in office to A. K., late Treasurer of said State of Connecticut, the said I. serving in said capacity for the use and benefit of said State of Connecticut : whereupon the said I., who sues as aforesaid, for the purposes afore- said, by E. W. his attorney, complains, for that whereas, heretofore, to wit, at a Superior Court of Judicature, holden at Norwich, in and for the county of New London, in the State of Connecticut, on the fourth Tuesday of September, in the year of our Lord one thousand eight hundred and seventeen, before the Hon. John Trumbull, Esq., Presiding Judge, and Nathaniel Smith and Stephen S. Hosmer, Esqs., Judges, such proceedings were then and there had, that a suit was then and there depending, wherein A. K., Treasurer of the State of Connecticut, as Plaintiff, impleaded E. B., Defendant, on a Bond of recognizance before made and entered into by the said E. to and with the said A. K.. as Treasurer as aforesaid, and such proceedings were then and there had that the Court aforesaid, at the Term aforesaid, in the cause aforesaid, rendered judgment in favor of the said A. K., Treasurer of said State of Connecticut, against the said E. B. for the sum of one hundred dollars debt (or damages) and his costs, taxed at twenty-one dollars and ninety cents ; which said judgment remains in full force in no wise satisfied, reversed or vacated : And for that whereas also at the Court aforesaid, at the Term aforesaid, there was another suit then and there depending in favor of A. K., Treasurer of said State, wherein the said E. B. was defendant, commenced by attachment, on a bond or recognizance before that time entered into with the said A. K., as Treasurer of the said State of Connecticut, and said suit being so then and there depending, such proceedings were then and there had that the said E. was three times solemnly called, and made default of appearance ; whereupon it was consid- ered by the Court that the said A. K., as Treasurer of the State of Connecticut, recover of the said E. B. the sum of one hundred dol- lars debt (or damages) and his costs, taxed at twenty-one dollars and ninety cents ; which judgment remains in no wise satisfied, reversed or vacated, but now remains in full force and effect. By reason whereof the said E. B. became liable to pay said A. K, as Treasurer of the said State of Connecticut, for the use and benefit of said State, when thereunto afterwards requested, the sums in these counts contained ; and being so liable, he the said E., in consideration thereof, afterwards, to wit, on the same day and year last aforesaid, at Nor- wich, to wit, at Jefferson, in the county of Ashtabula aforesaid, took upon himself and then and there faithfully promised to pay the said 86 ASSUMPSIT. Declarations — Special Cases. A. K., as Treasurer aforesaid, the several sums of money in these counts mentioned, when thereunto afterwards requested ; and the said I. avers that he is, and for one year last past has been, the suc- cessor in the office of Treasurer aforesaid to A. K. aforesaid, and that the said E. became and was liable to pay him the several sums of money in these counts mentioned, when he thereunto should be af- terwards requested, and being so liable, on the 1st day of May last, at Jefferson, in the county aforesaid, took upon himself and then and there faithfully promised the said Plaintiff, as Treasurer aforesaid, to pay him for the use of said State of Connecticut, the aforesaid sev- eral sums of money, when he should be thereunto afterwards reques- ted ; nevertheless the said plaintiff saith, that although often reques- ted and demanded, the said E., his promises aforesaid in no wise re- garding, hath never performed the same, nor hath he paid any part of said money to the said A. K., while Treasurer of said State of Con- necticut, nor to the said L since his election to said office, although often thereunto requested and demanded. Wherefore the said I. saith he has, as Treasurer aforesaid, sustained damage in the value of three hundred and fifty dollars, to recover which for the use and ben- efit of said State of Connecticut, this suit is brought, &c. No. 67. On a Letter of Credit. 10 Ohio Rep. 490. [Cmmence as in No. 1. Ante. 46,] — Charles W. Wetmore and Seth D. Wetmore were summoned to answer unto John Taylor, Ed- mond Shipton, and James E. Breading, Merchants, trading in Com- pany, at the City of Pittsburg, Pennsylvania, under the name and style of Taylor, Shipton & Co., of a plea of Trespass on the Case upon promises, and thereupon the said Plaintiffs by S. his Attorney complain for that whereas heretofore, to wit: on the twenty-sixth day of November in the year of our Lord one thousand eight hundred and thirty-six, one C. D. Farrar being desirous of purchasing, in said City of Pittsburg, a general assortment of Merchandise for a retail Country Store, on a credit, and being entirely unknown to the busi- ness men of said City, applied to the Defendants then doing business at Cuyahoga Falls, in said county of Portage, in Company, under the name of C. W. & S. D. Wetmore, for a general letter of credit, to be by them drawn and directed to some one or more of their corres- pondents in said City of Pittsburg, by means of which he might be enabled to make his purchases as aforesaid : And the said Defendants upon such application of the said C. D. Farrar then and there, to wit : on the twenty-sixth day of November in the year one thousand eight hundred and thirty-six aforesaid, at Cuyahoga Falls, in the county of Portage aforesaid, made and delivered to the said C. D. Farrar a ASSUMPSIT. 87 Declarations — Special Cases. letter of credit, or written guaranty, addressed to Messrs. A. D. Mc- Bride & Co., Merchants in said City of Pittsburg, in the words and figures following, to wit : "Cuyahoga Falls, Nov. 26, 1836. "Messrs. A. D. McBride & Co: "Gent. " Mr. C. D. Farrar has concluded to purchase a few goods. We have that confidence in Mr. Farrar that we will say that we will be responsible to the am't of two thousand dollars for goods delivered him. " We are, truly, "C. W. & S. D. Wetmore.". Which said letter of credit or written guaranty, signed by the Defendants, under the name of their said firm of C. W. & S. D. Wetmore, was by them delivered to the said C D. Farrar, for the purpose of enabling him to obtain goods on a credit as aforesaid, and was by him the said C. D. Farrar taken to the said City of Pittsburg, and there presented to Messrs. A. D. McBride & Co., to whom it was addressed, and who retained the same as security for themselves and such other merchants is said City of Pittsburg as should at that time, and on the faith of said guaranty, sell goods on a credit to the said C. D. Farrar. And the Plaintiflls in fact say, that the said C. D. Farrar was unable to obtain anything like a general assortment of goods from the said house .of McBride & Co. who were confined to the business of Grocers, and accordingly made application to the Plaintiffs to sell to him a quantity of Dry Goods, upon a credit of six months, upon the guaranty of the Defendants, then in the hands of the said A. D. McBride & Co., and the said C. D. Farrar then and there, to wit, on the third day of December A. D. 1836, at the City of Pittsburg, aforesaid, referred the Plaintiffs to the said A. D. Mc- Bride & Co., and to said letter of credit, or written guaranty, of the Defendant, then in the hands of said McBride & Co. for the purpose of inducing them the Plaintiffs to sell him the said C. D. Farrar a quantity of dry goods, upon a credit as aforesaid : And the said Plaintiffs did then and there, to wit: on the day and year last afore- said, at Pittsburg aforesaid, call upon the said A. D. McBride & Co., and examine said letter of credit, and being satisfied therewith, and with the statement of the said A. D. McBride & Co. made in regard to the responsibility of the Defendants, they the said Plaintiffs, did then and there, to wit : on the third day of December A. D. 1836, at the City of Pittsburg, aforesaid, and solely upon the strength and credit of said written guaranty of the Defendants, sell and deliver to the said C. D. Farrar, upon a credit of six months, a lot of dry goods, as per bill rendered, amounting to the sum of seven hundred ASSUMPSIT. Declarations — Special Cases. and sixty dollars and seventy-five cents ; of all which the said Defendants had due and timely notice. And the Plaintiffs say that by means of the premises, the Defendants became and were and still are liable to pay to them the said sum of seven hundred and sixty dollars and seventy-five cents, as the said term of six months has long since elapsed, and no part of the said sum hath at any time beeen paid to them by the said C. D. Farrar, although often demand- ed of him, or by any person in his behalf: and being so liable they the said Defendants afterwards, to wit : on the sixth day of June A. D. 1837, at Cuyahoga Falls, in the County of Portage, aforesaid, assumed upon themselves and faithfully promised the Plaintiffs, to pay to them the said sum of seven hundred and sixty dollars and seventy-five cents, when they should be thereunto afterwards re- quested. And also for that whereas heretofore, to wit : on the twenty-sixth day of November A. D. 1836, at Cuyahoga Falls, in the county of Portage, aforesaid, in consideration that the said plaintiffs, at the special instance and request of the said Defendants, would sell and deliver to one C. D. Farrar, on credit, all such goods as he the said C. D. Farrar should have occasion for and require of the said Plain- tiffs' trade and business of Wholesale Dry Goods Merchants, they the said Defendants undertook and then and there faithfully promised the Plaintiffs to be accountable to them, the said Plaintiffs, for what- ever goods they the said Plaintiffs should sell and deliver to the said C. D. Farrar, as aforesaid. And the Plaintiffs aver that they, con- fiding in the said promise and undertaking of the Defendants, did afterwards, to wit: on the third day of December A. D. 1836, at the City of Pittsburg, to wit : at Cuyahoga Falls, in the county of Portage, aforesaid, sell and deliver to the said C. D. Farrar, on certain credit then and there agreed upon between the Plaintiffs and the said C. D. Farrar, certain goods of great value which he the said C. D. Farrar then and there had occasion for and required of the said Plaintiffs in the way of their the said Plaintiffs' said trade and business and at and for certain reasonable prices then and there agreed upon by and between the said Plaintiffs and the said C. D. Farrar, amounting in the whole to a large sum of money, to wit : the sum of seven hundred and sixty dollars and seventy-five cents, and that although the said credit and the time for payment of the price of the said goods by the said C. D. Farrar to the Plaintiffs, hath long since elapsed, yet the said C. D. Farrar hath not (although he was after- wards, to wit : on the third day of June A. D. 1837, and at the expiration of said term of credit, at Cuyahoga Falls, aforesaid, re- quested by the Plaintiffs so to do) as yet paid the said sum of seven hundred and sixty dollars and seventy-five cents, or any part thereof, but hath hitherto wholly neglected and refused so to do, to wit : at Cuyahoga Falls, in the county of Portage aforesaid ; of all which ASSUMPSIT. 89 Declarations — Special Cases. the said promises the said Defendants afterwards, to wit : on the third day of June A. D. 1837, aforesaid, there had notice, yet the said Defendants not regarding their said promise and undertaking but contriving &c. have not as yet accounted to them the said Plaintiffs, or paid the said sum of money or any part thereof for the said goods or any part thereof (although they the said Defendants afterwards, to wit : on the sixth day of June, A. D. 1837, at Cuyahoga Falls, in the county of Portage aforesaid, were requested by the Plaintiffs so to do) and have hitherto wholly neglected and refused and still wholly neglect and refuse so to do, and the said sum of seven hundred and sixty dollars and seventy-five cents, still remains wholly due and unpaid to the said Plaintiffs, to wit : at Pittsburg, to wit : at Cuyahoga Falls, in the county of Portage aforesaid — Wherefore the Plaintiffs say, that the Defendants their said several promises not regarding, have not performed the same, although often thereunto requested and demanded, by reason whereof they the said Plaintiffs have sustained damage in the sum of twelve hundred dollars to recover which they bring suit &c. No. 68. Against Watercraft by Name ; 10 Ohio Rep. 384.* [Commence as in No. 1, Ante. 46, — Samuel B. Findlay, plain- tiff, complains of the Steamboat Monarch, which boat was seized and held in custody by virtue of a warrant issued against the said boat under and in pursuance of " an Act providing for the collection of claims against Steamboats and other watercrafts, and authorizing pro- ceedings against the same," defendant, in a plea of Assumpsit, for that whereas heretofore, to wit : on or about the first day of January, A. D. 1840, at the county aforesaid, the said defendant was indebt- ed to the said plaintiff, in the sum of one thousand dollars for the price and value of goods then and there sold and delivered by the said plaintiff to the said Steamboat Monarch, at her special instance and request, and in the sum of one thousand dollars for the price and value of goods then and there sold and delivered by the said plaintiff to the said Steamboat Monarch, at her special instance and request; and in the sum of one thousand dollars for money then and there had and received by the said Steamboat Monarch for the use of the plaintiff; and in the sum of one thousand dollars for money then and there found to be due to the said plaintiff from the said Steamboat Monarch, upon an account then and there stated between them ; in the sum of one thousand dollars for so much money by the said plaintiff paid, laid out and expended for the use of the said Steamboat Monarch, and at her request; and also in the sum of one thousand dollars for money then and there by the said plaintiff lent (a) See Declarations in Debt, Post. 12 90 ASSUMPSIT. Declarations — Special Cases. and advanced to the said Steamboat Monarch, at her special instance and request, and the said Steamboat Monarch, defendant aforesaid, afterwards, on the day and year aforesaid, in consideration of the premises, undertook and promised to pay the said last mentioned sev- eral sums of money to the said plaintitl' on request ; yet the said Steamboat Monarch, defendant aforesaid, hath disregarded the said promises and undertakings, and although of her requested, hath not paid the said several sums of money in this declaration mentioned, nor either of them, nor any part thereof, but to pay the same or any part thereof hath hitherto neglected and refused, to the damage of the plaintiff eight hundred dollars ; and therefore he brings suit, &c. No. 69. Guardian of an Insane Pet^sonw. Indorser of a Promis- sory Note ; 1 West. Law Journal, 454. "John Wageman, guardian of Charles Robinson, senior, an insane person, complains of John M. Brown, in a plea of assumpsit; for that whereas, on the — , at said county, one Holley Raper made his certain promissory note in writing, of that date, and then and there delivered the same to the said John M. Brown, and thereby promised to pay to the order of John M. Brown, ten hundred and eighty dol- lars, for value received, twelve months after the date thereof, which period has now elapsed ; and afterwards, to wit : on the — , at said county, the said John M. Brown indorsed the same to the said Charles Robinson, sen., and then and there dehvered the same to the said Charles. And whereas afterwards, to wit : on the — , at said county, the said Charles became, and was and yet continues to be, insane ; and so being insane, afterwards, to wit : on the — , at said county, an inquest was duly held before George McMahan, esquire, one of the associate judges of said county, for the purpose of trying whether the said Charles Robinson, sen., was or was not insane, upon which such proceedings were had that the said Charles Robinson, sen., was then and there found and adjudged to be insane ; which finding yet re- mains in full force, and unreversed. And afterwards, to wit : on the — , at said county, the said John Wageman was duly appointed by the Court of Common Pleas in and for said county, guardian for the said Charles Robinson, sen., and gave bond and was qualified as such guardian, in due form of law. Of which insanity, inquest and ap- pointment, the said John M. Brown then and there had notice. Yet the said Raper did not pay the amount of said note, although the same was duly presented to him for payment, when it became due, and the said John M. Brown had then and there waived notice of nonpayment. And the said Brown, afterwards, to wit : on the — , at said county, in consideration of the premises, then and there prom- ASSUMPSIT. 91 Declarations — Special Cases. ised to pay the amount of said note to the said John Wageman, guardian as aforesaid, on request, yet he has not done so." No. 70. On a warranty of Chattels-, 12 Ohio Rep. 24. Commence as in No. 1, Ante. 46.] For that whereas the said defendant "in consideration that the said plaintiff', at the special instance and request of the said defendant, would buy of him, the said defendant, a certain pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburgh, Pennsylvania, at and for a certain price or sum of money, to wit : the sum of one hundred and eighty dollars, to be paid therefor by him, the said plaintiff', he, the said defendant, undertook, and then and there faithfully promised the said plaintiff' that the said Millstones then were good, both in quality and workmanship ; and the said plaintiff" avers, that he, confiding in the said promise and un- dertaking of the said defendant, did afterwards, to wit : on the day and year aforesaid, at the county aforesaid, buy the said Millstones of the said defendant, and then and there paid him for the same, the said sum of one hundred and eighty dollars." Second Count : And also for that whereas the said defendant " in consideration that the said plaintiff", at the like special instance and request of the said defendant, had then and there bought of him, the said defendant, a certain other pair of French Buhr Millstones, four feet in diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain price, or sum of money, then and there agreed upon between him, the said plaintiff", and the said de- fendant, he, the said defendant, undertook, and then and there faith- fully promised the said plaintiff", that the said last mentioned pair of French Buhr Millstones, at the time of the sale thereof, were good, both in quality and workmanship, &c." Third Count : And also for that whereas the said defendant " in consideration that the said plaintiff, at the like special instance and request, of the said defendant, had then and there bought him, the said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price or sum of money, then and there agreed upon, between him, the said plaintiff", and the said defendant, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff", that the said last mentioned Millstones, at the time of the sale thereof, were good, both in quality and workmanship." Fourth Count : And also for that whereas the said defendant " in consideration that the said plaintiff", at the special instance and re- quest of the said defendant, had then and there bought of him, the 92 ASSUMPSIT. Declarations — Special Cases. said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price, or sum of money, then and there agreed upon by him, the said plaintiff', and the said defen- dant, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff, that the said last mentioned Millstones, at the time of the said sale thereof, were good, both in quality and workmanship." &c. No. 71. By a Bank v. Drawers or Indorser of a promissory note, bill fyc. jointly.'' [Proceed as in No. 1. Ante. 46, to the (*) — the defendant on — was indebted to the plaintiff in — dollars, for so much money before that time, lent and advanced by the said plaintiff to the said defendants, at their request, and the said defendants, afterwards on the day and year aforesaid, in consideration of the premises, prom- ised the said plaintiff to pay him the said sum of money on request : (a) It is provided by Statute, that " when any sum of money due and owing to any bank or banker shall be secured by mdorsement on the bill, note or obhgation for the same, it shall be lawful for such bank or banker, to bring a joint action against all the drawers or indorsers ;" and the plaintiff in such case may de- clare ior money lent and advanced : and if such bank or banker institute separate actions the plaintiff can re- cover no costs ; Stvati's Stat. 149, § 51. A Bank of another State may sue here in the same manner ; 12 Ohio Rep. 132 : See Form of Dec- laration, post. Statutory damages upon bills of Exchange drawn on persons out of the State may be re- covered in this mode of proceeding, but the proof of demand and protest, must be as in other cases ; 12 Ohio Rep. 182. By the Statute of xMarch 12th, 1844, (adopted from the State of N. York,) it is also provided " that in all actions brought by the lawful holder of any promissory note, due bill, or bill of exchange, the plaintiffor plain- tiffs may commence and prosecute a joint action, for money had and re- ceived, against all the original ma- kers and indorsers thereof; and may give such note or bill in evidence ; and each of the defendants may plead separate pleas, and make sep- arate defences, and if, upon the trial, any one or more of the defendants should make a successful defence, the court may, nevertheless, render judgment against the balance of said defendants ; and if any holder of any note, due bill, or bill of exchange, shall commence and prosecute sepa- rate actions against such makers or in- dorsers, he shall not recover costs in more than one of such actions." The proper construction to be put upon this Act, seems not yet settled ; See 18 Wend. 547; 3 Hill, 112, 470 ; 19 Wend. 125, 220, 043 ; 4 Hill, 35 overruling 19 Wend. 043; 4 Hill 503 ; and also a subsequent amendatory Act of the Legislature of New York. ASSUMPSIT. 93 Declarations — Special Cages. Yet the said defendants have disregarded their said promise, and have not, nor hath either of them, paid said sum of money, or any part thereof: To the Plaintiff's damage — dollars, and therefore he sues, &c. No. 72. The like, By a Bank of another State ; 1 2 Ohio Rep. 132. [Commence as in No. 1, Ante. 46.] "The President, Directors and Company, of the Bank of Kentucky, plaintiffs, complain against Henry Lewis and Samuel Lewis, defendants, in a plea of trespass upon the. case, upon promises &c. ; for that, whereas the said defend- ants, on the twenty-sixth day of April, 1842, at the county of Ham- ilton, and State of Ohio, aforesaid, were indebted to the said plaintiffs in the sum of four thousand dollars, for so much money before that time, lent and advanced by the said plaintiffs to the said defendants at their instance and request, and in consideration thereof, then and there promised to pay to the said plaintiffs the said sum of money when they should be thereto thereafter requested, yet the said de- fendants disregarding their said promise, and although often requested, have not as yet paid the said sum of money, nor any part thereof, but to pay the same have hitherto refused and still do refuse to the damage of said plaintiffs of six thousand dollars, and therefore, they bring suit, &c." No. 73. Against an Agent employed to sell Goods, for not obey- ing the orders of his Principal ; 1 Chitt. Prec. 49. [Commence as in No. 1. Ante. 46.] For that whereas heretofore, to wit: on [&^c. The exact day is not material,] in consideration that the plaintiff, at the defendant's request, had retained and em- ployed him, for commission and reward to him in that behalf, to sell and dispose of divers good, to wit: ( — hogsheads of sugar,) of great value, to wit : — dollars, for the plaintiff, the defendant then prom- ised the plaintiff to use due care and diligence in obeying the lawful and reasonable orders and directions of the plaintiff to be given by him to the defendant in regard to the sale and disposal of the said sugar by the defendant for the plaintiff; and the plaintiff avers that the defendant then had such sugars in his possession and charge, upon the terms and for the purpose aforesaid ; and the plaintiff after- wards, to wit: on [&fc.] ordered and directed the defendant, as such agent, to sell and dispose of the said sugar for the plaintiff at a certain price, to wit : the rate or price of — per cvvt. and not less, in case the same could be obtained by using due and reasonable care 94 ASSUMPSIT. Declarations — Special Cases. and diligence in that behalf, the same being a lawful and reasonable order and direction in that behalf, as the defendant then well knew : and although the defendant as such agent could and might, by using due care and diligence, have obtained and ought to have obtained for the said sugar, a large price, to wit : at the said rate of — per cwt., yet the defendant, not regarding his said promise, did not nor would use due care and diligence in obeying the said order and direction of the plaintiff, and then wrongfully, carelessly, and im- properly disobeyed the same, and neglected to sell the said sugar according to such order and direction, and by reason of the careless- ness, negligence, and improper conduct of the defendant in the premises, the plaintiff was afterwards, to wit: on [^c] forced to suffer the said sugar to be sold for a less price, to wit : — per cwt. and thereby the plaintiff sustained a great loss, to wit : — dollars upon and in respect of the price and value of the said sugar, and also by means of the premises, the said sugar was greatly wasted and deteriorated in value, and the plaintiff incurred a great and addi- tional expense, to wit : — dollars, in warehousing and keeping the same, and was and is otherwise injured, to the plaintiff's damage of — dollars, and therefore he brings his suit, &c. No. 74. On DefendanV s promise to pay the debt of a third person in consideration that Plaintiff would not sue him ; 1 Chitt. Prec. 117. [Commence as in No. 1. Ante. 46.] For that whereas one E. F. before and at the time of the making of the promise of the defend- ant next mentioned was indebted to the plaintiff in a certain sum of money, to wit : — dollars, [state enough,] and thereupon heretofore, to wit : on [^c] in consideration of the premises, and that the plain- tiff, at the request of the defendant, would forbear and give time to the said E. F. for the payment of the said sum of money until the — day of — then next, [as the case may be,] he the defendant un- dertook and then promised the plaintiff" to be answerable to him for the payment of the said sum of — dollars, and to pay him the same on the said — day of — then next, in case the said E. F. should then make default in paying the same ; and the plaintiff avers that he, confiding in the said promise of the defendant, did forbear and give time to the said E. F. for the payment of the said sum of money until the said — day of — , a. d. — , but that the said E. F., altliough he was afterwards, to wit : on the day and year last aforesaid and afterwards, requested by the plaintiff so to do, hath not as yet paid the said sum of money, or any part thereof, to the plaintiff, but hath therein made default, whereof the defendant then had notice, and ASSUMPSIT. 95 Declarations — Special Cases. was then requested by the plaintiff to pay the said sum, but the defendant hath not paid the same or any part thereof. [Add account stated, Ante. 38.] No. 75. Against the Hirer of goods for Carelessness ; 1 Chitt. Prec. 118. [Commence as m No. 1. Ante. 46.] — For that whereas here- tofore, to wit : on [&fc.] in consideration that the plaintiff, at the de- fendant's request, had let to hire and delivered to him [" a certain horse," or "certain goods, to wit: — "] of great value, to wit: — dollars, to be used by the defendant in that behalf, for reward to the plaintiff, he the defendant undertook, and then promised the plaintiff to use the said [horse] in a careful, moderate, and reasonable manner, under the said letting to hire, and to take due and proper care there- of whilst he the defendant had the same on hire as aforesaid ; and although the defendant then had the said [horse] on hire on the terms aforesaid, yet the defendant disregarded his said promise in this, to wit : that he did not nor would use the said [horse] in a careful, moderate, or reasonable manner, under the said letting to hire, and then used the same in a careless, immoderate, unreasonable, and improper manner ; and the defendant further disregarded his said prom- ise in this, to wit : that he did not nor would take due or proper care of the said [horse] whilst he had the same on hire as aforesaid ; and the defendant during that time, to wit : on the day and year aforesaid, therein made default, and behaved and conducted himself carelessly and improperly in that behalf; and by reason of the several premises the said [horse] then became and was and is greatly injured and lessened in value, and rendered of little or no use to the plaintiff. To the plaintiff's damage of — dollars, and therefore he brings his suit, &c. No. 76. On a conditional Promise to pay (" when able ") a debt barred by the Statute of Limitations ; 1 Chitt. Prec. 145. [Commence as in No. 1, Ante. 46, — For that whereas heretofore, and more than six years next before the making of the defendant's promise in this count secondly mentioned, to wit : on the 1 st day of January, A. D. 18"25, the defendant was indebted to the plaintiff in a large sum of money, to wit, — dollars, for, &,c., [state the debt as usual] and then promised the plaintiff to pay him the said moneys 96 ASSUMPSIT. Declarationi — Special Cases. on request; and whereas before and at the time of the makinjjjof the promise next mentioned, six years from the making of the said prom- ise by the defendant to pay the said moneys to the plaintitf, on re- quest, as aforesaid, and from the time the plaiiitill's cause of action thereon accrued had elapsed, and the rii;ht of action of \\\c. plaiiitilV against the defemUmt for the recovery of the said moneys had, by reason of such lapse of time, but not otherwise, become barred by virtue of the statute in such case made and provided, and at the time of the making of the promise next mentioned, the said moneys had not nor had any part thereof been paid, i)ut were wholly unpaid and in arrear and unsatisfied, and the plaintilf was justly entitled to re- ceive the same ; and thereupon, heretofore, and within six years next before the commencement of this suit, to wit, on the 17lh day of January, A. D. 1831, the defendant, in consideration of the i)remises, by a certain memorandum in writing, thcMi signed by him, undcMtook and promised the plaintilf to pay the said moneys to him the plaintilf when he the defendant should be able, in reference to his means and circumstances, so to do ; and the plaintiff avers, that afterwards, to wit, on the 1st day of January, A. 1). 183*2, the defendant became and was able, in reference to his means and circumstances, to pay the said several moneys to the plaintitf, yet he hath not paid the same or any part thereof. [Add Common Counts, Ante. 36.] No. 77. On a breach of Promise of Marriage ; 1 Chitt. Prcc. 148 [Commence as in No. 1, Anie. 46 — For that whereas heretofore, to wit, on [ttc] in consideration that the plaintilf, being uinnarried, at the request of the defendant, had then undertaken and jnomised the defendant to marry the defendant, he the defendant undertook and then promised the plaintitT to marry the plaintiff; and the plain- tiff avers, that she, confiding in the said promise of the defendant, hath always from thenco hitherto remained and still is unmarried, and was during all the time aforesaid, and still is, ready and willing to marry the defendant, whereof he always had notice ; and although the plaintiff, after the making of the defendant's said promise, to wit, on, Slc, [exact dai) not material] rc(iuested the defendant to marry her the said plaintiff, and a reasonable time for his so doing hath e- lapsed, yet the defendant, disregarding his said j)ronhse, hath deceived the plaintiff in this, to wit, that he did not nor would, within a rea- sonable time after he was so requested as aforesaid, or at any other time, marry her the said plaintiff, but hath wholly neglected and re- fused so to do, to the plaintiff's damage of — dollars, and therefore she brings her suit, Sic. ASSUMPSIT. 97 Declarations — Special Cases. No. 73. For a Reward offered for the discovery of an Offender ; 1 Chitt.'Prec. 157.^ [Commence as in Xo. 1. Ante. 46.] For that whereas heretofore. to wit: on [4*c.], the defendant caused to be published a placard or advertisement, whereby, after reciting that W. C. had been robbed, and that there was great reason to suppose that he had been murder- ed, the defendant did promise and undertake; that whosoever would give such information as might lead to a discovery of the murderer of the said W. C. should, on conviction, receive a reward of — dol- (a) A Constable who arrests an ofiender by virtue of a warrant, can- not maintain an action for a reward ; 12 Ohio Rep. 2S1. The Declara- tion in that case was as follows — and was overruled on Demurrer, on the ground that the Constable did no more than his dutj^, and public poU- cy will not allow such an Action : Daniel Lewis, (who was implea- ded with Moses D. Brooke as to whom the Sheriff of this County has returned Not found, late panners do- ing business in the name of Brooke & LfCwis,) was summoned to answer unto George Gillmore of a plea of assumpsit: For that whereas the said defendant and the said Brooke, here- tofore, to wit ; on the twent3--fourth day of August, A. D. 1S40, at :\Iil- lersport in said County, caused to be printed, published and circulated, a certain handbill or advertisement, bearing date the day and year afore- said, reciting, that on Saturday night the tn'enty-second of August, instant, (1840j the store of the said defendant and Brooke, at ^Millersport in said County, was broken open, and about seven hundred dollars in money sto- len therefrom, consisting principally of five and ten dollar bills on the Bank of Lake Erie, Cleveland, Ohio ; and by the said handbill and adver- tisement, the said defendant and the said Brooke, by the name and style 13 of Brooke & Levris did then and there promise and undertake to pay the sum of three hundred dollars to any person or persons, who would apprehend the aforesaid thief and and money, or two hundred dollars for the cash alone, and one hundred dollars for the thief alone. And the plaintiff avers ttiat he af- terwards, to wit : on the day and year aforesaid, at Fairfield county aforesaid, confiding in the aforesaid promises and undertakings of the said defendant and the said Brooke, so by them made in manner afore- said did then and there set about seeking out and discovering the thief aforesaid, and by diligent attention and inquiry' did then and there find out and discover that one James Nel- son, late of said Fairfield county, was the thief for whose discover}- and ap- prehension the said defendant and the said Brooke had offered and prom- ised the reward aforesaid, in manner aforesaid. And the plaintiff further avers that he still confiding in the aforesaid promises and undertakings of the said defendant and the said Brooke, and in order to effect the legal arrest of the said James Nelson, for the commission of the crimes aforesaid, afterwards, to ^vit : on the day and year aforesaid, at Fairfield county aforesaid, did go before one James Bail, Esq., then one of the acting 98 ASSUMPSIT. Declarations — Special Cases. lars, and that any person concerned therein, or privy thereto, except the person who actually committed the offence, should be entitled to such reward, and every exertion used to procure a pardon ; by the said placard or advertisement, the defendant directed *hat the said information should be given, and application for the said reward be made to him, or Mr. W. C. solicitor, Hereford ; and the plaintiff avers that he, confiding in the said promise of the defendant, and justices ot the peace within and for the county aforesaid, and make his written complaint on oath against the said James Nelson, accusing him, the said James Nelson or some other per- son of having committed the crime in said advertisement set forth and alledged — Whereupon the said James Ball, Esq., at the request of the said plaintiff, did then and there issue his Warrant upon said complaint, for the apprehension of the said James Nel- son for the crime aforesaid, according to the provisions of the Statute in such case made and provided ; and the plaintiff further avers that after- wards, to wit : on the day and year aforesaid, at Fairfield county afore- said, the said James Ball, Esq., de- livered the aforesaid Warrant by him issued as aforesaid, to the said plain- tiff in due form of law to be execu- ted, he, the said plaintiff then being one of the actingConstables of Walnut township in said County ; and the plaintiff avers that he afterwards, to wit : on the 25th day of August, A. D. 1840, at Fairfield, to wit : at Lick- ing county aforesaid, by virtue of said Warrant, arrested the aforesaid James Nelson for the crime aforesaid, who had been and then was guilty of the said offence in the said adver- tisement mentioned. And the said plaintiff further avers that such proceedings were after- Avards had in said prosecution, that afterwards, to wit : at the February term of this Court, A. D. 1841, at Fairfield county aforesaid, the said James Nelson was in due manner and according to due course of Law, convicted of the said offence, and the seven hundred dollars of money be- longing to said defendant and the said Brooke, which was found in the possession and custody of the said James Nelson, at the time of his ar- rest as aforesaid, was then and there restored to the said defendant and the said Brooke, to wit: at Fairfield county aforesaid, of all which sever- al matters and things they, the said defendant and the said Brooke, then and there had notice ; and thereby he, the said defendant and the said Brooke, then and there became lia- ble to pay to the said plaintiff the said reward of three hundred dollars in the said handbill and the said ad- vertisement mentioned, according to the tenor and effect of their said promises and undertakings in that behalf. Yet the said defendant and the said Brooke, not regarding their aforesaid promises and undertakings in this behalf made as aforesaid, but contriving and fraudulently intending have not as yet paid to the said plain- tiff the said reward of three hundred dollars in the aforesaid advertisement mentioned, or any part thereof, al- though to do this he, the said defen- dant and the said Brooke, were often requested so to do, to wit : on the day and year aforesaid, at Fairfield county aforesaid, but they to pay the same or any part thereof to the said plaintifl' have hitherto wholly neg- lected and refused, and still do neg- lect and refuse so to do ; to the dam- age of the said plaintiff' five hun- dred dollars, and therefore he brings suit, &c. ASSUMPSIT. 99 Declarations — Special Cases. not being the party who actually committed the offence, did after- wards, to wit: on [4^c.] give to the defendant such information as led to the discovery of the-smurderer of the said W. C. ; and that after- wards, to wit : at the assizes of our lord the king duly held at — , in and for the county of^H. on [fyc], one E. F. who was guilty of the said offence, to wit : %e murder of the said W. C, was in due course of law, tried for and obnvicted of the said murder, in consequence of such mformation so giMen by the plaintiff as aforesaid : of all which the defendant aftervva'^s, to wit: on [&fc.], had notice, and was then requested by the plaintiff to pay him the said sura of money. [Add Common Counts, Ante. 36.] No. 79. On a Promise to return or pay, hy a certain time, for a Horse taken on trial ; 1 Chitt. Prec. 1 QQ. [Commence as in No. 1, Ai^? 46.] For that whereas heretofore, to wit : on [<^c.] before the houj-Jof twelve o'clock at noon on the same day, in consideration that Uhe plaintiff, at the request of the defendant, would deliver a cert^ gelding of the plaintiff, of a large price and value, to wit : — dolftiis, to be had and used on trial by the defendant, he the defendant^undertook and then promised the plaintiff to return the said gelding to the plaintiff by twelve o'clock at noon on the day and -year aforesaid, or to pay him the said sum of — dollars for the same ; and the plaintiff avers that he, confiding in the said promise of the defendant, did afterwards, to wit : on [^c] aforesaid, before twelve o'clock at noon of the same day, deliver the said gelding to the defendant to be had and used on trial by him the defendant as aforesaid ; nevertheless the defendant, not regarding his said promise, did not nor would return the said gelding to the plain- tiff by twelve o'clock at noon on the day and year aforesaid, nor hath he hitherto (although on [«^c.] requested so to do,) paid the said sum of — dollars, or any part thereof, to the plaintiff for the same, but hath hitherto wholly neglebted and refused so to do. [Add Common Counts, Ante. 36.] No. 80. On the Promise of a Buyer of Goods to pay for them by a good Bill of Exchange ; 1 Chitt. Prec. 167. [Commence as in No. ], Ante. 46.] For that whereas heretofore, to wit : on [&-c.] in consideration that the plaintiff, at the defendant's request, would sell and deliver to him forty tons of iron, at the price of — per cwt., the defendant promised the plaintiff to pay him for the said iron by a bill of exchange drawn at three month's date, or made equal to cash in three months, on delivery of the said goods, 100 ASSUMPSIT. Declarations — By and agaitist Administrators. and that such bill should be satisfactory to the plaintiff: and the plaintiff avers that he, confiding in the said promise, afterwards, to wit: on [&c.] sold and delivered the said quantity of iron to the de- fendant upon the terms aforesaid, the price thereof at the rate afore- said, amounting to a large sum, to wit : — dollars, and although the plaintiff afterwards, to wit : on [&c.] requested the defendant to pay him the plaintiff the said price of the said iron by such bill of ex- change as aforesaid, and was always ready and willing to take the same according to said contract, yet the defendant hath not paid to the plaintiff the said price of the said iron by a bill of exchange pay- able in three months from the date thereof, or made equal to cash in three months, which was satisfactory to the plaintiff, or otherwise how- soever, but hath wholly neglected and refused so to do ; by means whereof the plaintiff liath lost and been deprived of the use and ben- efit of the said bill, and is otherwise injured. [Add Common Counts, Ante. 36. By and against Administrators. No. a. By an Administrator on Promises to the Intestate ; 1 Chitt. Prec. 44. [Commence as in No. 1, Ante. 46.] For that whereas the defen- dant in the life time of the said G. H., to wit : on [&c.] at [&,c.] was indebted to the said G. H., in — dollars, for goods then and there sold and delivered by the said G. H. to the defendant at his re- quest, [or as the cause of action may be,] and in — dollars, for money found to be due from the defendant to the said G. H., on an account then and there stated between them :* And the defendant, afterwards, on the day and year aforesaid, at the county aforesaid, in consideration of the premises respectively, promised the said G. H. to pay him the said moneys on request. Yet the defendant hath dis- regarded his promises, and hath not paid any of the said moneys, or any part thereof, either to the said G. H. in his life time, or to the plaintiff, as administrator aforesaid, since the death of the said G. H. ; to the damage of the plaintiff, as administrator as aforesaid, of — dollars, and thereupon he brings his suit, &c. [Add Profert as in No. 17, Ante. 54.] No. b. By an Administrator, laying a Debt to the Intestate, and a Promise to the plaintiff"; 1 Chitt. Prec. 45. [Proceed as in the last Form to the (*) — and said sums being in arrear, the defendant, in consideration of the premises, after the death of the said G. H., to wit : on [&c.] at [&c.] promised the plaintiff, ASSUMPSIT. 101 Declarations — By and against Administrators. as administrator as aforesaid, to pay him the said sums on request ; yet the defendant hath disregarded his promise, and hath not paid any of the said moneys, nor any part thereof, to the damage, &c. [ Conclude as in last Form.] No. c. By an Administrator on a Cause of Action arising after the Intestate's death ; 1 Chitt. Prec. 45. [Commence as in No. 1, Ante. 46.] For that whereas, the defen- dant, after the death of the said G. H., to wit: on [^c] at [^c] was indebted to the plaintiff, as administrator as aforesaid, in — dollars, for goods of the estate of the said G. H. then and there sold and de- livered by the plaintiff, as administrator as aforesaid, to the defendant at his request, [ Or as the cause of action may be ; showing that the cause of action springs from the estate, as thus :] and in the further sum of — dollars, for money due to the said G. H. in his life time from the defendant, and heretofore, to wit: on [^c] at [&fc.] found to be due from the defendant to the plaintiff, as administrator as afore- said, upon an account then and there stated between the plaintiff, as administrator as aforesaid, and the defendant ; and the defendant, in consideration of the premises, afterwards, to wit: on [^c] and at the county aforesaid, promised, &c. [ Conclude as in No. b. Ante. 100.] No. d. Against an Administrator on Promises by the Intestate ; 1 Chitt. Prec. 46. [Commence as in No. 1, Ante. 46.] For that whereas, the said E. F. in his life time, to wit : on [^c] was indebted to the plaintiff in — dollars, for goods sold and delivered by the said plaintiff to the said E. F. at his request, [or as the case may be :] and in — dollars for money found to be due from the said E. F. to the plaintiff on an account stated between them ;* and the said E. F. afterwards, to wit : on the day and year aforesaid, in consideration of the premises, respectively promised the plaintiff to pay him the said several moneys respectively on request ; yet the said E. F. in his life time, and the said defendant, as administrator as aforesaid since the death of the said E. F., respectively disregarded the said promises, and neither of them hath paid the said several moneys, or any part thereof; to the damage, &c. [Conclude as in No. b, Ante. 100.] 102 ASSUMPSIT. Declarations — By and against Administrators. No. e. Against an Administrator laying a debt from the Intestate, and a promise by the Administrator ; 1 Chitt. Piec. 47. [Proceed as in the last Form to the (*). And the said moneys being unpaid, the defendant, as administrator as aforesaid after the death of the said E. F., to wit: on [^c] promised the plaintiff to pay him the said sums on request, yet the defendant, administrator as aforesaid, hath not paid the said moneys, or any part thereof; To the plaintiff's damage, &c. [Conclude as in No. b. Ante. 100.] No. f. Against an Administrator on a Cause of Action ari- sing after the Intestate's death ; 1 Chitt. Prec. 48. [Commence as in No. 1, Ante. 46.] For that whereas, the de- fendant, as administrator as aforesaid, on [&c.] at [&c.] was indebt- ed to the plaintiff in — dollars, for money found to be due from the defendant, as administrator aforesaid, to the plaintiff, upon an account then and there stated between the plaintiff and the defendant, as ad- ministrator as aforesaid, of and concerning divers sums of money, due and owing from the said G. H., in his life time, to the said plain- tiff, and then and there in arrear and unpaid, and in consideration of the premises, afterwards, on the day and year, and at the county aforesaid, the defendant, as said administrator, promised the plaintiff, &c. [Conclude as in No. b. Ante. 100.] No. g. The like, in another Form; 1 Chitt. Prec. 48. For that whereas, the said plaintiff, and the said G. H., [the intes- tate,] on [&c.] at [&-C.] were jointly indebted to one R. in the sum of — dollars, and to secure the payment of the said sum, then and there made their promissory note, in writing, of that date, and deliv- ered the same to said R. ; by which they promised, jointly and sev- erally, to pay the said R. that sum in — months from that date, with interest therefor until paid. And afterwards, and after the decease of the said G. H. to wit : on [&c.] at [&c.] said note became due, and was unpaid, and said plaintiff was then and there requested by said R. to pay him the whole of said sum, and the interest till that time, which the said plaintiff then and there did, the interest and principal amounting to a large sum, to wit: — dollars ; of all which the said defendant, as such administrator, then and there had notice, ASSUMPSIT. 103 Declarations — By and against Executors. and thereby became liable to, and in consideration of the premises, then and there promised, as administrator as aforesaid, to pay him one half of the said principal and interest, to wit: the sum of — dollars, on request : yet, &.c. No. h. By Husband cmd Wife, Administratrix ; 1 Chitt, Free. 123. [Commence as in No. 1, Ante. 46.] A. B. and J. his wife, which said J. is administratrix of all and singular the goods, chattels and credits which were of G. H. deceased, at the time of his death, who died intestate, by E. F. their Attorney, complain of C. D., &c. [Pro- ceed as in ordinary cases, but in laying a promise to them, or breach, describe them, "■ the said A. B. and J. his wife, as administratrix as aforesaid," and conclude;] To the damage of the said A. B. and J. his wife, as administratrix as aforesaid, of — dollars, and therefore they bring their suit, &c. [Add Profert alledging award of admin- istratrix to the wife only, as No. 17, Ante. 54.] By and against Executors. No. i. By Executor on Promises to the Testator. [Confimence as in No. 1, Ante. 46.] For that whereas, the de- fendant, in the life time of the said G. H., to wit : on [&.C.] at [&c.] was indebted to the said G. H., in — dollars, for goods then and there sold and delivered by the said G. H. to the defendant, at his request, [or as the cause of action may be,] and in — dollars, for money found to be due from the defendant to the said G. H., on an account then and there stated between them ;* And the defendant, afterwards, on the day and year aforesaid, at the county aforesaid, in consideration of the premises respectively, promised the said G. H. to pay him the said moneys on request. Yet the defendant hath disre- garded his promises, and hath not paid any of the said moneys, or any part thereof, either to the said G. H. in his life time, or to the plaintiff, as executor aforesaid, since the death of the said G. H. ; to the damage of the plaintiff, as executor as aforesaid, of — dollars, and thereupon he brings his suit, &c. [Add Profert as in No. IT, Ante. 54.] No. j. The like, with a Count laying a debt to the Testator, and a promise to the Plaintiff'. [Proceed as in the last Form to the (*) — and said sums being in arrear, the defendant, in consideration of the premises, after the 104 ASSUMPSIT. Declarations — By and against Executors. death of the said G. H., to wit : on [&c.] at [&c.] promised the plaintiff, as executor as aforesaid, to pay him the said sums on re- quest ; yet the defendant hath disregarded his promise, and hath not paid any of the said moneys, or any part thereof, to the damage, &c. [Conclude as in last Form.] No. k. By an Executor on a cause of action arising after the Testator's death; 1 Chitt. Prec. 105. [ Commence as in No. 1, Ante. 46.] For that whereas, the de- fendant after the death of the said E. F., to wit : on [&c.] was in- debted to the plaintiff, as executor as aforesaid, in — dollars for goods, sold and delivered by the plaintiff, as executor as aforesaid, to the defendant at his request, [or as the cause of action may be ;] and in the further sum of — dollars for money found to be due from the defendant to the plaintiff as executor as aforesaid, upon an account stated between the plaintiff, as executor as aforesaid, and the defen- dant ; and the defendant, in consideration of the premises, afterwards, to wit : on [&c.] aforesaid, promised the plaintiff, as executor as aforesaid, to pay him the said moneys on request ; yet lie hath not paid any of the said moneys, or any part thereof; To the damage, &c. [Co7iclude as in No. i. Ante. 103.] No. 1. By an Executor, for Use and Occupation, to recover a quarter's Rent, where the Testator died during the currency of the quarter ; 1 Chitt. Prec. 105. For that whereas, the defendant, after the death of the said E. F., to wit : on the [&c.] was indebted to the plaintiff, as executor as aforesaid, in — dollars for the use and occupation of a certain messuage and certain lands and premises, with the appurtenances, of the said E. F. in his life time, and of the plaintiff, as executor as aforesaid, after the death of the said E. F., by the defendant at his request, and by the sufferance and permission of the said E. F. in his life time, and of the plaintiff, as executor as aforesaid, after the death of the said E. F. respectively, for a long time, which elapsed partly in the life time of the said E. F. and partly after his death, had held, used, oc- cupied, possessed, and enjoyed ; and in — dollars for, &c. [Add ac- count stated with plaintiff, as executor, with breach, and profert of ivill; See No. i, Ante. 103.] ASSUMPSIT. 105 Declarations — By and against Executors. No. m. By Executors, to recover the value of Work, ^c, done partly by the Testator, and finished by the Executors after his death, in pursuance of DefendanVs contract with him ; 1 Chitt. Prec. 107. [Commence as in No. 1, Ante. 46.] For that whereas, in the life time of the said G. H., to wit : on [&c.] at [&c.] it was, at the de- fendant's request, agreed by and between the said G. H. and the de- fendant, that the said G. H. should do, and cause to be done, for the defendant, certain works in and about the taking down, altering, and repairing certain houses, buildings, and premises, and should provide materials for the same works, and should be paid by the defendant for the same work and materials, the reasonable prices and value thereof, when said works should be completed ; and in consideration thereof, and that the said G. H. had then and there promised the de- fendant to perform the said agreement on his, the said G. H.'s part, the defendant then and there promised the said G. H. to perform the said agreement on his, the defendant's part ; and the plaintiffs aver, that the said G. H. then and there entered upon and proceeded with the said works, and found and provided materials for the same, and in part performed the same ; and afterwards, and before the same works were completed,' to wit : on [&c.] at [Slc] the said G. H. died ; and thereupon the plaintiffs, as executors as aforesaid, at the defendant's request, and in performance of the said agreement, pro- ceeded with, and did, and caused to be done, the remainder of tlie said works, and found and provided certain materials of the plain- tiffs, as executors as aforesaid, for the same ; and afterwards, to wit : on [&c.] at [&c.] the said works, so agreed to be done, were com- pleted by the plaintiffs, as executors ; and the plaintiffs aver, that the reasonable prices and value of the said several works done, and ma- terials for the same provided, as in this count mentioned, amounted to a large sum, to wit : — dollars, whereof the defendant then and there had notice, and then and there became liable to pay the same to the plaintiffs, as executors as aforesaid, on request ; yet the defen- dant hath not paid the same, or any part thereof. [Add Common Counts, and conclude as in No. i. Ante. 103.] No. n. Against an Executor on a cause of action arising after the Testator's death; 1 Chitt. Prec. 107. [Commence as in No. 1, Ante. 46.] For that whereas, the defen- dant, as executor as aforesaid, on [&c.] was indebted to the plaintiff in — dollars for money paid by the plaintiff for the use of the de- fendant, as executor as aforesaid, at his request ; and in — dollars 14 106 ASSUMPSIT. Declarations — By and against Husband and Wife. for money found to be due from the defendant, as executor as afore- said, to the plaintiff, upon an account stated between the plaintiff and the defendant, as executor as aforesaid ; and the defendant, as exec- utor as aforesaid, in consideration of the premises, afterwards, on the day and year aforesaid, promised the plaintiff to pay him the said moneys on request ; yet the defendant, as executor as aforesaid, hath not paid the said moneys or any part thereof: To the plaintiff's dam- age of — dollars, and therefore he brings his suit, &c. By and against Husband and Wife. No. o. By Hiishand and Wife for Goods sold, ^c, hy the Wife before Marriage; 1 Chitt. Prec. 122. [Commence as in No. 1, Ante. 46.] For that whereas, the de- fendant, whilst the said E. was unmarried, to wit : on [&fC., any day before the marriage,'] at [iScc] was indebted to the said E. in — dol- lars, for goods then and there sold and delivered by the said E. to the defendant, at his request, [state any other debt in the same manner,] and in — dollars, for money found to be due from the defendant to the said E. upon an account then and there stated between them ; and the defendant, in consideration of the premises, whilst the said E. was unmarried, to wit : on the day and year aforesaid, at the county aforesaid, promised the said E. to pay the said moneys on request ; yet the defendant hath not paid the said moneys, or any part thereof, to the said E. whilst she was unmarried, or to the plaintiffs or either of them, since their intermarriage. To the damage of the plaintiffs of — dollars, and, therefore, they bring their suit, &c. No. p. Against Husband and wife^for Goods sold to her, SfC., before Marriage. [Commence as in No. 1, Ante. 46.] For that whereas, the said E., whilst she was unmarried, to wit : on [&c.] at [(Sec] was indebt- ed to the plaintiff in — dollars for goods then and there sold and de- livered by the plaintiff to the said E., at her request ; and in [state any other debt and account stated with her;] and the said E. whilst she was unmarried, to wit : on the day and year aforesaid, at the county aforesaid, in consideration of the premises, promised the plain- tiff to pay him the said moneys on request; yet the said E., whilst she was unmarried, did not pay, nor have the defendants, nor hath either of them, 'since their intermarriage, paid the said moneys, or any part thereof; To the plaintiff's damage of — dollars; and, therefore, he brings suit, &,c. ASSUMPSIT. 107 Declarations — By and against Partners. By and against Partners.* No. q. By a surviving Partrier, for Goods sold by the late Firm ; 1 Chitt. Prec. 153. [Commence as ill No. I, Ante. 46, Qiot noticing the deceased. See Forms cf commencement ivhere the death occurs after the writ, Ante. 37.] P'or that whereas, the defendant, in tlie life time of one E. F., since deceased, to wit ; on [ttc] at [&.C.] was indebted to the plaintiff, and the said E. F., in — dollars, for goods then and there sold and delivered by the plaintiff, and the said E. F., to the defen- dant, at his request, and in [t^'C, stating any other debt,] and in — dollars, for money found to be due from the defendant to the plaintiff, and the said E. F., upon an account then and there stated between them ; and the defendant, in consideration of the premises,* then and there promised the plaintiff, and the said E. F., since deceased, to pay them the said moneys, on request ; yet the defendant hath not paid any of the said moneys, or any part thereof, to the said plaintiff, and the said E. F., or either of them, in the life time of the said E. F., or to the plaintiff, since the death of the said E. F. [If it be mate- rial to prove a promise to the plaintiff, since the death, add the fol- lowing count: "and whereas, also," &fc.,as above, to the asterisk, " after the death of the said E. F., to wit : on [&c.] at [&c.] prom- ised the plaintiff to pay him the last mentioned moneys, on request ; yet the defendant hath not paid the same, or any part thereof." To the plaintiff's damage of — dollars, and therefore he sues, &c. No. r. Against a surviving Partner ; 1 Chitt. Prec. 153. For that whereas, heretofore, in the life time of one E. F., since deceased, to wit : on [&c.] at [&c.] the defendant and the said E. F., were indebted to the plaintiff, in — dollars, for goods then and there sold by the plaintiff to the defendant and the said E. F., at their request, and in [&c.] and the defendant and the said E. F., since de- ceased, in consideration of the premises, then and there promised the plaintitl' to pay him the said moneys on request ; yet the defendant, and the said E. F., in his life time, did not, nor did either of them, pay, nor hath the defendent, since the death of the said E. F., paid any of the said moneys, or any part thereof. To the plaintiff's dam- age, &c. (a) For Declarations By and A- name of the Firm, without designa- gainstPartners,on Promissory Notes, ting the names of the individuals; See Nos. 3 and 4, Ante. 48. Part- Ohio Statutes, Vol. 44, p. 66; See ners may sue and be sued by the Pleas in Matement. 108 ASSUMPSIT. Defence. Defence. The Common Law Rules of Defence are hardly known in Ohio. The Defence commonly made here is found in the Commencement of the Plea in Bar, thus: "And the said C. D. comes and defends," &c. A greater degree of nicety is said however to be necessary in Pleas in Abatement; Story PI. 1, 2, 3, 5; Danes Abg. 681. But even in such cases the " when, &c." is held to be half ox full defence, as occasion may require ; 8 T. R. 631. Eacii party is bound to take notice of the tiling of the pleadings of his adversary, without service of a copy, or any other notification ; Swan's Stat. 660, 708. Pleas in Abatement.'*^ No. 1. Want of Parties, Plaintiff's. — Common Pleas. And the said C. D. comes and defends, &c. When, &c. and prays judgment of the writ and declaration aforesaid, because he says that the said promises in said declaration mentioned, if any such were made, were, and each and every of them was made by the said (a) It is provided by Statute, that it has been taken away by an Act of no Plea in Abatement shall be receiv- the Legislature ; such want of juris- ed, (other than a plea to the jurisdic- diction, it seems, may be plead in tion of the Court, or when the truth bar ; and is not properly the subject of the plea appears of record,) unless of a plea in Abatement; Nichol v. the party offering it shall file an affi- Patterson, 4 Ohio Rep. 200. The davit of its truth; Sloan's Stat. 6G1, division of personal actions into local § 65. A plea in Abatement, unless and transitory is not known in Ohio: pleaded by a married woman, may Personal actions may be prosecuted be pleaded in person or by attorney ; in any County where process can be 2 Saund. 209('aj. Pleas to the ju- served on the defendant : A Plea in risdiction are to be pleaded in person; Abatement, therefore, in Debt for 1 Chitt. Prcc. 17. A plea in Abate- rent, That the rent accrued in anoth- ment cannot be amended ; TicUrs er County, and so out of the juris- Pr. G38. And a demurrer even for diction of the Court, is bad on de- informality not constituting a defect murrer ; Genin v. Grier 10 Ohio in substance, may be general; 2 Rep. 209. For i^orwis of Judgments Matde fy Sel. 484. Where a Court on Pleas in Abatement, See Judg- has no Common Law jurisdiction, or ments in Assumpsit, Post. ASSUMPSIT. 109 Pleas m Abatement. C. D. to the said A. B. and one E. F. jointly, and not to the said A. B. separately without the said E. F., and that the said E. F. at the time of the suing out and service of said writ, was and still is living, to wit, at — &LC. and this the said C. D. is ready to verify : where- fore inasmuch as the said E. F. is not named in said writ and decla- ration, the said C. D. prays judgment, and that the said writ and declaration may be quashed ; and also for his costs. By F. his AWy. Affidavit to plea in Abatement.* C D. the above named defendant, makes oath and says that the above plea*" by him pleaded is true'^ in substance and matter of fact. Sworn, &c. C. D. No. 2. Want of Parties, Defendants^ — Common Pleas, or. Supreme Court. [Commence as in No. 1. Ante. lOS.] — because he says, that the said several promises in said declaration mentioned, if any such were (a) The title of the cause must be plead the former recovery — Held no accurately stated. An affidavit en- Bar; 4 Eng. Com. Law Rep. 410. titled, "E. P. and Mary Jinn,\\\% In Foreign Attachment, it is a good wife, defendants," the declaration be- plea in Abatement, that another per- ing, "E. P. and Ann Mary, his wife, son, in life, is a partner with the de- defendants," held bad ; 1 Dowl.P. fendsint; Cotvdinv. Hiirford, i Ohio C. 693. The Affidavit may be by a Rep. 132; S. P. Taylor v. McDon- third person ; 2 Arch. 546. aid, 4 Ohio Rep. 149. If the Plain- /UN ,. A ffij U11 ■ ^ A e cL ^ •>■> tiff in his writ omits any dne or more (b) "Affidavit mstead of "plea c i- • ^ . ^ "^ j u "^ u ij 1, J 1 n 7 T> r< oo 01 several lomt contractors, advantage here, held bad; 1 Dowl. P. C. 28. i, . i e-^-u \ ■ \-l r may be taken of it by plea in Abate- (c) Affidavit that "the plea is ^ent; or by Demurrer, if the defect true," held insufficient ; Stra. 795. appears on the Declaration ; McAr- (d) A. sues B. who pleads in A- thur v. Ladd, 5 Ohio Rep. 514. It batement -that divers others ought to is provided by Statute that when one have been joined, on which issue was or more of the partners of any corn- taken, and found for A. with \s. pany or association are sued, and the damages: A. then sues the others person or persons so sued shall plead named in the plea of Abatement, Avho in Abatement, that all the partners 110 ASSUMPSIT. Pleas in Abatement. made, were made by one E. F. and one G. H. jointly, with the said C. D. and not by the said C. D. alone, and which said E. F. and G. H. are and each of them is still living, to wit, at — &c., and this he are not joined in the writ, the plain- tiff may forthwith sue out a summons against the partners named in the plea, and proceed as if they had been included in the original suit ; and if the partners named in the plea cannot be found, the plaintiff, on the return of the summons, may suggest in the declaration the names of those not found, and proceed as in other cases where service is only made on partof the defendants ; Swan's Slat. 661 § 66. If it be certain, beyond any doubt, that the persons named in the plea ought to be parties, it would seem, under the provisions of the Statute, that the plaintiff' would be safe in issuing the Summons, at once, without stopping to take the verdict of a jury upon the Plea ; but if there be any reason to doubt the truth of the Plea, the safer course seems to be, to submit the issue to a jury. The issue is made up by putting in a Replication to the Plea ; Post. No. 3. Form of a Verdict for the De- fendant. A— B— ,-) C— D— ,J In Assumpsit. This 'day came the parties by their Attorneys, and thereupon came a jury, to wit, S. S., &c., who being empanneled and sworn as well to try the issue joined between the parties, as to assess the damages of the said A. B. by reason of the not perform- ing of the said several promises in the declaration mentioned, in case the said issue shall be found for the said A. B., upon their oaths do say, that the said several promises in said declaration mentioned (*) were made by the said E. F. and G. H. jointly with the said C. D. and not by the said C. D. alone, as the said C. D. in his said plea hath in that behalf alleged ; and thereupon the said A. B. has leave to issue a Summons against the said E. F. and G. H. ac- cording to the Statute in such case made and provided. Praecipe for a Summons. A— B-,-) — V. y As! C- D-,J - Common Pleas. In Assumpsit : Damages Dollars. Issue a Summons against E. F. and G. H. returnable forthwith, or, at next Term, to appear and answer in this action jointly with the said C. D. Indorse, &c. [^Proceed as in ordi- nary cases. Ante. 13.] Writ or Summons. [seal.] The State of Ohio, To the Sheriff' of — County, Greet- ing: We command you to summons E. F. and G. H. to appear before our Court of Common Pleas, within and for the county aforesaid, at the Court House in said County forthwith [if in Term time'] or, on the first day of their next term [if in vacation] to answer unto A. B. in a certain ac- tion of assumpsit, now pending in said Court wherein the said A. B. is plaintiff" and one C. D. defendant, and Avherein the said C. D. by his plea in abatement duly filed, accord- inof to the Statute in such case made ASSUMPSIT. Ill Pleas in Abatement. is ready to verify : wherefore, because the said E. F. and G. H. are not, nor is either of them named in said writ and declaration, the said C. D, prays judgment of the said writ and declaration, and that the same may be quashed, &c. [Add Affidavit as in No. 1. Ante. 109. J No. 3. Replication that the Defendant alone promised. A— B— , ^ V. > In Assumpsit. C— D— , ) The plaintiff says that his said writ and declaration ought not to be quashed, because he saith that the said several promises were not, nor was either of them, made by the defendant jointly with the said E. F. and G. H.^ in manner and form as the defendant hath in his said plea alleged ; and this the plaintiff prays may be inquired of by the country, &. and provided, has alleged that the said E. F. and G. H. are with him jointly liable to the said A. B. in the action aforesaid, and have you then there this writ. Witness, &c. On the return of the Summons, the Statute seems to contemplate the filing of a new declaration, or an amendment of the old one, so as to present the plaintiff's case in the same way as if all the parties had been brought in at first. Form of Verdict for the Plain- . TIFF. [Proceed as before to the (*) — were not, nor was either of them, made by the defendant jointly with the said E. F. and G. H. in manner and form as the said C. D. in his said plea hath in that behalf alleged ; and thereupon the jury assess the damages of the said A. B. by reason of the not performing of the said sev- eral promises in the declaration men- tioned to — Dollars : Therefore, It is considered, &c. [^Judgment in the usual Form.'] The Judgment, upon a Verdict in favor of the plaintiff, upon an issue joined in a plea of Abatement, is final, and the Jury assess the dama- ges; Tidd's Pr.^dlQ; 2 Wils.'Ml. But a judgment for the plaintiff' on demurrer to the plea is not final, but a respondeas ouster; Tidd's Pr. 979; Felv.U2. If a party liable be omitted, the plea will not be sup- ported ; 6 Taunt. 587. For Forms of Judgments, See Judgments in Assumpsit, Post. (a) Or the rephcation may be, " that the promises were and each of them was made by defendant only;" and semble, in such case the plaintiff' certainly has to begin ; loung v. B aimer, 1 Esp. R. 103. Where the replication is as in the text, it ap- pears that the issue is on the defend- ant, and that he should begin, at least where the debt is admitted ; 3 Stark. 113 ASSUMPSIT. Pleas in Abatement. No. 4. Plea of Misnomer."^ > — Common Pleas, or, Supreme Court. Joseph Styles, sued by the name of John Styles, ats. John Nokes. And Joseph Styles, against whom the said John Nokes hath sued out his said writ of Summons, or. Capias ad respondendum, by the name of John Styles, in his proper person, comes and says, that he 2d ed. 1. Mr. Starkie adds in a note, " In Hoby v. Howard, 2 Stark. R. 555, Abbott, C. J. held that the plaintiffought to begin. So in Stans- Jield V. Levy, 3 id. 8. But in the latter case the plaintiffhaving proved the amount of his demand, was al- lowed to reserve his evidence in an- swer to the plea, until the evidence in support of it had been adduced on the other side. In the subsequent case of Lacon v. Higgins, 3 Stark. R. 178, his lordship intimated, that if the plaintiff elected to begin, he ought to go into the whole of his case ; but there defendant's counsel began, having admitted the amount of the debt claimed. Bayley, J. at the York Summer Assizes, 1821, directed that " defendant should be- gin, and that the amount of damages should, if necessary, be tried after- wards." The third party named in the plea is a competent witness for plaintiff; but it appears not for de- fendant, without a release of his share of costs ; 2 Stark. Ev. 2d ed. 3. (a) To a plea in Abatement of a misnomer of the plaintiff, a rephca- tion that he is known as well by the one name as the other, is good; Goodenow v. Tappan, 1 Ohio Rep. 60. The marriage of a feme sole, one of several plaintiffs, pending the suit, is a good plea in Abatement puis darrein continuance. Garver v. Morgan, 7 Ohio Rep. 179, Part 1st. If one sues in a wrong name before a Justice of the peace, but on appeal to the Court of Common Pleas, declares in the right one : and the defendant pleads over to the merits : the irregularity is cured ; Tfllson v. Triistees of No. 16, 8 Ohio Rep. 174. But by the Act of 1845, {vol. 43, p. 114, § 4) no plea in Abate- ment, for Misnomer, is allowed, in any personal action ; but the defend- ant may have the declaration amend- ed by inserting the right name, upon notice to the opposite party, issued by the Clerk of the Court, founded upon an affidavit of the right name. For proceedings under this Statute, See Practice at Law, Motion to a- mend. Post. In actions upon bills of exchange, promissory notes, or other written instruments, when any of the parties are designated by the initial letter or letters, or any contraction, of the Christian name, they may be designated in the same way in affi- davits to hold to bail, or in process, or in the declaration ; Ohio Statutes, vol. 43, p. 1 14, § 5. By the Act of 1846 (vol. 44, p. 66) any unincorpo- rated company or association, may sue or be sued, in the name such company, partnership, or association, may have assumed, or be known by ; and in such case, it is unnecessary ASSUMPSIT. 113 Pleas in Abatement. has always hitherto been called and known by the Christian name of Joseph, to wit, at the County of — aforesaid ; without this, that he the said Joseph Styles now is, or at any time hitherto hath been, called or known by the Christian name of John, as by the said writ is above supposed ; and this he the said Joseph Styles is ready to verify : wherefore he prays judgment of the said writ, and that the same may be quashed, &-c. [Add Affidavit as in No. 1. Ante. 108.] No. 5. Replication. The party is known as well by the one name a^ the other. — Common Pleas. And the said John Nokes saith that his said writ and declaration, by reason of any thing in the said plea above alleged, ought not to be quashed ; because he saith, that the said Joseph Styles, long be- fore, and at the time, of suing out the said writ, was and still is called and known as well by the name of John Styles, as by the name of Joseph Styles to wit, at the County of — aforesaid ; and this he the said John Nokes prays may be inquired of by the county, &c. No. 6. Another action pending."" [Commence as in No. 1. Ante. 108,] — And the said C. D. comes and defends, &.c. when, &c. and says that he ought not to be com- pelled to answer to the said writ and declaration of the said A. B. lo set forth, in the process or plead- action, in the Court of another State, ings, or to prove at the trial, the since the last continuance, cannot be names of the persons composing such pleaded in Abatement of the original company : the process may be served suit : and if the matter in abatement by a copy left at their usual place of he pleaded, puis darrein continuance, doing business within the county. the judgment, if against the defend- ant, is peremptory. A subsequent (a) The pendency of another ac- suit may be abated by an allegation tion-in a Superior Court at Westmin- of the pendency of a prior suit, but ster, (not an inferior Court) maybe the converse does not hold in personal plead in Abatement (not in Bar:) but actions ; 1 Wheat. 215. The better judgment recovered may be plead in rule seems to be, that it is not neces- Bar ; 1 Chitt. Prec. 201 ; 3 Bowl, sary to aver that the former suit is P. C. 579. The commencement of pending at the time of the plea plead- another suit, for the same cause of ed ; and that if the ^rsMvas pending 15 114 ASSUMPSIT. Pleas in Abatement. because he says, that the said A. B. heretofore, to wit, at a Court of — held at — within and for the county of — on — impleaded the said C. D. in a plea of Assumpsit, and for the same cause of action in the declaration aforesaid mentioned, as by the record thereof in the same Court remaining, appears ; and that the parties aforesaid to and in the plea aforesaid, in the said Court of — and the said A. B. the now plaintiff here, and the said C. D. the now defendant here, are the same persons, and not other or different ; and that the plea aforesaid in said Court of — yet remains undetermined ; wherefore he prays judgment if he ought to be compelled to answer to the writ and declaration aforesaid, and for his costs, &-c. \^Add affidavit as in No. 1. Ante. 109.] No. 7. Replication. Nul tiel record. And the said A. B. says, that, notwithstanding any thing by the said C. D. above alleged, the said C. D. ought to be compelled to answer the writ and declaration aforesaid, because he says, that there is not any such record of the plea aforesaid had in the said Court of — existing, as the said C. D. hath above alleged ; and this he is ready to verify ; wherefore he prays judgment, and that the said C. D. may answer to his said writ and declaration, &c. when the second was commenced, of Common Pleas within and for said the latter may be abated as vexatious Franklin county then next ensuing, ah initio; Gould's PI. Cap. 5. § 125 ; to wit, the Term of — A. D. — and 1 Saund. Pi. & Ev. 18 ; 1 Chitt. PI. the said Avrit of Summons being 454, note (1,) 10th Amer. Ed. ; 3 served upon said defendant and re- New Hamp. Rep. 36 ; 8 Conn. 71 ; turned in due form of law, the said 17 Pick. 510 : But See 1 Johns, plaintiff thereupon afterwards, to wit, Cas. 397 ; 4 Dana, 62 ; 21 Wend, on — agreeably to the rules and 340 ; 3 Rawle 320. In some cases, practice of said Court, declared it seems advisable, to set out the facts against the said defendant in the said specifically, thus : The said defend- plea of assumpsit, to wit, at the ant comes and defends, tfcc. — be- county of Franklin aforesaid; and the cause he says that the said plaintiff, defendant avers that the writ and heretofore to wit, on — at the county declaration aforesaid were for the of Franklin in said State of Ohio, same cause of action as the writ and sued out of the Court of Common declaration in this now present ac- Pleas of said Franklin county, a tion, as by the record thereof, tfec. certain writ of Summons against the appears, &c. See Judgments in As- said defendant in a plea of assumpsit, sumpsit, Post, returnable at the Term of said Court ASSUMPSIT. 115 Pleas in Abatement. No. S. Replication. New Assignment that the Action is different.^ And the said A. B. says, that notwithstanding any thing by the said C. D. above alleged, the said C. D. ought to be compelled to answer the writ and declaration aforesaid, because he says, that he issued his said writ and declared thereon, not for the cause of action in the said plea mentioned, but for another and dilierent cause of action, to wit, the promises in the said declaration mentioned, being other and different promises than the promises in the said plea men- tioned : and this the plaintiff" is ready to verify : wherefore he prays judgment and his damages, by reason of his cause of action above newly assigned, to be adjudged to him, &.c. No. 9. Plea in Abatement of the Coverture of Plaintiff}" C — D — ,"] The defendant, by E. F. his attorney, [or "in per- ats. son,"] prays judgment of the said writ and declaration, A — H — , I because he says that the plaintiff, at the time of the suing by [commencement of this suit, was and yet is married to the name 1 one G. H., who is still living ; and this the defendant is of A. B — . J ready to verify ; wherefore, because the said G. H. is not named in the said writ and declaration, the defendant prays judg- ment of the said writ and declaiation, and that the same may be quashed, &c. [Add affidavit as in No. 1. Ante. 109. No. 10. Plea in Abatement — Coverture of Defendant." C — F — , ^ The defendant, C. F., sued by tiie name of C. D. sued by the in person, prays judgment of the said writ and dec- name of ■ laration, because she says that at the time of the C — D — , [commencement of this suit she was and still is mar- ats. I ried to one E. F., who is still living; and this the A — B — . J defendant is ready to verify ; wherefore, because (a) The plaintiff may deny the former suit, or new assign that he is suing upon a different cause of action ; 1 Esp. Rep. 453. at the time of the contract may be pleaded in Bar ; 2 Stark. Ev. 2d ed. 389, 390 ; 1 Chit. PL 5th ed. 483, 511 ; Milnes v. Milnes, 3 T. R. 827. (b) The plaintiff's coverture after (c) Coverture at the time of the the contract was made can only be contract may be pleaded in Bar ; pleaded in Abatement : her coverture marriage after the contract, must be 116 ASSUMPSIT. Pleas in Bar — Replications, &c. the said E. F. is not named in the said writ and declaration, the defendant prays judgment of the said writ and declaration, and that the same may be quashed. [Add Affidavit as in No. 1, Ante. 109.] No. 11. Replication — that Defendant is not married."^ A — B — , ^ The plaintiff says that this said writ and declaration ats. > ought not to be quashed, because he says that the defen- C — D — . } dant was not nor is she married to the said G. H. in the said plea mentioned, in manner and form as the defendant hath in her plea alleged ; and this the plaintiff prays may be inquired of by the country, &c. No. 12. No such person, in esse. [Commence as in No. 1, Ante. 108 — because he says that there is not, nor on the day of the suing out and service of said writ, was there in being, any such person called A. B. of — &c., as by the said writ is above supposed, and this he is ready to verify : where- fore, he prays judgment, &c. [Co7iclude, and add Affidavit, as in No. 1, Ante. 108.] For proceedings upon a Demurrer to a Plea in Abatement, See Demurrers in Assumpsit, Post. For Judgments upon pleas in Abatement, See Judgments in As- sumpsit, Post. Pleas in Bar — Replications, &c. The St. 4 Anne, c. 16, *§> 4, 5, which permitted several matters to be pleaded in bar, has been substantially adopted in Ohio ; Small's Stat. 661, <§) 63. In England, it was their early practice, to apply to the Court for leave to file several pleas, though before the adoption of their new system of pleading, the old practice had been broken in upon ; 15 Eng. Com. Law Rep. 295. With us, several pleas are filed as of course. In England, if the rule was used improperly, the Court, on application of the plaintiff, rescinded it ; 15 Eng. Com. Law Rep. 360. Our Courts afford similar relief on motion to strike the pleas from the record. pleaded in Abatement ; 2 Stark. Ev. (a) If plaintiff admit the cover- ed ed. 397 ; 1 Chitt. PI. 5th ed. 511 ; ture but rely on any exception to the Milnes v. Milnes, 3 T. R. 631, general rule, he must reply specially. ASSUMPSIT. 117 Pleas in Bar — RepIicatioRs, &c. By the Act of 1845, several Replications and Rejoinders are also allowed ; Ohio Stat. vol. 43, p. 115, <§> 7. The execution of a note, bill of exchange, &c., declared upon, requires no proof, unless the defendant, with his plea, files an affidavit of the truth thereof; Sivan's Stat. 325, <^ 1. Aliter, if the declaration contain only the Common Counts ; 16 Oliio Rep. 262. No. 1. General Issue with Notice of Set-off'.^ C_ D— , ^ ads. > — Com. Fleas, or, Sup. Court. A— B— . ) And the said C. D. comes and defends, &c., and says that he did (a) A former recovery cannot be given in evidence under the General Issue, without Notice ; Inman v. Jenkins, 3 Ohio Rep. 271. Notice under the General Issue must be of matter which if pleaded, would bar the action ; and the matter must be set out with such certainty that if put in the form of a plea, it would be good on general demurrer ; Rey- nolds V. Rogers, 5 Ohio Rep. 169 ; S. P. Brazee v. Blake, 5 Ohio Rep. 340; 13 Ohio Rep. 21. Facts set out in a Notice cannot be used by the plainiiff, as evidence in the case; SutliffY. Gilbert, 8 Ohio Rep. 405. S. P. if the General Issue be plea- ded ; 5 Taunt. 282. Matters of de- fence arising after plea filed, cannot be taken advantage of by Notice — It must be by plea puis darrein con- tinuance ; Longworth v. Flagg, 10 Ohio Rep. 300, Payment may be given in evidence under the Gener- al Issue in assumpsit ; Sheets v. Baldivin, 12 Ohio Rep. 120. To make good a plea, it must be, it seems — 1. Direct and positive, and not argumentative. 2. Single, con- taining but one matter. 3. Conven- iently certain as to Time, Place and Persons. 4. Capable of Trial. 5. An answer to the plaintiff's allega- tion in every material point ; Rum- barger v. Stiver, 6 Ohio Rep. 99. The defendant cannot plead specially Avhat amounts to the general issue ; 14 Ohio Rep. 91. The Plea must answer the entire declaration, or it is bad on Demurrer ; 14 Ohio Rep. 257. Duplicity in a Replication, is no ground of error, after a verdict finding the Replication true ; 3 Ohio Rep. 368. Sham pleading — what it is and how treated ; 1 Blackf. 347. Under the Act of 1831, the plea of plene administravit, tenders an im- material issue, and may be struck out on motion ; Jlhhott v. Cole, 5 Ohio Rep. 86. In a plea by the Surety, That the creditor gave the Principal further time, the want of consent on the part of the Surety must be aver- red ; Bank of Steuhenville v. Car- rol, 5 Ohio Rep. 207. A Plea of notice, under the Statute, by the se- curity to the creditor, to proceed against the principal must aver, that the notice was in writing ; otherwise it is bad on demurrer ; Heading ton V. Neff, 7 Ohio Rep. 229, Part 1st. After demurrer to plead overruled, the Court in Bank will give leave to withdraw the demurrer and reply to the plea ; Case v. .Rdams, 3 Ohio Rep. 223. Duphcity in a Replica- 118 ASSUMPSIT. Pleas in Bar — Replications, tStc. not assume and promise, [if an administrator, say, " the said E. P." the intestate, " did not assume and promise, ^c."] in manner and form as the said A. B. hath declared against him ; and of this he puts himself upon the country ; and the said A. B. doth the like, &c^ By S., his AtVy. tion is no ground of error after a ver- dict finding the Replication true ; Richmond \. Patterson, 3 Ohio Rep. 368. In Replevin, under the Stat- ute, several Replications may be put in ; Cotter v. Doty, 5 Ohio Rep. 393. A demurrer may be withdrawn, on terms, and leave given to reply ; Kent V. Bierce, 6 Ohio Rep. 33G. It is error to render final judgment while a plea remains on the record Avithout any Replication ; Headhj v. Roby, 6 Ohio Rep. 521. Where there are several pleas, single Repli- cations to each plea, and one Repli- cation to all, cannot be put in togeth- er ; Chillicothe Bank v. Sivayne, 8 Ohio Rep. 257. A Replication that presents a va- riety of points, or attempts to put in issue immaterial matters, or introdu- cing new matter concludes to the country, is bad on special demurrer. Thus, where a plea alledges usury in discounting a bill of exchange, a Replication not traversing the plea, nor confessing and avoiding it, but merely averring that the bill was drawn for a good consideration, and purchased for a good consideration, concluding to the country, is bad on special demurrer ; as multifarious, and for not concluding with a verifi- cation, lb. To a plea of the Statute of Limit- ations of Pennsylvania, a Replication "That the Statute has never been considered, adjudged, or construed by the the persons exercising the powers of government in Pennsyl- vania, to extend to debt, founded on a writing obligatory, either for rent or for any other consideration, but to debt upon parol demises only ; that Actions of debt, for rent, founded on writings obligatory, by the laws of Pennsylvania, have never been bar- red by the lapse of six years ; but such action may be commenced and prosecuted at any indefinite period of time, subject only to a presumption of payment after a lapse of twenty years, and subject to no other pre- sumption whatever " — is bad on spe- cial demurrer ; Ingraham v. Hart, 11 Ohio Rep. 255. In assault and battery, where there is a justification of molliter manus, the plaintiff can- not be admitted to prove Excess un- less he reply specially ; Parish v. Rigdon; 12 Ohio Rep. 191. When the issues are immaterial, the Court, it seems, will award a Repleader ; Jordon v. James, 5 O. Rep. 88 ; S. P. Haines v. Welling, 8 Ohio Rep. 253, Part 1st. See 14 Ohio Rep. 204 ; 15 do. 130. Af- ter trial on the merits, a Repleader will not be awarded, if the Court can safely pronounce judgment on the verdict ; Bates v. Cooper, 5 Ohio Rep. 115. If issue be taken on an immaterial plea, the Court need not award a Repleader, but may, on the trial, direct the jury to disregard the plea ; and so to give judgment at once for the plaintiff'; Sliplier v. Fisher, 11 Ohio Rep. 299; 14 do. 204. (b) When the plea concludes to the country, the replication consists either of the common or special sim.- iliter. The first is, " and the plain- tiff" doth the like ;" and the latter is, " and the plaintiff, as to the said plea of the defendant, by him first and secondly above pleaded, and whereof he hath put hmiselt upon the coun- try, doth the like ;" and the plaintiff" must join issue or demur, and can- not reply any new matter when a plea concludes to the country. But ASSUMPSIT. 119 rieas in Bar — Replications, &c. Notice of Sett-off.^ The plaintiff will also take Notice, that the defendant, on tlie trial of this cause, will give in evidence, and insist, that the plaintiff, at the commencement of this suit, was and still is indebted to the de- fendant in the sum of — dollars for the price and value of goods be- fore that time bargained and sold by the defendant to the plaintiff at the Court will, when the justice of the case requires, amend the record by the insertion of a similiter ; Chitt. PI. 599. The want of a similiter, it seems, is cured by verdict; 11 Serg. & Raivle, 32 ; 22 Pick. 102 ; But See 3 Brod. & Bing. 1. (a) In a suit on a bond to the plaintiff in trust for another, the de- fendant may set off a debt due from the person beneficially interested, in like manner as if the action had been brought by the cestui que trust ; Chitt. on Bills, 10 ; IT. R. 621 ; 4 do. 341 ; See 7 T. R. 003. A note is assigned after maturity ; set off against the assignor allowed; 11 Wend. 504 ; 19 do. 397. How al- lowed in case of holders of Bank Bills ; 9 Cowen, 414, note. Where work is not well done damages re- couped ; 22 Wend. 155. Old Com- mon Law and Eng. Statute consider- ed ; 8 Vin. Mg. 560. In a suit for fraud, or on a warranty, on sale of chattels, how damtiges may be set off, &c ; 2 Blackf. 124, 125. When and how in equity; 1 Paige, 218; 2 do. 581 ; 14 Ohio Rep. 445. Where the proportion of land tax due to the County has not been paid, the col- lector, in an action on his official bond, cannot set off County orders ; Byers, v. The State of Ohio, 2 Ohio Rep. 106. Where upon an equita- ble adjustment of partnership trans- actions, one of three partners is found to owe separate debts to each of the other two, and those two owe a joint debt to the other one, Equity will make a set off between them all; Sarchet v. Sarchet, 2 Ohio Rep. 320. Judgments, unless between the same parties and in the same rights, can- not be set off on motion ; Holmes v. Robinson, 4 Ohio Rep. 90. Where on the sale of goods, the vendee agrees to pay for them by taking up certain notes of the vendor, as they become due, but fails to do it ; the vendor may sue for the goods sold ; and the vendee cannot set up his lia- bility to take up the notes as an Off- set; Colvin V. Carter, 4 Ohio Rep. 354. A defendant may set off a- gainst an administrator a debt due him from the intestate ; but money paid after the death of the intestate, on an obhgation entered into in his life time, cannot be thus set off — He must look to the general assets ; Granger v. Granger, 6 Ohio Rep. 35. Where one dies with the Stat- ute of Limitations running in his fa- vor, his death does not stop it ; and the debt, when thus once barred, can- not be set off against the administra- tor ; lb. In covenant, unliquidated damages arising out of a breach of contract cannot be set off; Wheeler V. Knaggs, 8 Ohio Rep. 169. It is a general rule, it seems, in Trespass for mesne profits, that valuable and lasting improvements may be set off against rents ; but where a lease stip- ulates that the tenant may remove a- ny improvements he may make, such set off will not be allowed ; Wor- thington v. Young, 8 Ohio Rep. 401. 120 ASSUMPSIT. Pleas in Bar — Replications, &c. his request ; and also in the sum of — dollars, for the price and value of goods before that time sold and delivered by the defendant to the plaintiff at his request ; and also in the sum of — dollars for the price and value of w^ork before that time done, and materials for the same, provided by the defendant for the plaintiff at his request ; and also in the sum of — dollars for money before that time lent by the defendant to the plaintiff at his request ; and also in the sum of — dollars for money before that time received by the plaintiff for the use of the defendant ; and also in the sum of — dollars for money found to be due from the plaintiff to the defendant on an account before that time stated between them ; and that the defendant will set off on said trial, so much of the said several sums of money so due and ow- ing from the said plaintiff to the said defendant, against any demand of the said plaintiff to be proved on the said trial, as will be sufficient to satisfy and discharge such demand ; and will also then and there demand a judgment against the said plaintiff for the balance of said several sums of money due to the said defendant, according to the Statute in such case made and provided. No. 2. Affidavit of the truth of the General Issue. The above named C, D. makes oath, and says, that the foregoing plea of the General Issue is true in substance and in matter of fact. Sworn to, &,c. No. 3. Statute of Limitations — Actio noa accrevit infra sex annos.^ Common Pleas. In a civil action by the State, the de- from his freight and charges ; or if fendant may set off a debt due to him the damages exceed the freight and from the State ; State of Ohio v. charges, then to return a verdict with Tlie Franklin Bank of Columbus, nominal damages ; 11 Ohio Ftp. "SOS. 10 Ohio Rep. 91. In an action by An off-set, it seems, cannot be set up a surviving dormant partner, the de- by way of plea, but only on Notice ; fendant may set off a debt due from Fuller v. Pelton, IG Ohio Rep. 457. the firm ; Beach v. Hayward, 10 Ohio Rep. 455. In Replevin for (a) For the Form of a Plea, set- goods, against a common carrier, the ting up the Statute of Limitations of Court will instruct the jury to deduct another State, See Pleas in Debt. the amount of any damage occasion- A. and B. give a joint and several cd by tlie ncghgeuce of the carrier, note ; A. dies, and ten years after- ASSUMPSIT. 131 Pleas in Bar — Replications, &q. And the said C. D. comes and defends, &c.,'' and for plea to the declaration aforesaid, or, to the first count of the declaration afore- wards, B. pays interest on the note — A.'s executors are protected by the Statute, notwithstanding such pay- ment; 1 Eng. Com. Law Rep. 412. For General Rules in construing Statutes of Limitation, See 5 Pet. 477; 6 Pet. 91 ; 8 Pet. 372; 9 Pet. 405 ; 12 Pet. 33 ; 7 Monroe, 76, 77. For the Laws of various countries. See 6 Monroe, 494. What sort of a coming into the State there must be. See 9 Sergt. and Rawle, 389 ; 6 Am. Com. Law Dig-. 497. The Statute begins to run from the time of the act done, and not when dam- ages accrue; 12 Ens;. Com. Laio Rep. 107; 4 Pet. 182. When a new promise is relied on to take a case out of the Statute, it in strictness ought to be declared upon special- ly, but the practice is inveterate the other way ; 21 Eng. Com. Law Rep. 451. Chancery overreaches the Statute when fraud, &c., is charged to have been discovered within the period limited by the Act ; Beame's Eq. 168 ; 20 Johns. 47. Otherwise at law ; 17 Wend. 202 ; See 3 Br. Ch. Rep. 527. Statute runs, atlMiv, from time fraud was committed — in Equily, from time of discovery of it ; IJ. J. Marsh. 445; 3 Mon. 41. Coming into the State for temporary purposes — the Statute attaches ; 3 Cranch. 173 ; 3 Bibb, 446 ; See 3 Litt. 46. When the note is barred, but not paid, the mortgagee may bring ejectment ; 2 Sug. Vend. 218 ;(n) S. P. 11 Conn. 160 ; 16 O. Rep. 66; con/ra, 7 Wend. 99. It is clearly necessary to plead the Statute specially ; but the staleness of a de- mand may, under circumstances, be used as an argument against it with the jury, though the Statute be not pleaded ; Chilt. on Contracts, 579, 627, 628 ; 14 Eng. Com. Law Rep. 203; 1 Cowp. 109; 1 Johns. 556; (b) For note (b) 16 2 Cranch, 180 ; 2/. /. Marsh. ^^G ; 2 Ath. 144. But the presumption may be rebutted ; 19 Ves. 195 ; 2 Bibb. 387. It seems, a judgment, like a bond at Common Law, is presumed to be paid after a lapse of 20 years ; 7 Ohio Rep. 188, Part 2d ; 14 Sergt. (5' Raivle, 15; 2 Starkie's Ev. 597; But See 14 Wend. 260. For general Doctrine of Presump- tions, See 27 Eyig. Com. Law Rep. 42; 3 Br. Ch. Rep. 424; 16 Pick. 137; 4: Paige, 188; 2 Svg. Vend. 247, note. Cases collected, 1 Jac. fy Walk. 63 ; 2 Sug. Vend. 292 ; 9 Dana, 393; 2 Marsh. 70. As to presuming Grants, Releases, Acts of Parliament, &c. See 4 Br. Ch. Rep. 159 ; 11 PM. 53 ; 1 Ohio Rep. 330 ; 14 do. 502 ; 15 do. 529 ; 8 do. 512; 11 do. 527. Debt on simple contract was not barred by any Statute of Limitations in Ohio until the Act of 1824 ; Tupper''s Executors V. Tupper''s Executors, 3 Ohio Rep. 387 ; S. P. Hazlett v. Critchfield, 7 Ohio Rep. 153, Part 2d. An agree- ment to submit a question of boun- dary to arbitration, defeats the ope- ration of the Statute of Limitations ; HunVs Lessee v. Guilford, 4 Ohio Rep. 310. The Statute of Limita- tions begins to run from the time of the injury, and not from the time of the damage, or discovery of the in- jury ; Kerns v. Schoonjnaker, 4 Ohio Rep. 331 ; S. P. Fee's admr. V. Fee, 10 Ohio Rep. 469. The words " actions upon the case," in the Statute of Limitations of 1810, include the action of Assumpsit ; Williams v. Williams, 5 Ohio Rep. 444. If one of two joint obligors pays more than his share of the money, no trust is thereby created so as to avoid the Statute of Limitations; lb. Where one pays money for an- other, under a legal obligation, an ac- see 123d page. 122 ASSUMPSIT. Pleas in Bar — Replications, &c. said, says, that the said A. B. ought not to have his aforesaid action thereof against him, because he says,* that the cause of action in the said declaration, or, first count, 8fc., mentioned, did not at any time within six years next before the commencement of said action, ac- tion lies to recover it back, without a special demand ; but if a joint oblig- or make several payments, at dif- ferent times, an action avIU not lie for each installment without demand or notice ; and in such case the Statute of Limitations begins to run only I'rom the time of such demand or no- tice ; lb. Where one pays money for another, on a bond, the action to recover it back is not entitled to the same Limitation as an action on the bond itself; Jb. Where one dies with the Statute of Limitations run- ning in his favor, his death does not stop it, and a debt when thus once barred cannot be set off against his administrator ; Granger v. Granger, 6 Ohio Rep. 35. The declaration averred an indebtedness in 1818 — Plea non assumpsit infra sex annos — Replication, Demand in 1827 — on demurrer to the Replication — Held, That the action was barred in 1824, and not revived by the demand in 1827 ; Bigeloiv v. Bigelotv, 6 Ohio Rep. 96. The proviso in the re- pealing clause of the Act of 1831 is obscure, but the interpretation of it is this — All causes of action accru- ing under former Acts, not barred at that time, shall be limited by those Acts ; and all causes of action that have been barred by those Acts, shall continue barred ; lb. The doctrine that the Act of Limitations does not run against a trust belongs to a Court of Equity and cannot be regarded at Law; lb. The phrase, Beyond Seas, in the Act of Limitations, is equivalent to, without the limits of the State ; Richardson v, Richardson, 6 Ohio Rep. 125 ; S. P. West v. Hymer, 7 Ohio Rep. 235, Part 2d; Sook's admr. v. Friend's admr., 9 Ohio Rep. 78. Where a suit is brought by one who was once a Guardian, to recover a balance found due to him on settlement of his accounts with the Court, and the defendant pleads, non-assumpsit infra sex annos : It is a good Replication to say, That at the time of such settlement he was a legal Guardian, and so continued till within six years next before the com- mencement of the suit ; Davis v. Ford's administrators, 7 Ohio Rep. 104, Part 2d. Taking all the Acts of Limitation together, the conclu- sion is. That all actions and causes of actions are barred by the Statute in force at the time the cause of ac- tion accrued ; Hazlctt v. Critchfield, 7 Ohio Rep. 1-53, Part 2d ; S. P. 13 Ohio Rep. 195. But whether debt on simple contract, where the liabih- ty accrued under the Act of 1804, is barred by any subsequent Statute — Quaere — The Court being equally divided on the point; Putnam v. Rees, 12 Ohio Rep. 21. A plea'of setting up the Act oi Limitations of another State, must aver, that the parties resided in that State when the cause of action accrued ; Heading- ton V. Neff", 7 Ohio Rep. 229, Part 1st. Under the Statute of Ohiopcr- raitting Statutes of Limitations of other States to be set up in bar, if the Statute of any State has once beofan to run there, it contmues to run m Ohio ; State of Maryland v. Ship- ley, 7 Ohio Rep. 246, Part 1st. Whether a judgment, on the plea of a Statute of Limitations, is a judg- ment on the merits, and binding on the parties beyond the territorial op- eration of the Statute — Quaere; lb. The Act of Limitations runs ajrainst a town or city corporation, as well as against natural persons ; Lessee of Cincinnati v. The First Presbyteri- ASSUMPSIT. 133 Pleas in Bar — Replications, &c. crue to the said A. B., and this he is ready to verify ; wherefore he prays judgment, if the said A. B. his action aforesaid thereof against him ought to have or maintain. an Church, 8 Ohio Rep. 298. Un- der the Act of 1831, providing " that when any person shall have left the State, and remained out of the same ; or shall reside out of the State at the time any cause of action shall have accrued against him ; or shall have removed to any place unknown to the person in whose favor such cause of action may exist, during such time as is limited by this Act" — if one leaves the State after the cause of action accrues, the Statute contin- ues to run, notwithstanding his ab- sence from the State : — Whether the same rule holds where the party has concealed himself — Qttcere ; Coven- try V. Jltherton, 9 Ohio Rep. 34. An acknowledgment of the debt, and a promise to pay it, takes a case out of the Statute ; Sook^s adm. v. FriencVs adm., 9 Ohio Rep. 78. Proceed- ings cannot be had under the Statute regulating writs of duo Warranto to oust an officer, where the cause of ouster existed more than three years prior to the time of filing the infor- mation; 16 Ohio Rep. 358. Equi- ty will not set up lapse of time against a claim where an action of debt for its recovery would not be barred by the Statute of Limitations; Fahs V. Taylor, 10 Ohio Rep. 104. A fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the Statute of Limita- tions ; Fee^s admr. v. Fee, 10 Ohio Rep. 469. The Act of LuTiitation is a strict legal defence, and it must be plead in time, or its benefits to the party will be lost : — Thus, where a cause was tried in the Court of Com- mon Pleas on the general issue and notice of set-off, and a judgment ren. dered for the plaintiff, and the cause afterwards appealed to the Supreme Court, and there continued one term; It is too late now to apply for leave to plead the Statute, though it ap- pear by affidavit that the defence was meritorious, and that the plea was omitted in the Court below, by the oversight and mistake of the defen- dant's counsel; Sheets v. Baldtvin, 12 Ohio Rep. 120. Where non- residents are within the saving clause of the Act of Limitations of 1810, the Statute does not begin to run un- til their death, and after their death, their heirs may sue within the limit- ed period ; 13 Ohio Rep. 181, 430. Part payment, or acknowledgment by an administrator, it seems, will take a case out of the Statute; 13 do. 271 . The Statute must be plead or rehed upon in the answer ; 13 do. 430. Replication that the party left State and went to parts unknown is good ; 14 do. 204. A contract made in another State is controlled by the Act of Limitations of that State ; 14 do. 437 ; 16 do. 145. The indorse- ment of a promissory note is a con- tract in writing and not barred under 15 years ; 15 do. 130. The Statute does not run when the legal title is in the Government ; 16 do. 34. Though a debt be barred at Law, yet Equity will still enforce a deed of trust given to secure the debt; 16 do. 145. (b) If the general issue be first plead, the second and all subsequent pleas may commence thus: "And the said C. D. for a further plea to the declaration aforesaid, says, &c." Notwithstanding- the Statute authori- zes double pleading, in general, stiil there are certain pleas so inconsistent with each other, that Courts of Jus- 124 ASSUMPSIT. PJeas in Bar — Replications, &c. No. 4. Replication thereto — That the plaintiff was out of the State, and sued within six years after his return. And the said A. B. as to the plea of the said C. D. secondly pleaded in bar, says, that he ought not to be barred of his action aforesaid, because he says (*) that he, the said A. B. at the time when the cause of action in his said declaration mentioned accrued, was in foreign parts, out of the State of Ohio, to wit, at — &c. and there resided until he afterwards, to wit, on — returned to the State of Ohio, and that he the said A. B. within six years after his said return into the State of Ohio, to wit, on — commenced his action against the said C. D. in due manner and form aforesaid ; and this he is ready to verify: wherefore he prays judgment, and his damages and costs to be adjudged to him. No, 5. Rejoinder. And the said C. D. says that the said A. B. did not within six years after his said return into the State of Ohio, commence his action aforesaid, against him the said C. D. in manner and form as the said A. B. hath in his said replication alleged, and of this he puts himself upon the country. tice will not permit them, to be join- ed. The practice of pleading incon- sistent pleas is most abominable ; 21 Eng. Com. Law Rep. 425. 1 . Pleas which may be joined. 1. Non-assumpsit and the Statute of Limitation; Str. 678, 889. 2. Non-assumpsit and discharge by Bankruptcy ; Sir. \000. 3. Non-assumpsit, set-off, and Statute of Limitations ; Barnes. 280. 4. Non-assumpsit and judgment recovered ; Fortesc. 387. 5. Non-assumpsit and ne unques executor ; Fortesc. 336. 6. Non-assumpsit and plene ad- ministravit ; Bunb. 182. 7. Non-assumpsit by testator — no cause of action within six years — non-assumpsit by administrator, and plene adminisfravit ; Com. Big. PL E. 2 ; Ilardiv. 243. 8. Ne Jinques executor, and ple7ie administravit. 9. Plene administravit and set- off. 10. Payment and plene adminis- travit ; Hardw. 178. 2. Pleas which m.ay not he joined. 1. Non-assumpsit and tender; Str.. 499; 3 Wils. 145. 2. Non-assumpsit and alien ene- my; 2 Bos. ^' Pul. 72. 3. Non-assumpsit and Infancy; Barnes, 363. 4. Non-assumpsit and solvit ad diem. 5. Non-assumpsit to the whole and tender to a part; 2 T. R, 194. 6. Non-assumpsit to part and tender to the whole; Clift. 202; Story. PL by OL 132. ASSUMPSIT. 125 Fleas ia Bar — Replications, &c. Replication — That the Causes of Action accrued ivithin six years. [Proceed as in No. 4, Ante. 124, to the (*)] — says that the said several causes of action in the said declaration mentioned, and each of them, did accrue to the plaintiff within six years next before the commencement of this suit, in manner and form as the plaintiff hath above thereof complained against the defendant, and this the plaintiff prays may be inquired of by the country, &c. No. 6. Tender.^ And for a further plea as to fifty dollars, residue of the said one thousand dollars, in the said declaration mentioned, the said C. D. says, that the said A. B. ought not to recover his damages by reason of the non-payment of said fifty dollars, because he says, that he the said C. D. after the making of the said promise in the said declara- (a) The defendant to pay 21. 12s. 6d., tendered three one pound notes ; the plaintiff refused objecting that the debt was larger — Tender a good one : Quere : who must make change? 5 £ng. Com. Law Rep. 483 ; See \QEng. Com. Law Hep. 2So; How to be made, 20 Wend. 47. A ten- der to an Attorney, " or his Clerk" who is authorized to collect the mo- ney, is good ; 14 L^ng. Com. Lata Hep. 385. Tender and refusal tan- tamount to a delivery ; 15 Wend. 493; 1 Cranch, 321. Tender of property in absence of the creditor must be at the latest convenient time ; 1 Marsh, 322. Tender and accept- ance without objection after the day, is good; 4: Eng. Conds. Eq. Rep., 378. An off'er to pay does not stop interest ; 1 Ed. Ch. Rep. 632. In a suit before a justice of the peace, a Tender of the amount due, and costs, up to that time, is a bar to the recovery of any further costs ; Hay V. Ousterout, 3 Ohio Rep. 384. A Vendee need not tender the purchase money, before he sues for a specific performance ; but then he will not be entitled to costs ; Dustin v. Neiv- comer, 8 Ohio Rep. 49. An offer to pay, in bank notes, is equivalent to an offer to pay in specie, unless objected to ; Wheeler v. Knaggs, 8 Ohio Rep. 169. He who makes the tender, is not bound to count out the money ; It is enough if the money be there, and offered to the party ; It is for the payee to tell the money ; lb. Where the Vendee went to the Vendor with the purchase money in current bank notes ; and told him he had the money, and demanded a ful- filment of the contract, saying there was sufficient time, and he would obtain the specie, if he required it ; and the vendor replied. He would accept bank notes as soon as specie, but would take neither, nor would he fulfil the contract ; This is a suffi- cient Tender ; lb. Where a note payable in specific articles falls due on Sunday, a Tender on the Monday following, is good ; Barrett v. Allen, 10 Ohio Rep. 426. W^here a Sheriff collects money on execution and ten- 120 ASSUMPSIT. Pleas in Bar — Replications, &c. Hon mentioned, and before the commencement of this action, to wit, on — at — tendered the said sum of fifty dollars to the said A. B. who then and there refused to receive the same ; and the said C. D. further says, that he, from the time of making of the said promise, in said declaration mentioned, as to the said yi/if^/ ^^^^^^^^j hitherto always has been, and still is ready to pay to the said A. B. the said sum of fifty dollars, and now brings the same into Court here ready to pay to tiie said A. B. if he will accept the same ; and this he is ready to verify : wherefore he prays, &c. No. 7. Replication thereto. — No tender made. And the said A. B. as to the plea of the said C. D. secondly above pleaded, as to the said fifty dollars, residue of the said one thousand dollars, in the said declaration mentioned, says, that he by any thing alleged therein, ought not to be barred from his action aforesaid, to recover his full damages in that behalf, because he says, that the said C. D. did not offer to pay him the said sum of fifty dollars, in man- ner and form as the said C. D. hath above alleged, and this he prays may be inquired of by the country. No. 8. Replication thereto. — Subsequent request and refusal. [Precludi non, as in the last precedent] — because he says, that after the making said tender, in said plea mentioned, and before the commencement of this action, to wit, on — at — he the said A. B. requested the said C. D. to pay him the siud fifty dollars, which the said C. D. then and there refused : wherefore he prays judgment, and that his damages by reason of the non-payment of said Jlfty dol- lars may be adjudged to him. dors it to the party, who refuses to costs up to the time of the tender take it, and the Sheriff afterwards made ; Ihirt v. Bodge, 13 Ohio absconds, Tliis is no bar to an action Rep. 131. When the verdict is for for the money against the ShcrifT's the defendant on a plea of tender a securities on his official bond ; The judq-mcnt is rendered for the plaintiff Stafe of Ohio v. JJldcn, 12 Ohio for the amount due, and for the de- Rep. .51). A Tender under the Stat- fcndant for costs; Ftdler v, Pelf.on, ulc, pending the suit, must inchide If) Ohio Rep. 457. ASSUMPSIT. i$J7 Pleas in Bar — Replications, &.c. No. 9. Accord and Satisfaction.^ And the said C. D. comes and defends, &c. and says, that the said A. B. ought not to have his aforesaid action against him, because he says, that iic, after the making of the said several promises in said declaration mentioned, and before the commencement of this action, to wit, on — at — gave and delivered to the said A. B. two pieces of broad-cloth, in full satisfaction and discharge of the several prom- ises aforesaid, and of the damage sustained by the said A. B. by reason of the non-performance thereof, which the said A. B. then and there received and accepted in full discharge and satisfaction of the said several promises, and of the damages sustained by the said A. B. by reason of the non-performance thereof; and this he is ready to verify: wherefore he prays judgment, and that the said A. B. may be barred of his action aforesaid. No. 10. Replication thereto. — Did not accept . And the said A. B. says, that he by reason of any thing by the said C. D. in his plea alleged, ought not to be barred from having his aforesaid action against the said C. D. because he says, that he did (a) An Accord, without Satisfaction, a certain farm, with the grain in the is not good : But if the plaintiff in ground, and to pay $173 76 dama- an action of trespass against five, ac- ges, and $9 costs ; and assigned as cept the note of two, payable at a fu- a breach, the non-payment of the ture day, in Satisfaction as to them, money : and to this declaration the but not to operate as a discharge of defendant plead. That after the a- the other defendants ; This is a good ward, the defendant agreed to deliver Accord and Satisfaction ; and the to the plaintiff a horse and wagon, cause of action is gone as to all ; £1- and pay him, at a certain day, $48 lis V. Bitzer, 2 OhioRep. 89. And 76, with interest on the $173 76, in such case it makes no difference and also to cut and shock the grain whether the note be really paid or in the declaration mentioned, and not; the discharge is complete on repair all the fences on the farm; the execution and delivery of the and that all this was agreed on be- note — The actual payment of the tween the parties ; and then the de- money forming no part of the Accord; fendant averred the delivery and ac- Ib. See 5 J. J. Marsh, 5. But ceptance of the horse and Avagon, an Accord, on mutual promises to and an offer to cut and shock the perform, is not good, if there be no grain and repair the fences, but was performance, before action brought : prevented from so doing by the other Thus, where a declaration in debt party — This plea was held bad on de- on an arbitration bond averred, murrer, because there was no aver- That by the award, the defend- ment of the payment of the $48 76 cts; ant was to surrender to the plaintiff Frost v. Johnson, 8 Ohio Rep. 393. 128 ASSUMPSIT. Pleas in Bar — Replications, &c. not accept or receive the said two pieces of broad-cloth, in full satis- faction and discharge of the said several promises, or any or either of them, or of the damages sustained by him by reason of the non-per- formance thereof, in manner and form as the said C. D. hath alleged ; and this he prays may be inquired of by the country. No. 11. Infancy.^ And the said C. D. [who is under the age of twenty-one years, by E. F. his guardian, who is admitted by the Court here to defend for the said C. D.] comes and defends, &c. and says that the said A. B. ought not to have his action aforesaid against him, because he says, that at the several times of the making the said several promises in the said declaration mentioned, he the said C. D. was an infant, within the age of twenty one years, to wit, of the age of seventeen years, and no more ; and this he is ready to verify : wherefore he prays judgment if the said A. B. ought to have or maintain his action aforesaid against him. No. 12. Replication denying Infancy. [Proceed as in No. 4. Ante. 124, to the (*) — that the defendant at the time of the making of the said several promises (in debt, " con- tracts") in the said declaration mentioned, was of the full age of twenty-one years, and not within the age of twenty-one years as in the said plea alleged ; and of this he puts himself upon the country, &c. (a) Assumpsit — Plea, Infancy — Law Rep. 189. Rights of Infants Replication, Ratification after full in Fcntre sa mere, 2 Paige 39 ; 2 age— On trial, the ratification relied Br. Ch. Rep. 253. See 1 Tho's on was made after suit brought — The Coke 145 ; G Paige 158. An infant plaintiffwas nonsuited ; 9 ii^n^. Co?H. is of full age on the day preceding Law Rep. 25G, An infant plaintiff the 21st anniversary of his birth ; is not liable for costs, but only his Dana, 233, An Infant should sue prochcin amic ; and if he refuses to by prochein amie, and the fact of pay them on demand, an attachment minority should be distinctly averred : lies; Tidd, 71, 72. In some cases But if no such averment be made, the Court will not discharge an in- the Court, after verdict, will presume fant if taken for costs ; 13 East. 0, 7 ; the plaintiff to be of full age ; and Willes, 190. If an infant with his Infancy cannot be assigned for error own hand pays money without a in law, on such a record ; Hanly v. valuable consideration, he cannot re- Levin, 5 Ohio Rep. 227. cover it back again ; 4 Eng. Com. ASSUMPSIT. 129 Pleas in Bar — Replications, &c. Replication. — IS'ecessaries. And the said A. B. says that he, by reason of any thing in the plea of the said C. D. alleged, ought not to be barred from his action aforesaid, because he says, that the goods, wares and merchandize, labor and work, materials and necessary things in said declaration mentioned, were necessaries for the said C. D. and suitable to his degree and estate, and that the said money in the said declaration mentioned was paid by the said A. B. for things necessary for the said C, D. and suitable to his degree and estate and this, &c. [Con- clude as ill No. 4, Ante. 1 24.] Replication — That the action is partly for Necessaries, "" anll\. A Juror may never be withdrawn but by consent of parties ; 21 Vin. Mg. 337. On closing the testimony, if the Plain- tiff's counsel opens the cause to the Jury, and the defendant's counsel declines any reply, the plaintiff's counsel cannot address the Jury a se- cond time ; Goodenoiv v. Tappan, 1 Ohio Rep. 60. On the trial of an is- sue out of Chancery to test the va- lidity of a will, the defendant in Chancery holds the affirmative ; Green v. Green, 5 Ohio Rep. 278. In such case, the depositions in the Chancery case may be used, provided the witnesses are not within the ju- risdiction of the Court : But the an- swer of the defendant cannot be read by him ; lb. In trespass against several, it seems, the jury may retire, and pass upon one defendant, in order that, if acquitted, he may be used as a witness in the further progress of the case ; Taylor v. Alexander, 6 Ohio Rep. 144. If issue be taken on an immaterial pica, the Court, on the trial, may instruct the jury to dis- regard the plea, and so give judg- ment for the plaintiff, at once ; Thus, where, inaJoznYsuit against principal and surety, the surety plead that the creditor gave further time to the principal ; and the plaintiff took is- sue on the plea ; The Court on trial, instructed the jury, That such de- fence could not be made, at Law, and so gave the plaintiff judgment ; Sli- pJicr V. Fisher, 1 1 Ohio Rep. 299 ; S. P. Powell V. Jones, 12 Ohio Rep. 35. (b) These Rules are generally prepared by the Bar, and adopted by the Court — They A'^ary in differ- ent Circuits, and sometimes in differ- ent counties of the same Circuit : See Appendix No. 1. ASSUMPSIT. 151 Verdicts. crees of the Court, in all causes and matters whatsoever pending in Court, for the time being, and after each cause is finally determined, a Complete Record of it is made up, by copying into a Book for that purpose, the Original Writ, Declaration, &c. together with the orders of Court and final Judgment. The Orders, Judgments, Decrees, &c. should be entered upon the Journal, at length, and with the same technical precision as is required in the Complete Record ; 1 Ohio Rep. 268 : See, Complete Record. The parties being at issue. either to the country upon matter of fact, or the Court upon matter of law, the cause is brought on to trial as follows : The Clerk, at least twelve days before the commencement of each Term, enters in a Book, called the Trial or Issue Docket, all causes, petitions, &c. in which an issue is to be tried, or an inquiry of damages is to be made, or special orders to be taken, or a special verdict, or a case agreed, demurrer, or other matter of law, is to be argued, in the same order as they stand in the course of proceeding; setting as near as may be, an equal number of causes to each day of the time allowed by law for the holding of such Court, if in his opinion, so many days will be required, in trying the causes ready for trial ; and also issues subpa3nas for witnesses to attend on the days on which the causes stand for Trial. No cause can be removed from its place on the Docket ; but all causes, in which the intervention of a jury is neces- sary, must be tried in the order in which they stand, unless the parties otherwise agree, or be continued until the next Term ; Swan's Stat. 673, *§> 107. Where there are issues in law and in fact, in the same cause, the issues in Law must be first determined ; Swan's Stat. 671, '^ 97. Verdicts.'' Thirty days before every Term of the Court, a Venire facias issues for a Jury, to try such questions of fact as may be ready for trial at (a) When the verdict of a Jury is party against whom it is given ; Bicsh received by the Clerk, it is always v. Critchfield, 5 Ohio Rep. 109. on the terms, that the Court may Where the general issue, and also correct matters of form ; Hammer v. special pleas in bar are put in, the McConnell, 2 Ohio Rep. 31 ; S. P. Verdict must answer to each issue; Hay V. Ousterout,S Ohio Rep. 384; Hanly v. Levin, 5 Ohio Rep. 227; Hanly v. Levin, 5 Ohio Rep. 227. S. P. Powell v. Hurler, b Ohio Rep. If the jury, on an inquiry of dama- 259 ; Headly v. Rohy, 6 Ohio Rep. ges, after demurrer to a plea in bar 521 ; Hewsonv. Saffin,7 Ohio Rep. sustained, find in their verdict the 232, Part 2d. ; Clark v. Irvin,9 Ohio same facts as set out in the plea ; Rep. 131. It is no cause for setting such a verdict is of no avail : The aside the Verdict of a jury, that after judgment on the demurrer estops the it is agreed on, written down and 152 ASSUMPSIT. Verdicts. that Term. There is not, as in England, a Venire in every cause ; but only a single Venire, calling for one set of jurors, to attend upon the Court, from day to day, for the trial of all questions that may be submitted to them, during the Term ; Swan's Stat. 490, *§» 4 : See Select Writs, Post. — ^ By the Act of 1837, if the parties agree to waive a jury, in an action sounding in contract, it is made the duty of the Court, to try the issues in fact : and in all actions on written contracts, for sums of money certain, where the plaintiff' offers to submit the case to the Court, and the defendant insists upon a jury, he is required to pay all the expense of the jury, unless by plea or notice, he sustains a defence of payment, set-off, release, fraud, or failure or want of consideration; Swan's Stat. 671, § 158. sealed up, the jury separate; provi- ded the jury afterwards come into Court, and deliver in their Verdict thus sealed up ; Sufliff v. Gilbert, 8 Ohio Rep. 405. Nor is it error in the Court to send the jury back again to their room to correct such a Verdict ; lb. In trespass, a Verdict generally _/br the plaintiff \s the same thing as finding all the defendants guilty ; lb. A Verdict does not come within any of the Statutes allowing amendments, either before or after error brought ; Clark v. Irvin, 9 O- hio Rep. 131. Statutory damages, on a protested Bill, are to be found by the jury: They cannot be assessed by the Court, and then added to the Verdict ; Crawford v. Wolcolt, 1 1 Ohio Rep. 145. Under the 142d Section of the Practice Act, if a Declaration has one good count and several bad ones, and there is a gen- eral Verdict for the plaintifl, Error will not lie : The Court will intend that the damages were computed on the good count, and not on the bad ones, unless the contrary appears on the record ; Johnson v. Mullin, 12 Ohio Rep. 10: See 5 Ohio Rep. 315,473; 2 Ohio Rep. 204. (b) When and How a jury may be discharged where they cannot agree, and when to be carted after the Judge ; 14 Eng. Com. Law Rep. 378. May be discharged in Capital Cases, &c.; 1 Rlackf. 258. When they may separate by order of the Court, or from necessity, as the fall ing of the house, &c., all the old cases collected ; 18 Eng. Coin. Law Rep. 15, note (a) : See 15 Ohio Rep. 72. What kind of opin- ions disquahfy Jurors ; 14 IFend. 131. How they may find Law, as well as Fact ; 4 BlackJ. 151 ; Judge Baldivin's Opinion, See 11 Ohio Rep. 424. Whether the word Jury in the Constitution of Ohio means twelve, or any other num- ber of persons — Quere, 5 Ohio Rep. 132. The Supreme Court sitting in one county, may direct a struck jury, for the trial of a case in another county ; Ohio Rep. 448. The tes- timony of Jurors will not be received to impeach their own Verdict ; 10 Ohio Rep. 459. ASSUMPSIT. 153 Verdicts for Plaintiff. Verdicts for PLAiNTirF. No. 1 . Verdict for Plaintiff', on Non-AssumpsitJ^ A— B— , ^ V. > In Assumpsit. C— D— , 3 This day came the parties by their attorneys, and thereupon came a jury, to wit : E. F. &c., who being empannelled and sworn the truth to speak, upon the issues joined between the parties, upon their oaths do say,* that the said C. D. did assume and promise in manner and form as the said A. B. hath complained against him ; and they assess the damages'* of the said A. B. by reason thereof to — dollars.*" Therefore it is coNsiDEnED, &.c. [See Judgments in Assumpsit, Post.] (a) For general Rules regulating Verdicts, See Trial, Ante. 150, Ver- dicts, Ante. 151. (b) In England, Damages may be assessed, in cases of bills of exchange, promissory notes, &c., by a Master or Prothonotery ; VII Petersd. Mg:50S. In like cases, here, after default, or when no jury is required, the Clerk of the Court, or the At- torney of the party, calculates the amount of damages, which is inspec- ted by the Court, and judgment en- tered accordingly. Where several damages are assessed against sever- al defendants, the plaintiff may elect de melioribus damnis, and have judgment therefor against cdl the de- fendants ; 1 Bibb, 441 ; 2 Bac. Mg. Tit. Damages, 1 Hen. & Munf. 488; See 3 Monroe, 137 ; 1 Black/. 142; How damages are assessed on nil debet on judgment ; 2 Dallas 302. It is error to assess damages accru- ing after suit brought ; 9 Pet. 116. In a joint action against two, it is er- ror to render judgment against one while the suit is pending against the other; 1 Marsh. 401. There can be no judgment by default against infants ; 3 Dana, 35. When one of two defendants neglects to appear, default must be taken against him, before a judgment can be taken a- gainst the other ; 5 Blackf. 79. How damages are to be assessed as be- tween tenant, reversioner, &c. ; 3 ■Eng. Com. Law Rep. 181, note. How every tenant shall answer for his time; 7 Vin. Mg. 262. Dam- ages may be recouped wlaexe work is not well done ; 22 Wend. 155. Whether penalty, or liquidated dam- ages ; 22 Wend. 201 ; 1 Br. Ch. Rep. 367. General Doctrine of Damages; 21 Wend. 342. Eng- Hsh cases collected ; 4 Day, 35. Damages vendee against vendor on failure to make title ; 5 Conn. 222. 2 Sug. Vend. 34, n ; 1 Blackf. 266. Where the vendee moves ofT build- ings, &c., and the title fails ; 1 Da- na, 591. When allowed beyond penalty in a bond ; 6 Paige, 90. In a case of Arithmetical Progression 20 (c) For note (c) see 156th page. 154 ASSUMPSIT. VerdictB for Plaintiff. No. 2. Verdict for Plaintiff, Against Administrator, on Non- Assumpsit. [Proceed as in No. 1, Ante. 153, to the (*) — that the said E. F. in his Hfe time did assume and promise in manner and form as the said A. B. hath in that behalt alledged, and they assess, &c. [Conclude as in No. ], Ante. 153.] the Court sustained the action and said " the jury will consider of the folly of the defendant and give but reasonable damages ;" 4 Tin. Mg. 534. After a recovery of damages in assault and battery, no action lies for consequential damages, as that he Avas afterwards forced to be trepanned and had a bone taken out of his skull; 5 Vhi. Mg. 404. Contribu- tion lies not among tresspassers ; 1 Blackf. 120. But it does among owners of a stage coach that upset and did injury ; lb. ; in Case, See 11 Ohio Rep. 197. How assessed in actions on warranty, or for fraud, in sale of chattels ; 2 Blackf. 124. In trespass damages are not to be limit- ed to the value of the property des- troyed; as a tavern sign, &c. ; 3 Day, 447 ; 5 Day, 140. When a party mingles his own with other's property ; 15 Ves. 439. Equity rarely sustains a Rill for damages ; 4 Johns. Ch. 559. That a trespass was not wilful and malicious, is good in mitigation of damages ; 14 Wend. 239. The jury can assess no dam- ages for my dogs breaking my neigh- bors close ; 20 Fin. Mg. 466. Nor where a contract to build a house, &c., isall complied withi?;/ a little; 6 Monroe, 613 ; See 5 Ohio Rep. 320; 12f/o. 387. How assessed on dissolv- ing injunction by a stranger to stay execution levied on goods ; 13 Ohio Rep. 135. On appeal bond from a decree ; 13 Ohio Rep. 427. On ap- propriating private property for pub- he uses ; 14 Ohio Rep. 147, 541. Against a Sheriff for neglecting to sell property; 14 O. Rep. 538. How assessed for the breach of Covenants in conveyance of Real Estate, See 10 Ohio Rep., 317, note. In a suit for the non-dehvery of Rank Notes, or other specific articles, the value at the time of delivery, is the proper rule of Damages. Hitch- cock, J. Morris v. Edwards, 1 Ohio Rep. 189. An indorsee is en- titled to recover against the indorser the consideration paid on the trans- fer, and no more, although it be less than the amount of the note or bill. BrRNET, J. Morris v. Edwards, 1 Ohio Rep. 189. Where the value of merchandise is agreed on by the parties, it cannot afterwards be call- ed in question, no fraud being al- ledged ; Courcier v. Graham, 1 Ohio Rep. 330. In a suit against the Cashier of a Bank, for negligence, in not making demand on a Note left with him for collection, nominal Dam- ages only can be recovered unless the maker is proved to be insolvent ; Hough V. Young, 1 Ohio Rep. 504. Under the plea of non est factum, in debt on bond, it is error to take judg- ment for Damages only ; judgment ought to be for the debt, with leave to take out execution for the Dama- ges ; Smith v. Commissioners of Licking County, 2 Ohio Rep. 312, Where one is bound to another, " in the penalty of 1000 dollars for the performance of a marriage contract Avhich H. R. engages to perform with M. A." the 1000 dollars is to be ta- ASSUMPSIT. 155 Verdicts for Plaintiff. No. 3. Verdict for Plaintiff, when all of several Issues are found for him. [Proceed as in No. 1, Ante. 153, to the (*) — that as to the first issue joined between the parties, the said C. D. did assume and prom- ise in manner and form as the said A. B. hath complained against him ; and as to the second issue joined between the parties, the jury aforesaid say, that at the time of the making of the said several promises in the declaration mentioned, the said C. D. was not within the age of twenty-one years in manner and form as he hath alledged ; ken as a penalty, and not as liquida- ted damages ; Mram v. Kounts, 4 Ohio Rep. 214. Where an action on a bond against four defendants, one of them dies, and the suit pro- ceeds to judgment against the survi- vors ; in a sci. fa. under the act of 1824, to make the representative of the deceased, a party to the judg- ment, under the plea of non est fac- tum. Damages are not to be assessed anew : The Damages are to be con- sidered as liquidated in the original action ; Brazee .v. Blake, 5 Ohio Rep. 340. In actions of tort, the ju- ry may add interest to the actual val- ue of the Damages ; Hogg v. The Zanesville Canal Company, 5 Ohio Rep. 410. In an action against the Sheriff, for an escape, he may show in mitigation of Damages, that the original debtor had no property ; Richardson v. Spencer, 6 Ohio Rep. 13. In trespass for false imprison- ment, where the defendant justifies under process of Law, the plaintiff cannot show mahce in the original prosecution in order to enhance the Damage ; Taylor v. Alexander, 6 Ohio Rep. 144. On the dissolution of an injunction and dismissal of the Bill, Equity does not assess the de- fendant's Damages, — That is done by suit, at Law, on the injunction bond ; Ke72t V. Bierce, 6 Ohio Rep. 336. Where goods are injured, through the. default of the shipper, the rule of Damages is the value of the goods at the place of delivery ; McGregor V. Kilgore, 6 Ohio Rep. 358. Where a Vendor has parted with the title, so that he cannot convey, the rule of Damages is, the value of the land at the time the contract should have been performed : and such Damages are recoverable in Equity, on a Bill for specific performance ; Dustin v. Newcomer, 8 Ohio Rep. 49. It is a general rule, it seems, in trespass for mesne profits, to allow the value of the permanent improvements as a set off against rents ; but where a lease stipulates that the tenant may remove any improvements he may make, such set off will not be allow- ed ; Worthington v. loung, 8 Ohio Rep. 401. By the act in force in 1840, no Damages are allowed on a petition for dower ; Bank U. States v. Dunseth, 10 Ohio Rep. 18. A Avatch is a part of a traveler's bag- gage, and his trunk a proper place to carry it in, and if lost from a stage coach, its value may be recovered against the Stage proprietors; Jones V. Voorhees, 10 Ohio Rep. 145. If a factor sells goods contrary to the in- struction of the owner, he is liable as for goods sold, and the rule of Damages is the real value of the goods at the time of the sale ; Wood- ward v. Suydam, 11 Ohio Rep. 360. In an action for the penalty, under the Statute, for obstructing a high- 156 ASSUMPSIT. Verdicts for Plaintiff. and as to the third issue joined between the parties, the jury afore- said say, that the said A. B. was not indebted to the said C. D. in manner and form as the said C. D. hath alledged. [Proceed, in this manner, to state the Verdict of the Jury upon each Issue separate- ly, in the negative or affirmative of the pleading which concludes to the country, according as it is pleaded by the Plaintiff' or Defend- ant, and Conclude as in No. 1, Ante. 153.] No. 4. Verdict for Plaintiff, upon a plea of Tender as to part, and Non- Assumpsit as to residue. [Proceed as in No. 1, Ante. 153, to the (*) — that the said C. D. did assume and promise to an amount beyond the sum of fifty dol- way, the defendant may show, That the road, as fenced up by him, was not then in use, but all the travel was upon a shorter and more convenient road ; Jngersoll v. Herider, 12 Ohio Rep. 527. A Bill drawn on a per- son in Ohio, payable in New York, and protested for non-payment, does not entitle the holder to 6 per cent, damages under the Statute ; Canton Bank v. Brainerd, 8 Ohio Rep. 292. Whether, if a Bill were drawn upon a citizen of Ohio, temporarily resi- ding in New York, and accepted by him in New York, and afterwards protested for non-payment, the hold- er would be entitled to the 6 per cent, damages — Quoere ; lb. Where a Bill is drawn in New York upon a person residing in that State, and is subsequently indorsed in Ohio, and suit is brought by the holder against the indorser, the plaintiff is entitled to 6 per cent, damages : and in such case a protest is necessary, and is competent to prove a demand ; Case v.Heff'ner, 10 Ohio Rep. 180. Where such Bill is not protested, the princi- pal and interest without the Statute damages is recoverable on proof, ali- unde, of demand and notice ; lb. Statutory damages on a protested Bill are to be found by the Jury : They cannot be assessed by the Court and then added to the verdict ; Crawford V. Wolcott, 11 Ohio Rep. 145.— Where a Bill of Exchange, intended to be addressed to the defendant in Philadelphia is, by mistake, address- ed to him in Ohio, and six per cent, damages, on its being protested, have been paid, they cannot be recovered back ; The Commercial Bank v. Reed, 11 Ohio Rep. 498. A foreign bank is entitled to statutory damages, and they may be recovered on the common count, for money lent and advanced, under the Act allo\ving banks to bring joint actions against drawers or indorsers, and to declare in that form ; Lewis v. The Bank of Kentucky, 12 Ohio Rep. 132. But the same proof has to be made as in other cases ; lb. See Swan's Stat. 589; Also Ohio Stat. Vol. 44, p. 69 ; regulating Damage or Bills of Exchange, (c) If there be a motion for a new trial, or in arrest of Judgment, it is entered thus ; " and thereupon the said defendant moves yb?' a new trial, or, in arrest of judgment, for rea- sons onfde,^'' and the judgment on the verdict is postponed until the motion is disposed of. A party can- not move for a new trial after a mo- tion in arrest of judgment ; Swan's Stat. 671, § 99. See Judgments in Assumpsit, Post. ASSUMPSIT. 157 Verdicts for Plaintiff. lars by the said C. D. in that behalf alledged, to wit : to the amount of — dollars parcel of the several sums of money in said declaration mentioned, in manner and form as the said A. B. hath complained against him, and they assess the damages of the said A. B. by reason of the premises to — dollars, over and above the said sum of fifty dollars above mentioned ; Therefore, &c. [See Judgments in As- sumpsit, Post.] No. 5. TVhen one Issue is found for the Plaintiff', and another for Defendant. [Proceed as in No. 1, Ante. 153, to the (*) — that as to the first issue joined between the parties, the said C. D. did assume and prom- ise in manner and form as the said A. B. hath in the fii'st and secon d counts of his declaration alledged, and they assess the damages of the said A. B. by reason of not performing the promises in said first and second counts mentioned to — dollars. And as to the last issue joined between the parties, the jury aforesaid say, that the said C. D. did not within six years next before the commencement of this suit assume and promise, in manner and form as the said A. B. hath in the third and fourth counts of his declaration complained against him, [See Judgments in Assumpsit, No. 28, Post.] No. 6. Verdict for Plaintiff on Default.^ A— B— , ^ v. >In Assumpsit. C— D— , ) This day came the said A. B. by his attorney and the said C. D. though solemnly called, came not but made default ; whereupon it is considered that the said A. B. ought to recover his damages by rea- son of the premises, and the said A. B. or C. D. thereupon demand- ing a jury to assess the damages aforesaid,* a jury being called, come, to wit : E. F. &c. who being empannelled and sworn well and truly to assess the damages aforesaid, do assess the same to — dollars ; Therefore, &c. [See Judgments in Assumpsit, Post.] (a) On default, if neither party re- Damages; Swan'' s Stat. 671, §98. quire a jury, the Court assess the See Judgments in Assumpsit, Post. 138 ASSUMPSIT. Verdicts for Plaintiff. No. 7. The like, upon a Judgment by Default at one Term, and Damages assessed at a subsequent Term. [At the first Term, enter the Judgment as in the last Precedent to the (*) and then say, " It is ordered that this cause be continued until next term for the assessment of said damages." At the Term when the Damages are assessed, say, " This day came again the parties by their attorneys, and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn well and truly to assess the Damages sustained by the said A. B. by reason of the non-perform- ance of the promises of the said C. D. in the said declaration men- tioned, do assess the same to — dollars ; Therefore, &c. [See Judgments in Assumpsit, Post.] No. 8. Verdict for the Plaintiff, against Two defendants, ivhen one pleads N on- As sump sit, and the other is defaulted:^ A— B— , ^ V. > In Assumpsit. C— D— and E— F— , ) This day came the said A. B. by his attorney, and also the said C. D. by his attorney, and the said E. F., though solemnly called, came not but made default, whereupon it is considered that the said A. B. ought to recover his damages against the said E. F. by reason of the premises, and thereupon came a jury, to wit, G. H., &c., who being empannelled and sworn, the truth to speak, upon the issue joined between the said A. B. and the said C. D. and also well and truly to assess the damages sustained by the said A. B. by reason of the non-performance of the promises of the said C. D. and E, F. in the declaration mentioned, upon their oaths do say, that the said C. D. did assume and promise in manner and form as the said A. B. hath complained against him ; and they assess the damages of the said A. B. by reason of the not performing of the promises in the declaration mentioned, as well against the said C. D. as against the said E. F. to — dollars ; Therefore, &c. [See Judgments in As- sumpsit, Post. (a) In an action on a joiyit con- tained a verdict, judgment must be tract against two, where one has suf- entered in favor of both ; 3 Day, 303; fared a default, and the other has ob- Bac. Mg. Tit. Verdict. ASSUMPSIT. 159 Verdicts for Defendant. Verdicts for Defendant. No. 9. Assessment of Damages on Demurrer overruled, Nul tiel record, ^c. Enter the proper judgment, See Judgments in Assumpsit, Post., and then say, " and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn well and truly to assess the damages sustained by the said A. B. by reason of the non-performance of the promises in the declaration mentioned do assess the same to — dol- lars ; Therefore, It is considered, &c." [See Judgments in As- sumpsit, Post.] No. 10. Verdict for Defendant on Non-Suit. In Assumpsit. This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, the said A. B. thereupon, fails to further prosecute his suit against the said C. D. and thereupon the jury were discharged from the further considera- tion of the premises ; Therefore, It is considered, that the defen- dant go hence thereof without day and recover of the said A. B. his costs herein taxed to — . No. 1 1 . Verdict for Defendant on Non- Assumpsit. [Proceed as in No. 1, Ante. 153, to the (*) — that the said C. D. did not assume and promise in manner and form as the said A. B. hath complained against him; Therefore, &c. [Conclude as in last Form. The like, in another Form; Tidd's Forms, 157. — , who to speak the truth of the matters within contained, were chosen, tried and sworn ; and after evidence being given to them thereupon, they went from the bar of this Court to consider of their verdict to be given of and upon the premises ; and after the said jury 160 ASSUMPSIT. Verdicts for Defendant. had considered thereof, and agreed among themselves, they returned to the said bar, to give their verdict in this behalf; upon which the said A. B. being solemnly called, comes not, nor does he further pros- ecute his suit against the said C. D.; Therefore, &c. No. 12. Verdict for one Defendent, on Non- Assumpsit, where another has let Judgment go by Default. This day came the said A. B. by his attorney, and also the said C. D. by his attorney, and the said E. F., though solemnly called, came not but made default, whereupon it is considered, that the said A. B. ought to recover his damages against the said E. F. by reason of the premises ; and thereupon came a jury, to wit, G. H., &c., who being empannelled and sworn the truth to speak upon the issue joined bcr tween the said A. B. and the said C. D. and also well and truly to assess the damages sustained by the said A. B. by the non-perform- ance of the promises of the said C. D. and E. F. in the declaration mentioned, upon their oaths do say, that the said C. D. did not as- sume or promise in manner and form as the said A. B. hath declared against him ; and thereupon the said jury are discharged from in- quiring against the said E. F. what damages the said A. B. hath sus- tained in the premises ; Therefore, &;.c. [See Judgments in As- sumpsit, Post.] No. 13. Verdict for Defendant, Administrator, on Non- Assump- sit by Intestate. Proceed as in No. 1, Ante. 153, to the (*) — that the said E. F. in his life time did not assume or promise in manner and form as the said A. B. hath in that behalf alleged ; Therefore, &c. [See Judg ments in Assumpsit, Post.] No. 14. For Defendant, on several Issues. [Proceed as in No. 1, Ante. 153, to the (*) — that as to ihe first issue joined between the parties, the said C. D. at the time of the making of the several promises, in iUc first and second counts of the said declaration mentioned, was an infant within the age of twenty- one years, in manner and form as the said C. D. hath in that behalf alledged : And as to the second issue joined between the parties, the jury aforesaid say, that the goods, wares and merchandize in the third count of the declaration mentioned, were not necessary or suitable to the estate and degree of the said C. D. in manner and form as the ASSUMPSIT. 161 Verdicts for Defendant. said A. B. hath in that behalf alleged. And as to the last issue joined between the parties, the jury aforesaid, say, that the said C. D. did not after he attained the age of twenty-one years, assent, ratify or confirm the several promises and undertakings in the fourth and Jfifth counts of the declaration mentioned, or any of them, in manner and form as the said A. B. hath in that behalf alleged : Therefore, &c. [See Judgments in Assumpsit, Post.] No. 15. When one Issue is found for the Plaintiff' and another for Defendant. [Proceed as in No. 1, Ante. 153, to the (*) — that as to the first issue joined between the parties, the said C. D. did assume and promise in manner and form as the said A. B. in the first and second counts of his declaration hath alleged, and they assess the damages of the said A. B. by reason of the not performing the promises in the said first and second counts mentioned, to, — dollars : And as to the last issue joined between the parties, the jury aforesaid, say, that the said C. D. did not within six years before the commencement of this suit assume or promise, in manner, and form as the said A. B. hath in the third and fourth counts of the declaration complained against him : Therefore, &c. [See Judgments in Assumpsit, Post.] No. 16. Verdict for Defendant, on Notice of Set-off, balance found in favor of Defendant. [Proceed as in No. 1, Ante. 153, to the (*) — that the said C. D. did assume and promise in manner and form as the said A. B. hath complained against him and do assess the damages of the said A. B. by reason thereof to 300 dollars ; and the jury do further say, that the said A. B. is indebted to the said C. D. in the sum of 800 dollars parcel of the said several sums of money demanded by the said C. D. in his notice of set-off; and thereupon the jury do find that a balance of 500 dollars is due from the said A. B. to the said C. D. after allowing and crediting to the said A. B. the said sum of 300 dollars, his damages in form aforesaid assessed ; Therefore, &c. See Judgments in Assumpsit, Post.] No. 17. Where a Juror is withdrawn. [Commence as in No. 1, Ante. 153, — whereupon for certain causes, moving as well the Judges of the said Court as the said plaintiff and defendant, E. F., one of the jurors of the said jury is 21 162 ASSUMPSIT. Special Verdicts. withdrawn from the panel thereof; and the residue of the jurors of that jury are altogether discharged from giving any verdict of and upon the premises : Therefore, &-c. Special Verdicts. No. 1 8 Special Verdict and Special Case.^ [Commence as in No. 1, Ante. 153, — upon their oaths do say, That, &.C. [stating the facts proved at the trial, with certainty and precision] — But whether or not upon the whole matter aforesaid, by the jurors aforesaid, in form aforesaid found, the [stating the sub- stance of the issue joined, as thus, " the said J. S. be guilty of the trespass within specified"] the jurors aforesaid are altogether igno- rant ; and therefore they pray the advice of the Court ; and if upon the whole matter aforesaid, it shall seem to the Court [stating the affirmative of the issue, as thus," that the said J. S. is guilty of the trespass aforesaid"] then the jurors aforesaid, upon their oath afore- said, say [again stating the affirmative of the issue,] " that the said J. S. is guilty thereof, in manner and form as the said I. N. hath above complained against him"] and in that case they assess the damages of the said I. N. by reason thereof to — dollars : But if upon the whole matter aforesaid, it shall seem to the Court [sta- ting the negative of the issue as thus, " that tiie said J. S. is not guilty of the trespass aforesaid"] then the jurors aforesaid, upon their oaths aforesaid, say [stating again the negative of the issue, " that the said J. S. is not guilty thereof, in manner and form as the said I. N. hath above complained against him." [See Judgments in Assumpsit. Post.] (a) The Verdict is to be entered on — and thereupon, on motion of the the minutes of the Court, and then plaintiff, it is ordered that a day be either party may move the Court to given to the parties, until — to hear assign a day for argument ; Swan''s the judgment of the Court in the Slat. 671, § 100. The entry on the premises, for that the Court here are Journal may be as follows : not yet advised thereof. A— B— , Assumpsit. i— B— ,•) V. Un ^- D-, J ASSUMPSIT. 163 Judgments. Judgments.* Judgments are either Interlocutory or Final. Interlocutory Judg- ments are, in ordinary acceptation, those incomplete decisions whereby the right of the plaintitf is established, but the quantum of damages (a) In temp. Hen. 11, the Judges were compelled to support their judg- ments by Duel : The Judge who de- livered the opinion was to fight ; Reeves C. L. 153, 154. Lapse of 20 years is no presumption of pay- ment of Judgment ; 14 Wend. 188 ; Contra, W Sergt. 4* Rawle, 15: See 2 Starkie Ev. 597. Unless the Sheriff' has an execution in full force in his hands, payment to him is no discharge \ ^ J. J. Marsh. 604. How a foreign judgment may be enforced; 'H'Z Eng. Com. Law Rep. 220 ; 11 Wend. 647 ; 8 Paige, 440 ; 5 Paige, 305 ; Cases Collected, 2 Blachf. 111. Judgments of a Sis- ter State, how regarded ; 4 Conn. 380; Q Mass. 440; 10 Pet. 449; 3 Paige, 207 ; 2 Dallas, 302 ; 13 Pe^. 312; h Dana, 512. A Court of Probate in another State cannot confer power on an administrator to sell lands lying in Ohio ; Nowler v. Coit, 1 Ohio Rep. 519. Judgments obtained in other States, on service of process, or other appearance, are to be regarded as conclusive evidence of debt : Aliter, where the defend- ant has had no opportunity to defend himself; Spencer v. Brockway, 1 Ohio Rep. 259 ; S. P. Goodrich v. Jenkins, Ohio Rep. 43 ; Evans v. Instine, 7 Ohio Rep. 273, Part 1st : See 13 Ohio Rep. 209. A Justice's Court in Pennsylvania is not a Court of Record, within the meaning of the Constitution and Laws of the United States : Other proof than his own certificate is necessary to authenti- cate his Judgment : It seems, that on such Judgment, either debt or «s- siimpsit will lie, and that nil debit or nid tiel record may be plead ; Silver Lake Bank v. Harding, 5 Ohio Rep. 545. In debt on Judgment from an- other State, a plea that the defendant M'as not served with process in the original suit, and had no notice of it, is bad on demurrer — He should have set out the record declared on, upon Oyer; Evans v. Listine, 6 Ohio Rep. 117. Where the record of a foreign Judgment shows that the property of a stranger was taken by attachment, and a Judgment rendered thereupon, without any appearance on the part of the defendant, such Judgment is of no validity here : Evans v. Instine, 7 Ohio Rep. 273, Part 1st. A divorce granted in the State of Indiana, is a good bar to an application for divorce and alimony in Ohio ; Cooper v. Cooper, 8 Ohio Rep. 238, Part 2d. A Judgment from another State cannot be im- peached at Law for fraud : Equity alone, it seems, can give relief; An- derson V. Undersoil, 8 Ohio Rep. 108. Whether a Judgment on a plea of the Statute of Limitations, is a Judgment on the merits, and bind- ing on the parties beyond the terri- torial operation of the Statute— Quaere, Mattoon v. Clapp, 8 Ohio Rep. 248. A Decree of Divorce in Kentucky does not bar the right of dower in lands lying in the State of Ohio ; Mansfield v. Mclntyre, 10 Ohio Rep. 27. Under the plea of mil tiel record, in an action of debt on a Judgment from a Sister State against two defendants, both of whom appear by the record to have been served 164 ASSUMPSIT. Judgments. sustained by him is not ascertained, for this is a matter, which in general cannot be done, without the intervention of a jury. Final Judgments are such as at once finish the proceedings, by declaring that the plaintiff either has, or has not, entitled himself to recover, and by ascertaining to what amount he shall obtain redress ; XI. with process, evidence is not admis- sible to show that one of the defend- ants was not in fact served ; Bennett V. Morley, tO Ohio Rep. 100. How suit may be brought upon a judg- ment ; 10 Pet. 298. Decree in Vir- ginia carried into effect in Kentucky; 9 Pet. 98 : See 2 Sivanston, 342 ; 6 Mon. 528. Statute of a State can- not control a judgment of the Dis- trict Court of the United States ; 5 Crunch. 115. Judgments of Courts de facto in other Countries good ; 2 Ves. Sen. 557. A judgment with- out any notice to the defendant is void ; 22 Eng. Com. Law Rep. 220 ; 3 mis. 303 ; 2 Eng. Com. Law Pep. 498; 9 East. 191; 1 Camp. 63 ; 4 Conn. 380 : See 20 Ifmd. 260; 13 Ohio Pep. 505,548; 12 do. 253, .543. Judgments cannot be impeached collaterally ; 10 Pet. 449 ; 8 Paige 373; 2 Br. Ch. Pep. 200; 9 Dana 536. A new judgment in debt on an old one does not merge the first judgment ; and proceedings may be had on both ; 7 Paige, 86. A judgment in favor of /. F''s heirs, is good ; 1 Monroe, 252. When the record shows a judgment, generally, of a Term, the particular day of the term may be shown by proof ; 2 Day 252. In a Bill by a purchaser un- der execution to quiet the title, the original Judgment under which the sale was made cannot be inquired into ; It is conclusive evidence of the debt ; Starr v. Starr, 1 Ohio Rep. 321. The Judgment of a Court of competent jurisdiction, though irreg- ular and erroneous, cannot be im- peached in a collateral suit : Thus, a Judgment confessed in person, or by power of attorney, in open court, without any process or pleadings, cannot be called in question in eject- ment by the Judgment debtor against the purchaser on execution ; Mat- thew^ s Lessee v. Thompson, 3 Ohio Rep. 272. But a Judgment to be valid, it seems, must be entered in term time ; lb. So, where a Judg- ment was rendered on motion of the plaintiff^ apparently without service of process, or any notice to the de- fendant ; such a Judgment is not a mere nullity ; nor can its validity be questioned on a scire facias to revive it ; Weyer v. Zone, 3 Ohio Rep. 305 : Explained ; Adams^ L^essee V. Jeffries, 12 Ohio Rep. 2.53. If an attorney appears for a party not served with process, and a judg- ment passes against him ; it is con- clusive as between the plaintiff' and the defendants ; But where process is issued against several, and is serv- ed on part only, and returned not served as to the others ; and the at- torney employed by those served with process enters an appearance for all; «and Judgment is taken against all, without the knowledge of the defen- dants not served with process ; in a Bill for contribution by those served, the others are not concluded by the Judgment ; Cox v. JIill,S Ohio Rep. 411. But where an attorney ap- pears for a party without authority, the party is not concluded by his acts ; and a Judgment thus obtained, may be set aside on motion at a sub- sequent term — Equity will not re- lieve in such a case, because the rem- edy at Law is adequate ; Critchfield V. Porter, 3 Ohio Rep. 518; S. P. McGee\. Bank of Mt. Pleasant,! Ohio Rep. 175, Part 2d. Where on ASSUMPSIT. 161 Judgments. Petersd. Abg. 642. It will appear, then, that Judgments in debt, for a sum certain ; Judgments by confession ; and all Judgments in favor of the plaintiff, after verdict, are Final ; but in every other case, as on default or demurrer, in actions of assumpsit, covenant, case, trespass, trover, &c., the Judgment is Interlocutory in the first place, the Petition of an administrator un- der the Statute, the Court order a real contract to be executed ; the Pe- tition averring the purchase money to be paid ; such order is conclusive ; and the payment of the purchase money cannot be called in question in a subsequent suit on the contract ; Bigeloiu V. Bigelow, 4 Ohio Rep. 138. So, where a. joint Judgment is rendered against several, and one dies ; and afterwards the plaintiff un- dertakes to revive the Judgment a- gainst the administrator of the de- ceased judgment debtor, but fails on demurrer to the scire facias ; — the Judgment on the demurrer is conclu- sive ; nor can the plaintiff afterwards go into Equity to assert his rights ; for his remedy, if he had any, was by appeal, or writ of Error ; Biiel V. Cross, 4 Ohio Rep. 327. And where Commissioners appointed by the Court, under a Statute for that purpose, condemn the lands of an individual for public uses ; Such sen- tence is conclusive, in an action of Trespass by the original owner qf the land ; Young v. Buckingham, 5 Ohio Rep. 485. The early Judicial proceedings under the Territorial Government are to be sustained if possible ; Ludloiv^s heirs v. Wade, .5 Ohio Rep. 494. In a Bill by a purchaser on Execution to quiet his title, where there is no transcript of complete record — no process — no pleadings — but only a copy of the Court Journal is shown, in which, after giving the name of the case, it is stated, That the parties appeared, and submitted the case to the Court, who entered Judgment for the plain- tiff — This is a vahd Judgment while it remains unreversed ; Douglass v. McCoy, 5 Ohio Rep. 522. A judg- ment in the name of the Treasurer, instead of the Trustees, under the Act of 1820 regulating School Lands, is voidable only and not void ; and such Judgment is available to work a forfeiture of the lease for non-pay- ment of rent ; Lessee of Hart v. Johnson, 6 Ohio Rep, 87. A Judg- ment in favor of the Mi. Ex. Co. on a short notice, under their charter, is coram won judice, and void, unless the record shows a notice regularly made and served ; Mi. Ex. Co. v. Brown, 6 Ohio Rep. 535. Under the Attachment Law of 1805, the Sheriff omitting to sign the invento- ry and appraisement is a mere irreg- ularity, and cannot be taken advan- tage of in ejectment by one claiming under the judgment debtor against the purchaser in the attachment suit; MitchelVs Lessee v. Eyster, 7 Ohio Rep. 257, Part 1st. A Judgment from another State cannot be impeach- ed, at Law, for fraud : Equity alone, it seems, can give relief ; Anderson V. Anderson, 8 Ohio Rep. 108. It seems to be now well established, That a Judgment obtained in another State, without personal notice, is on- ly to be regarded as a foreign Judg- ment, and is not within the provis- ion of the Constitution of the United States ; Jb. The probate of a will is a Judicial act, and cannot be called in question, in a collateral suit ; Bai- ley V. Bailey, 8 Ohio Rep. 239. A Judgment in favor of an administra- tor defendant, in Massachusetts, upon a plea of the Statute of Limitations of that State, is no bar to a bill in equity, in Ohio, between the same 166 ASSUMPSIT. Judgments. deciding only that the plaintiff ought to recover, but leaving the amount to be ascertained by a jury, upon an inquiry of damages, or by the Court. In our Practice, no writ of inquiry is sued out, as in England ; but the damages are assessed, in some cases, by the Court, and in others, by a jury which is regularly summoned to attend at parties, seeking to subject after dis- covered property of the decedent to the payment of the debt : Such Judgment would not be a bar in Massachusetts; Mattoon v. Clapp, 8 Ohio Rep. 248, A Judgment recov- ered in one County, if the Court had jurisdiction, it seems, is conclusive of the rights of the parties, not only in that particular County, but through- out the State, and throughout the U. States, and perhaps throughout the world ; Avery'' s Lessee v. Pugh, 9 Ohio Rep. 67. A Judgment or Decree against a feme covert is good till reversed ; Pillsbury^s Les- see V. Dugan,9 Ohio Rep. 117. In ejectment by the purchaser on an execution issued on an Order of maintenance, under the Bastardy Act, the defendant cannot set up an error m entering the Order ; such as giving a direct Judgment for a spe- cific sum of money, without finding that the defendant was the " reputed father;" Darby'' s Lessees. Carson, 9 Ohio Rep. 149. A judgment a- gainst a corporation, where process Avas served on individuals who are not called ofiicers, cannot be impeach- ed by a stranger in a suit in Chance- ry in which the corporation, the stockholders, and the individuals serv- ed are parties, and who make no ob- jection, no fraud or collusion being charged ; Fahs v. Taylor, 10 Ohio Rep. 104. In ejectment by one who has obtained a Decree against un- known heirs, under the Statute, the defendant cannot impeach the De- cree by showing that the affidavit was not filed till after the suit was brought — It is enough if such affi- davit be filed before any order is ta- ken affecting the rights of the par- ties ; Snllivanfs Lessee v. JVeaver, 10 Ohio Rep. 275. Money paid on a Judgment cannot be recovered back, in another action, while the Judgment remains in force ; Job v. Collier, 11 Ohio Rep. 422, 423. The judicial proceedings of Courts of general jurisdiction, exercising the ordinary powers of Chancery or of Common Law, are presumed to be regular, and such Courts are pre- sumed to act within the scope of their authority. Every intendment will be made to support their powers. Yet, even in the proceedings of these Courts, if they transcend the limits which the law prescribes, and as- sume to act where they have no ju- risdiction, their acts are utterly void. Where the Law confers upon Courts an authority, not after the course of Common Law, over property whose owners are required to be before them as adversaries, they act as tribunals of special and limited jurisdiction. It is necessary that such tribunals show they act within the scope of their powers : but after jurisdiction is once acquired, however irregular or erroneous their proceedings may be, they cannot be collaterally im- peached ; and they conclude all per- sons, unless annulled by certiorari or appeal : All these cases, however, assume that the jurisdiction of the Court is first estabhshed ; and no at- tempts are made to sustain their pro- ceedings by intendment or presump- tion until after this essential prere- quisite : And this want of jurisdic- tion may always be shown, as it ren- ders the act done void or unavailable for every purpose ; Adams'' Jjessee V. JeO'ries, 12 Ohio Rep. 2.53. S. P. 3 Marsh, 43 ; 4 Monroe, 544 ; ASSUMPSIT. 167 Judgments. every Term of the Court. In cases of bills of exchange, promissory notes, and the like, after default, or where no jury is required, it is customary for the attorney of the party to calculate the amount of damages, and submit the same to the inspection of the Court. The right to recover being thus established, and the amount of damages ascertained by the Court, or Jury, Final Judgment is entered up accordingly. Sdo. 267; 1 Litt. 417; 1 Dana, 417 ; 4 do. 430 ; 13 Ohio Rep. 503, 505, 548 ; 15 do. 505, 543, 548 ; 14 do. 228 ; 4 Blackf. 169; 5 do. 223, The orders of a Court of Pro- bate, of competent jurisdiction, direct- ing the sale of real estate by Admin- istrators and Guardians ; and Orders of sale in Partition, are looked upon in the same light as Judgments ; and cannot be impeached collaterally ; 3 Ohio Rep. 240 ; 3 do. 553 ; 4 do. 129 ; 4 do. 138 ; 5 do. 494 ; 6 do. 87 ; Q do. 255 ; 7 do. 198, Part 1st.; Sdo. 87; 8 do. 239; 8 do. 415; 9 do. 19; 9rfo. 108; 9 do. 117; 9 do. 145; 9 do. 170; 10 do. 250 ; 12 do. 195 ; 12 do. 253 ; S. P. 2 Pet. 164 ; 4 do. 476 ; 10 do. 470 ; 13 do. 381 ; 13 Ohio Rep. 505, 543, 548; 15 do. 435, 689, 715. But the Court must have Jurisdic- tion : Thus, if a Guardian, after the ward is twelve years old, without any new appointment, sells the ward's lands, under an Order of Court ; the sale is void ; Perry'' s Lessee v. Brai- nard, 11 Ohio Rep. 442; S. P. MaxsonCs Lessee v. Sawyer, 12 Ohio Rep. 195. So, a sale is void made by an administrator under the Order of a Court of Probate in the State of Connecticut; Nowlerx. Coif, 1 Ohio Rep. 519. Nor can a Court of Chancery, in Virginia, give pow- to an administrator there, with the will annexed, to make a valid con- tract for the sale of the testator's lands lying in Ohio ; Wills v. Cow- per, 2 Ohio Rep. 124 ; S. P. Henrij V. Doctor, 9 Ohio Rep. 49 ; S. P. 13 Ohio Rep. 368. So, since 1824, an administrator's sale by order of Court, the heirs not being parties, is void, for want of Jurisdiction ; ^d- ams' Lessee v. Jeffries, 12 Ohio Rep. 253. Where the Associate Judges of a County become hable to lose their offices for not removing in due time from an old County into a new one, but before they are ejected they proceed to appoint a Clerk: Such appointment is a valid one — They are judges de facto, and their acts and Judgments, as such, are binding; The State of Ohio v. Ailing, 12 Ohio Rep. 16. It seems that so far as the community or third persons are concerned, the validity of the appointments and Judgments of a Court, de facto, cannot be gainsayed or denied ; lb. See Ram on Legal Judgments, Law Lib. Vol. 7. 168 . ASSUMPSIT. Judgments for Plaintiff. Judgments for Plaintiff. No. 1. Judgment for Plaintiff on Demurrer to a plea in Abate- ment. V. > In Assumpsit. C— D— , ) This cause came on to be heard upon the demurrer of the said A. B. to the plea in Abatement of the said C. D. and was argued by counsel, and the Court being fully advised in the premises, are of opinion that the said plea in Abatement, and the matters therein con- tained, are not sufficient in law to quash the writ of the said A. B. Wliereupon it is considered, that the saidC. D. do further answer to the writ of the said A. B. No. 2. Judgment for Plaintiff, on Demurrer to a Replication to a plea in Abatement. A— B— , ^ V. > In Assumpsit. C— D— , ) This cause came on to be heard upon the demurrer of the said C. D. to the replication of the said A. B. to the plea in abatement of the said C. D. and was argued by counsel, and the Court being fully ad- vised in the premises, are of opinion that the replication aforesaid, and the matters therein contained, are sufficient in law to maintain the said writ of the said A. B. Whereupon, it is considered that the said C. D. do further answer to the writ of the said A. B. No. 3. Judgment for Plaintiff, on Demurrer to a Declaration or Replication, and Damages assessed by a Jury. A— B— , ^ V. > In Assumpsit. C_ D— , ) This cause came on to be heard upon the demurrer of the said C. D. to the declaration, or, replication, of the said A. B. and was ar- gued by counsel, and the Court being fully advised in the premises. ASSUMPSIT. 169 Judgments for Plaintifl'. are of opinion that the declaration, or, replication, aforesaid, and the matters therein contained^ are sufficient in law to support this action;'^ Whereupon, it is considered, that the said A. B. ought to recover l)is damages against the said C. D. by reason of the premises,* and the said A. B. demanding a jury to assess the same, a jury being called, come, to wit: E. F. &,c., who being empannelled and sworn well and truly to assess the damages sustained by the said A. B. by reason of the non-performance of the jwomises of the said C. D. in the dec- laration mentioned, upon their oaths do assess the same to — dol- lars ; Therefore, it is considered, that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid, in form aforesaid assessed, and also his costs in this behalf expended, taxed to — dollars.*^ The like. Damages assessed by the Court. [Proceed as in the last Precedent toJhe (*) — and neither party requiring a jury, the Court being fully advised in the premises, do as- sess the same to — dollars ; Therefore, it is considered, &c. [Con- clude as in the last Precedent.] (a) When the Demurrer is frivo- lous, or filed for delay, the Court will in general give final judgment; but when it is filed in good faith, and the Court are satisfied that the party has merits, leave will be given to withdraw the demurrer, and plead, reply, &c. ; See 1 Blackf. 301. When such leave is given, after en- tering judgment upon the demurrer, proceed thus : " Whereupon the said CD. moves the Court for leave to withdraw his said demurrer, and to plead to the said declaration ; which is granted him on payment of costs since fifing the demurrer." It is the practice of the Supreme Court to limit the time within which the plea shall be filed, and the costs paid, in order that the plaintiff may take judgment by default, if no plea be filed, and that the defendant may be attached for non-payment of the costs. The form may be thus : " And it is ordered that the said C. D. plead to the said declaration within — days, and that he pay said costs within — days." (b) In the Supreme Court, add, " And it is ordered that a special mandate be directed to the Court of Common Pleas for said Conty of — to carry this judgment unto execu- tion." 22 ITO ASSUMPSIT. Judgments for Plaintiff. No. 4. Judgment for Plaintiff, on Demurrer to a Plea or Re- joinder. In Assumpsit. This cause came on to be heard upon the demurrer of the said A. B. to the plea, or, rejoinder, of the said C. D. and was argued by counsel, and the Court being fully advised in the premises, are of opinion that the said jtlea, or, rejoinder, and the matters therein con- tained, are not sufficient in law, to bar the said A. B. from his said action : Whereupon, It is considered that the said A. B. &-c. [Conclude as in No. 3, Ante. 168.] No. 5. Judgment for Plaintiff, by Default, and Damages assess- ed by the Court. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the said A. B. by his attorney, and the said C. D. though solemnly called, came not, but made default ; whereupon, It IS CONSIDERED that the said A. B. ought to recover his damages by reason of the premises, and neither of the parties requiring a jury, the Court being fully advised in the premises, do assess the damages of the said A. B. to — dollars : Therefore, It is considered, that, &c. [Conclude as in No. 3, Ante. 168.] The like, on Pi'oclamation. On this day, to wit : the — day of — , A. D.^ — , came again the said A. B. by his attorney, and it appearing to tiie satisfection of the Court that Proclamation, as hereinbefore ordered, has been duly is- sued and published, warning the said C. D. to appear here, this day, in open Court, and the said C. D. being now three times solemn- ly called, appeared not, but made default ; whereupon. It is consid- ered that the said A. B. ought to recover his damages, &c. [ Con- clude as in last Form.] (a) The day on which tlie clefcn- Proceedings by Proclamation, An- dant was ordered to appear; See te 19. ASSUMPSIT. 171 Judgment* for Plaintiff. Judgment for Plaintiff, against two defendants wher^e one pleads and the other makes default, Damages assessed by the Court. A— B— , ^ V. > In Assumpsit. C— D— , & E— F— ) This day came the said A. B. by his attorney, and the defendant C. D. though solemnly called, came not, but made default ; where- upon, It is considered that the said A. B. ought to recover his dam- ages against the said C. D. by reason of the premises, and neither party requiring a jury, and the Court being fully advised in the prem- ises, do assess the same to — dollars ; and thereupon came the de- fendant E. F., and this cause was submitted to the Court by the said A. B. and the said E. F. upon the issue therein joined between them, and the Court being fully advised in the premises, and neither party requiring a jury, do find that the said E. F. did assume and promise in manner and form as the said A. B. hath complained against him, and they assess the damages of the said A. B. by reason thereof to the sum of — dollars : Therefore, It is considered that the said A. B. recover of the said C. D. and E. F. the said sum of — dollars, his damages aforesaid, in form aforesaid, and also his costs in this be- half aforesaid, taxed to — dollars. No. 6. Judgment for Plaintiff, on Default, Damages assessed by Jury. A— B— , ) V. > In Assumpsit. C— D— , ) This day came the said A. B. by his attorney, and the said C. D. though solemnly called, came not, but made default, whereupon. It is considered, that the said A. B. ought to recover his damages, by reason of the premises, and the said A. B. or C. D. thereupon de- manding a jury to assess the damages aforesaid, a jury being called, come, to wit ; E. F. &c. who being empannelled and sworn well and truly to assess the damages aforesaid, do assess the same to — dol- lars; Therefore, It is considered, &c. [Conclude as in No. 3, An- te. 168.] 172 ASSUMPSIT. Judgments for Plaintiff. No. 7. Judgment for Plaintiff, plea, JN on- Assumpsit, and ver- dict/or' Plaintiff'. [Enter the Verdict as in Verdicts in Assumpsit. No. 1, Ante. 153. Therefore, It is considered, &c. [Conclude as in No. 3, Ante. 168.] No. 8. The like, against an Executor or Administrator. [Enter the Verdict as in Verdicts in Assumpsit ; No. 2, Ante. 154J — Therefore It is considered, that the said A. B. recover against the said C. D. as executor, or, administrator, as aforesaid, the sum of — dollars, his damages aforesaid in form aforesaid assess- ed [and also his costs in this behalf expended, taxed to — dollars] the said damages [and costs] to be levied of the goods and chattels which Avere of the said E. F. at the time of his death, and in the hands of the said C. D. as executor, or administrator as aforesaid, yet to be administered : See No. 3, nofe C6^ Ante. 169. No. 9. Judgment for Plaintiff, on submission to the Court to try Issue and assess Damages. A— B— , ^ V. >In Assumpsit. C— D— , ) This day came the parties by their attorneys, and submit this cause to the Court upon the issue joined between the parties, and the Court being fully advised in the premises, do find that the said C. D. did assume and promise in manner and form as the said A. B. hath com- plained against him, and they assess the damages of the said A. B. by reason thereof, to — dollars : Therefore It it considered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid in form aforesaid assessed, and also his costs in this behalf expended, taxed to — dollars. ASSUMPSIT. 173 Judgments for Plaintiff. No. 10. Judgment for Plaintiff" by Cognovit, relictaxenficaXione; Nil dicit — and Non sum informatus.'^ A— B— , ^ V. > In Assumpsit. C— D— , ) By Cognovit — This day came tlie parties by their attorneys, and thereupon the said C. D. relinquishing his plea, says that he cannot deny the action of the said A. B. nor, but that he did assume and promise, in manner and form as the said A. B. hath complained against him, and confesses that the said A. B. hath sustained dam- ages by reason of the premises, to — dollars : Therefore, It is con- sidered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages as aforesaid confessed, and also his costs in this behalf expended, taxed to — dollars. By Nil digit. — This day came the plaintiff, and the said C. D. in his proper person, or by G. H. his attorney comes and defends, &c., and says nothing in bar or preclusion of the said action of the said A. B. whereby the said A. B. remains therein undefended against the said C. D., and thereupon It is considered that the said A. B. ought to recover, &c. [Conclude as in No. 3, Ante. 168.] By Non sum informatus. — This day came the plaintiff, and the said C. D. by G. H. his attorney, comes and defends, &c., and the said A. B. prays that the said C. D. may answer his said declaration ; whereupon the said attorney of the said C. D. says that he is not informed"" by the said C. D. of any answer to be given for him to the said A. B. in the premises, nor doth he say any thing in bar or preclusion of the said action of the said A. B. whereby the said A. B. remains therein undefended, &c. [As before.] (a) For Judgment on Warrant of (b) " Non sum veraciter informa- Attorney, See Judgements for tus ;" 2 Coke's Inst. 315. Plaintiff, Post. No. 13. 174 ASSUMPSIT. Judgments for Plaintiff. No. 11. Judgment for Plaintiff on Replication of Nut tiel record. A— B— , ^ V. >In Assumpsit. C— D— , ) This day came the said A. B. by his attorney, and the said C. D. though solemnly demanded to appear and produce the record by him in pleading alleged, comes not, nor produces the same, but therein makes default: whereupon It is considered that the said A. B, ought to recover his damages by the reason of the premises ; and neither of the parties requiring a Jury, the Court being fully advised, &c. [Conclude as in '^o. 5, Ante. 170. Or in Debt, enter final Judgment at once, " Therefore, It is considered that the said A. B. recover of the said C. D. his said debt, and also — dollars for his damages which he has sustained, on occasion of the detaining the said debt, and also his costs herein taxed to — dollars. No. 12. Judgment for Plaintiff', on Plea of Nut tiel record. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the parties by their attorneys, and thereupon the record aforesaid being seen and inspected by Court it sufficiently ap- pears, that there is such a record of recovery against the said C. D. at the suit of the said A. B. as the said A. B. hath alleged : whereupon It is considered that the said A. B. ought to recover, &c. [Con- clude as in the last Precedent, or, if the damages be assessed by a jury, conclude as in No. 6, Ante. 171.] No. 13. Judgment by Confession on Warrant of Attorney.'' A— B— , ^ V. >In Assumpsit. C— D— , ) This day came into court A. B. by Mr. O. his counsel, and filed his declaration against tiie said C. D., and thereupon E. F., one of (a) For note (a) see next page. ASSUMPSIT. 175 Judgments for Plaintiff. the attorneys of this Court, appeared in open Court in behalf of the said C. D., and hy virtue of a warrant of attorney for that purpose executed hy the said C. D. and now produced in open Court and (a) Judgments confessed in person, or by Warrant of Attorney, in open Court, are valid without process ; and in such cases, pleadings are not necessary ; Matthew'' s Lessee v. Thompson, 3 Ohio Rep. 273. A Judgment cannot be taken except in term time ; lb. Where a Judgment is taken against a firm on a Warrant of Attorney executed under seal by one partner, without the consent of the other : the partner Avhose name was so used without authority, may set aside the Judgment, on Motion ; nor will Equity reheve him ; for his remedy at Law is complete ; McGee V. The Bank of Mt. Fleasunt, 7 Ohio Rep. 175, Part 2d. Warrants executed by a person in custody up- on mesne process in a civil action, to the Plaintiff, are invahd, unless some attorney on behalf of such person in custody, and expressly named by him, be present and sign the warrant as a witness : Swanks Stat. 065, §76. Form of a Warrant of Attorney TO CONFESS Judgment. I do hereby authorize and empower A. B. or any other Attorney at law in the State of Ohio, to appear in any Court of record in said State, at any regular term of such Court, and waive the issuing and service of pro- cess, and confess a judgment against me, and in favor of J. S. for the sum of — dollars, and thereupon to re- lease all error and waive all right and benefit of appeal in my behalf. Dated, &c. Y. X. [seal-] The like, in another Form: Tidd's Forms, 109. To E. F., G. H. and J. K., Gen- tlemen, Attorneys of his Majesty's Court of Kings Bench at Westmin- ster, jointly and severally, or to any other Attorney of the same Court. These are to desire and authorize you the Attorneys above named, or any one of you, or any other Attor- ney of the Court of Kings Bench aforesaid, to appear for me C. D., of, &c., in the said Court, as of this pres- ent — term, or any other subsequent term, and then and there to receive a declaration for me in an action of debt for — £'. for money borrowed, (or on a bond or obligation made and enter- ed into by me the said C. D. to the said A. B. in the penal sum of — £.) at the suit of the said A. B., and thereupon to confess the same action, or else to suflfer a judgment by nil dicit or otherwise, to pass against me in the same action, and to be thereup- on forthwith entered up against me of record of the said Court, for the said sum of — £. besides costs of suit : And I the saidC. D. do hereby further authorize and empower you the said attorneys, or any one of you, after the said judgment shall be en- tered up as aforesaid, for me and in my name, and as my act and deed, to sign, seal, and execute a good and sufficient release in the law to the said A. B. his heirs, executors and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections whatsoever, had, made, committed, done or suffered, or to be had, made, committed, done or suffered, in, about, touching or concerning the aforesaid judgment, or in, about, touching or concerning any writ, warrant, pro- cess, declaration, plea, entry, or other proceedings whatsoever, of or any 176 ASSUMPSIT. Judsrments for Defendant. duly proved,^ waived the issuing and service of process, and acknowl- edged that the said C. D. did assume and promise in manner and form as tiie said A. B. hath in his said declaration alleged against him, and confessed that the said A. B. hath sustained damages by reason thereof to — dollars ; Therefore, It is considered that the said A. B. recover of the said C. D. the said sum of — dollars his damages so confessed as aforesaid, and also his costs in this behalf expended, taxed to — dollars. And hy virtue of the same warrant of attorney, all error is released and all right and benefit of appeal waived by the said C. D. No. 14. Judgment for Plaintiff, on Demurrer to Evidenced This cause came on to be heard upon the demurrer of the defend- ant to the evidence of the plaintift', and was argued hy counsel, and the Court, being fully advised in the premises, are of opinion that the matter to the jury aforesaid, in form aforesaid, shown in evidence by the said A. B. is sufficient in law to maintain the issue joined be- tween the parties ; Therefore It is considered, &c. \^Conclude as in No. 3, Ante. 168.] Judgments for Defendant. No. 15. Judgment for Defendant upon nonsuit. A— B— , ^ V. >ln Assumpsit. C— D— , ) This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F. &c., who being empanneled and sworn the truth way concerning the same; and for (a) This statement may be omitted what you the said Attorneys, or any when the production of the Warrant one of you, shall do or cause to be of Attorney is not required by the done in the premises, or any of them, Court; Sivan's Stat. 665 § 76. this shall be to you and every of you The Warrant of Attorney however a sufficient warrant and authority, is commonly filed with the other pa- in witness whereof, I have hereto pers in the cause. There is, of set my hand and seal, the — day of course, no Process ; but it is custom- — in the year of the reign of our ary to file a declaration, containing sovereign, &c., and in the year of at least one of the money counts, our Lord 1797. Sealed and delivered in > (b) See Demurrer to Evidence, the presence of 5 Ante. 147. ASSUMPSIT. 177 Judgments for Defendant. to speak upon the issue joined between the parties, the said A. B. thereupon fails further to prosecute his suit against the said C. D., and thereupon the jury are discharged from the further consideration of the premises ; Therefore It is considered that the said C. D. go hence without day, and recover of the said A. B. his costs in this behalf expended, taxed to — dollars. [See No. 3, Note (b) Ante. 169.] No. 16. The like, before Jury sworn. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the said C. D. by his attorney, and the said A. B. being solemnly called, came not, nor does he further prosecute his suit; Therefore, &c. [Conclude as in the last precedent.] No. 17. Non-suit for want of Declaration. A— B—, ^ V. > In Assumpsit. C_ D— , ) This day came the said C. D. by his attorney, and the said A. B. having failed to declare against the said C. D. according to the rules of Court, or, as hereinbefore ruled to do : Therefore It is consid- ered, &c. [Conclude as in No. 15, Ante. 176.] No. 18. Non-suit for want of Replication. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the said C. D. by his attorney, and the said A. B. having failed to reply to the plea of the said C. D. according to the rules of the Court, or, as hereinbefore ruled to do : Therefore, &c. [Conclude as in No. 15, Ante. 176.] 23 178 ASSUMPSIT. Judgments for Defendant. No. 19. Judgment for Defendant on Discontinuance. A— B— , ^ V. > In Assumpsit. C— D— , ) This day came the said A. B. by his attorney, and discontinues his suit: Therefore, &c. [Conclude as in ^o. 15, Ante. 176.] No. 20. The like, on Nolle Prosequi. A— B— , ^ V. > In Assumpsit. C_ D— , ) This day came the said A. B. by his attorney, and says to the Court that he will no further prosecute his suit : Therefore, &c. [^Conclude as in No. 15, Ante. 176.] No. 21. The like, as to one or more Counts. A— B— , ^ V. >In Assumpsit. C— D— , ) This day came the said A. B. by his attorney, and says to the Court that he will not further prosecute his suit against the said C. D. in respect of the promises in the — Count or Counts, of the declaration mentioned : therefore as to the promises in that Count mentioned, let the said C. D. go hence without day, and recover of the said A. B. his costs in that behalf expended, &c. No. 21. Judgment for Defendant on Demurrer to Plea. A— B— , ^ V. > In Assumpsit. C— D— , ) This cause came on to be heard upon the demurrer of the said A. B. to the pica of the said C. D. and was argued hy counsel, and the Court being fully advised in the premises, are of opinion, that the said plea and the matters therein contained, are sufficient in law ASSUMPSIT. 179 Judgments for Defendant. to bar the said A. B. from his action against the said C. D.* Therefore It is considered, &c. [Conclude as in No. 15, Ante. 176.] iVo. 22. Judgment for Defendant on Demurrer to Declaration. A— B— , ^ V. > In Assumpsit. C— D— , ) This cause came on to be heard upon the demurrer of the said C. D. to the declaration of the said A. B. and was argued by counsel, and the Court being fully advised in the premises, are of opinion that the said declaration and the matters therein contained, are not sufficient in law to maintain the action of the said A. B. against the said C. D.'' Therefore, It is considered, &c. [Conclude as in No. 15, Ante. 176.] No. 23. Judgment for Defendant on Plea of Nul Tiel Record. A— B— , ^ V. >In Assumpsit. C— D— , ) This day came the parties by their attorneys, and the said A, B. hath not here in Court the record of the supposed recovery in the declaration mentioned, but makes default in producing the same : Therefore, &c. [Conclude a in No. 15, Ante. 176.] No. 24. Judgment for Defendant on Non- Assumpsit. A— B— , ^ V. >In Assumpsit. C— D— , ) This day came the parties by their attorneys, and thereupon came (a) If the plaintiff obtains leave to (b) Leave to amend the declara- withdraw his demurrer, and reply ; tion is, in general, given, if requested, instead of entering up final judgment, In such case, instead of entering up say, "and thereupon the said A. B. final judgment, say, "and thereupon moves the Court for leave to with- the said A. B. moves the Court for draw said demurrer, and reply to leave to amend his declaration, which said plea, " which is granted on pay- is granted on payment of costs since ment of costs since fifing said de- filing said demurrer." See, No. 3, murrer." See, No. 3, Note (a) Note (a) Ante. 169. Ante. 169. 180 ASSUMPSIT. Judgments in Special Cases. a jury, to wit, E. F. &c. who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say, that the said C. D. did not assume and promise in manner and form as the said A. B. hath complained against him : Therefore, &c. [Conclude as in No. 15, Ante. 176.] No. 25. Judgment for Defendant on Demurrer to Evidence.^ This cause came on to be heard upon the demurrer of the defend- ant to the evidence of the plaintiff, and was argued by counsel, and the Court being fully advised in the premises, are of opinion that the matter aforesaid shown in evidence to the said jury, in form aforesaid, is not sufficient in law to maintain the issue joined between the parties: Therefore, &c. [Conclude as in No. 15, Ante. 176.] No. 26. Judgment for Defendant on Notice of Set-off, balance found for Defendant. [Enter the Verdict, No 16, Ante. IQl , and proceed thus : '^ There- fore it is considered that the said C. D. recover of tiie said A. B. the sum of 500 dollars, the balance aforesaid, by the jury aforesaid found due to him, and also his costs in this behalf expended, taxed to — dollars." See, No. 3, note (b), Ante. 169.] Judgments in Special Cases. No. 27. Suggestion of the death of one of the defendants after Verdict and before Judgment. A— B— , ^ v. > In Assumpsit. C— D— and E— F— , ) [Enter the Verdict in the usual way — And upon this the said A. B. gives the Court here to understand and be informed, that after the last continuance of this cause, and before this day, to wit, on — the said E. F. died, to wit, at — , and the said C. D. then and there survived, which the said C. D. doth not deny, but admits the same to be true ; tiierefore let all further proceedings in this cause against the said E. F. be stayed: whereupon the said A. B. prays judgment (a) See Demurrer to Evidence, ^Jite. 147. ASSUMPSIT. 181 Judgments in Special Cases. against the said C. D. of and upon the premises : Therefore It is CONSIDERED, &c. Couclude OS in No. 3, Ante. 168.] No. 28. Where one Issue is found for the Plaintiff, and another for the Defendant. [Enter the Verdict as in No. 5, Ante. 171.] — Therefore It is CONSIDERED that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid, in form aforesaid assessed, and also his costs in that behalf expended, taxed to — dollars ; and that the said A. B. take nothing for his false claim against the said C. D. as to the premises whereof the said C. D. by the jury aforesaid, in form aforesaid, is acquitted ; and let the said C. D. go thereof without day. No. 29. On Special Verdict. [Enter the Vei'dictasin No. 18, Ante. 162, — This day [the day named in the Order of Court^ came again as well the said A. B. as the said C. D. by their respective attorneys aforesaid ; and hereupon all and singular the premises being seen, and by the Court now here fully understood, and mature deliberation being thereupon had, It is CONSIDERED by the Court that, &.c. [continuing the Judgment for the plaintiff, or defendant, according as the Court may have decided, in the same Form as in ordinary cases.] No. 30. Verdict and Judgment for Plaintiff upon a Plea in Abatement. [Commence as in No. 1, Ante. 153, — who being empannelled and sworn as well the truth to speak upon the issue joined between the parties, as to inquire of and assess the damages of the said John Nokes, by reason of the (not performing of the said several promises and undertakings, or according to the form of the action) in the declaration mentioned, in case the said issue shall be found for the said John Nokes, upon their oaths do say, that the said Joseph Styles, at the time of the suing out of the said writ in this behalf, was called and known as well by the name of John Styles as by the name of Joseph Styles, in manner and form as the said John Nokes hath above in that behalf alleged ; and they assess the damages, &.c, as in ordi- nary cases. 183 ASSUMPSIT. Complete Record. No. 31. The like, for the Defendant. [Commence as in the last Form,] — upon their oaths do say, that the said Joseph Styles was not, at the time of the suing out of the said writ by the said John Nd^es in this behalf, nor hath he at any time hitherto, been called or known by the name of John Styles, in manner and form as the said John Nokes hath above alleged ; Therefore It is considered that the said writ of the said John Nokes be quashed, and that the said Joseph Styles go thereof without day, and recover against the said John Nokes his costs in this behalf, taxed at — dollars. Complete Record.^ It is the duty of every Clerk, in vacation, to make a complete Rec- ord of the Writ, Recognizance of Bail, Pleadings, Orders and Judg- (a) For the origin of Judicial Rec- ords, See 1 Beeves^ Com. Law. 150, 151. The word "plaintiff" in a Record includes all the persons who sued ; 3 Bibb, 251. Chancery can- not alter the Records of Common Law Courts ; 6 J. J. Marsh. 539. The daily minutes of the proceed- ings of Court make no part of the Record, but are mere memoranda from which the Record is made up ; Harvey v. Brown, 1 Ohio Rep. 268. The Journal of the Court of Com- mon Pleas is one of the Records of that Court ; Young v. Buckingham, 5 Ohio Rep. 485. When the Jour- nal shows regular steps taken in a case : it is competent to show, by parol, the contents of the original pa- pers, no complete record being made, and the original papers being lost ; lb. The Term of a Court, for some purpose, it seems, is to be regarded as one entire day, so that the Jour- nals of ?hat term may be corrected at any time during the continuance of it ; Torbet v. Coffin, 6 Ohio Rep. 33. So, a judgment may be altered or set aside at any time during the term ; Mc Vickar v. Ludloios' heirs, 2 Ohio Rep. 246. The Orders, Decrees, and Minutes of the proceedings of the Court of Common Pleas, in those cases wherein no final Record is re- quired to be made, are matters of rec- ord and legal evidence ; The State of Ohio v. Dawson, 6 Ohio Rep. 251. Records, as made up by the Clerk, are valid without the signaj ture of the Presiding Judge ; and an exemplification of a Record may well be made before such signature — The Signature is required by the Statute merely to see that the Clerk does his duty in making up the Records ; Osburn v. Ohio, 7 Ohio Rep. 213, Part 1st. If the Clerk, in making up a complete Record, omits any ma- terial facts, which the papers on file, or the entries on the minutes or Jour- nals of the Court show to have ex- isted, the Record may afterwards be corrected in that respect ; and if the facts appear in proper form they may be added to the record, and certified as a part of it ; MitcheWs Lessee v. Eyster, 7 Ohio Rep. 257, Part 1st. Before the Act of 1834, it seems, the ASSUMPSIT. 183 Complete Record. ments, in each cause finally determined at the preceding Term, in a Book, to be prepared for that purpose ; which Record must be signed by the President or Presiding Judge of such Court, at the next suc- ceeding Term ; Swan's Stat. 678, <§. 1 17. The Record may be in the Form following: Form of Complete Record in the Common Pleas. Pleas continued and held at the Court House in Chil- licothe, within and for the County of Ross, in the Sixth Judicial Circuit of the Court of Common pleas of the State of Ohio, before the Honorable G. S. President Judge of said Sixth Judicial Circuit, and T. S,, F. P. and G. H., Esquires, Associate Judges of said Court of Common Pleas for the County of Ross aforesaid, of the Term of May, to wit : on the tenth day of June [date of final Judgment] in the year of our Lord One Thousand Eight Hundred and Thirty-Tioo. A— B— , ) V. [ IN ASSUMPSIT. C_ D— , ) Be it remembered that, heretofore, to wit : on the first day of August, in the year of our Lord one thousand eight hundred and thirty-one, A. B. by his attorney sued out of the Clerks office of the Court aforesaid, the fol- lowing writ of Capias ad respondendum, against C. D., to wit : [Seal.] The State of Ohio, Ross County, ss. To the Sheriff of said County ; Greeting. We com- mand you to take C. D. if he may be found in your bail- spondendum'. iwick, and him safely keep, so that you have his body be- fore our Court of Common Pleas of the County afore- said, at the Court House in said County, on the first day Capias ad re- Law did not require mesne process entered on the Records ; nor can the to be made part of the Record ; Par- omission be cured by a nunc pro tunc ker''s Lessee v. Miller, 9 Ohio Rep. order at a subsequent Term ; lb. 108. The Docket of a Court is no Orders, Judgments, Decrees, &c., part of its Record ; Moor ev. Brown, are to be entered upon the Journal, 10 Ohio Rep. 197. A notice of Ap- at length, and with the same techni- peal marked by the Court on its cal precision as is required in the docket but not carried into the Jour- Complete Record ; 1 Ohio Rep. 368; nals is not a compliance with the See Bills of Exception, Post. Statute requiring such notice to be 184 ASSUMPSIT. Complete Record. of their next Term, to answer unto A. B. in a plea of as- sumpsit : Damages, 1000 Dollars, and have you then there this writ. Witness, T. C. Clerk of our said Court of Common Pleas, at ChilHcothe, this Jii'st day of Au- gust, A. D. 1831. Upon which writ was the following indorsement, to wit : Suit brought on note given by deft. Indorsement, to pltfF. for 800 Dollars, dated June 1, 1831, also for goods sold and delivered, money had and received, &c., dama- ages, 1000 Dollars. Amount sworn to ^1000. Sheriff will hold to bail in 2000 Dollars. X. Y. Atty. for Plain- shenff's re- tiff. And afterwards, to wit : on the sixth day of Octo- ber in the year last aforesaid, the said wiit was returned to the Court aforesaid by said Sheriff, indorsed as follows, to wit : I have taken the body. S. W. Sheriff of Ross ,, County. And afterwards, to wit : on the day and year Kecognizanco •' ■ , r ^^ ■ p • i i -i of Special Bail, last aforesaid, the followmg recognizance of special bail was entered into, to wit: The State of Ohio, Ross Coun- ty, ss. Be it remembered that on this sixth day of Oc- tober, in the year of our Lord one tiiousand eight hun- dred and thirty-one, G. H. and E. F. of the County of Ross personally appeared before F. C. Clerk of the Court of Common Pleas of the County of Ross, and severally acknowledged themselves to owe unto the said A. B. the sum of two thousand dollars to be levied on their several goods and chattels, lands, tenements and estates ; upon condition, that if the said defendant C. D. shall be con- demned in this action at the suit of the said A. B. he shall pay the costs and condemnation of the Court, or be rendered, or render himself, into the custody of the Sher- iff of said County, for the same, or in case of failure, that the said G. H. and E. F. will pay the costs and condem- nation for him. Taken and acknowledged, the day and Continuance, year above written before me, F. C. Clerk. And after- wards, to wit : on the same day and year last aforesaid, on motion of the said A. B. this cause was continued until Declaration, ihc nc.xt term of tliis Court. And afterwards, to wit ; on the second day of March, in the year of our Lord one thousand eight hundred and thirty-two, the said A. B. filed in the Clerk's office aforesaid, the following dec- laration, to wit: Ross County, ss. Court of Common Special Count. Pleas, October Term, A. D. 1831. A. B. complains of C. D. in a plea of assumpsit, for that whereas the said C. D. on the first day of June, in the year of our Lord one thousand eight hundred and thirty-one, at the County of Ross aforesaid, made his promissory note in writing, and delivered the same to the said A. B. and thereby ASSUMPSIT. 185 Complete Record. promised to pay to the said A. B. or order, eight hundred dollars in thirty days after the date thereof, which period has now elapsed, and the said C. D. then and there in consideration of the premises, promised to pay the amount of the said note to the said A. B. according to the tenor and effect thereof: And also for that whereas the said C. Common D. on the tenth day of July, in the year of our Lord one ^°"°*^ thousand eight hundred and thirty-one, was indebted to the said A. B. in one hundred dollars for the price and value of goods, then and there bargained and sold by the said A. B. to the said C. D. at his request : And in one hundred dollars for money then and there lent by the said A. B. to the said C. D. at his request : And whereas the said C. D. afterwards, to wit: on the twentieth day of Ju- ly, in the year last aforesaid in consideration of the prem- ises, then and there promised to pay the said last mention- ed several sums of money to the said A. B. on request: Yet he hath disregarded his promises, and hath not paid the said several sums of money, nor either of them nor any part thereof: To the damage of the said A. B. 1000 Dollars, and thereupon he brings suit, &c. : By X. Y. his attorney. And afterwards, to wit : on the /owr?^ day of Plea. General May, in the year last aforesaid, the said C. D. filed in the '^^"^ Clerk's office aforesaid, the following plea, to wit : C. D. ads. A. B. Ross County Common Pleas : And the said CD. comes and defends, &c., and says that he did not assume and promise in manner and form as the said A. B. hath declared against him, and of this he puts himself upon the country ; by C. W. his attorney ; and the said A. B. doth the like. And afterwards, to wit : at the May Term of the said Court, in the year of our Lord one thousand eight hundred and thirty-two, to wit: on the y^^ji^^ fifth day of June, the year last aforesaid, came as well the parties aforesaid, as also a jury, and thereupon a verdict of the same jury was taken upon the issue joined between the parties, as follows, to wit : A. B. v. C. D. : This day came the parties by their attorneys, and thereupon came a jury, to wit: E. F., G. H., J. V., L. M., N. O., P. Q., R. S., T. U., V. W., A. S., T. S., and B. S., who being empannel- led and sworn the truth to speak upon the issue joined be- tween the parties, upon their oaths do say, that the said C. D. did assume and promise in manner and form as the said A. B. hath complained against him ; and they assess the damages of the said A. B. by reason thereof, to eight hundred dollars : And thereupon the said C. D. moved the Court for a new trial, and filed his reasons therefor, as 24 186 ASSUMPSIT. Completo Record. follows, to wit : C, D. ads. A. B. : Motion for a new trial. New Trfd " '^''^^ ^^^^ ^' ^- "^o^^^s the Court for a new trial in this cause for the following reasons, to wit : First, Because the verdict of the jury was against the weight of evidence. Second, Because the Court erred, in admitting the Dep- osition of T. S. in behalf of the plaintifi— By C. W. his attorney. And afterwards, to wit : on the sixth day of June, in the year of our Lord one thousand eight hundred and thirty-two, came again the parties, and thereupon said Motion for a New Trial was overruled by the Court, as follows, to wit : A. B. v. C. D. In Assumpsit : This day came again the parties by their attorneys, and the Motion of the said C. D. for a New Trial came on to be heard, and was argued by counsel, on consideration whereof, It Motion over- is Ordered by the Court that said Motion be overruled. And thereupon, afterwards, to wit : on the day and year first aforesaid, to wit ; on the tenth day of June, in the year of our Lord one thousand eight hundred and thirty- two, came again the said A. B. and prays judgment upon the premises against the said C. D. ; Wherefore It is CONSIDERED that the said A. B. recover of the said C. D. the said sum of eight hundred dollars, his damages afore- said, in form aforesaid assessed, and also his costs in that behalf expended taxed to twenty dollars. ruled. Final Jud merit. Form op Attestation and Certificate ; 7 Cranch, 408." The State of Ohio, Ross County, ss. I hereby certify, that the foregoing is truly taken and copied from (a) The Act of Congress of May 20th, 1790, provides "that the rec- ords and judicial proceedings of the Courts of any State shall be proved or admitted in any other Court within the United States, by the attestation of the Clerk, and the seal of the Court annexed, if there be a seal, together Avith a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form." By the Second Section of a supple- mentary Statute passed March 27lh, 1804, all the provisions of the Stat- ute of 1790, are made to " apply as well to the public acts, records, judi- cial proceedings, and Courts of the respective Territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, &c., of the several States.^'' The Attestation and Cor- tihcatc under the Act of 1790, may be as in the above Form ; 7 Cranch, 408. Under the Statute of 1790, the Supreme Court of the United States have held, that a Copy, certi- fied by the Clerk, without a Certifi- cate of the presiding judge that the ASSUMPSIT. 187 Complete Record. the Records of the proceedings of the Court of Common Pleas, within and for the said County of Ross. In testimony whereof I do hereto subscribe my name and affix the seal of said Court this — day of — A. D. — . F. C, Clerk of the Court of Common Pleas [Seal.] of said Ross County. I, A. B., President Judge of the Court of Common Pleas, with- attestation is in due form, is not ad- missible evidence, in the Courts of another State or District ; 9 Crunch, 122. It had been previously held, in Pennsylvania, that a copy not cer- tified according to the Statute was ■prima facie evidence, but not con- clusive ; 2 Veates., 532. And in North Carolina, that the Statute was only affirmative, and did not abolish all other modes of authentication ; 1 Hayw. 359. A record of another State, informally certified, cannot be read even on a question of discharg- ing on common bail ; 1 Pet. 352. To make a record of a Court of one State, evidence in another, the attest- ation must be according to the form used in the State from which the rec- ord comes ; and the only evidence of this fact is the certificate of the pre- siding judge of that Court ; Ibid. 1 Johns. Cas., 238 ; 9 Crunch, 122. A certificate of a presiding judge, stating that the person, whose name is signed to the attestation of the rec- ord, is Clerk, and that the signature is his hand writing, is not in con- formity with the requirements of the Statute ; 1 Pet. 352. Wherever the Court, whose record is certified, has no seal, this fact should appear, either in the certificate of the Clerk, or in that of the Judge ; Ibid. : See, also, 1 Hayw., 395 ; 1 Blackf. 399. The attestation by the Clerk, of the record of a judgment in another State, must have the seal of the Court annexed to it, and it is not sufficient that such seal is annexed to the certificate of the Judge ; Wliarton's Dig., 224 ; 3 Wash. C. C. Rep,, 126. A record of another State, attested by the Clerk, with the seal of the Court annexed, and the certificate of two judges, sta- ting it to be in due form, one of them stating himself to be the judge " that presided, and one of the judges of the superior Courts of law of said State ;" and the other stating himself to be " the senior judge of the Courts of law of said State" — was held to be an insufficient authentication; 3 Bibb. 369. The Certificate of the Judge must be by the Chief Judge, or by the presiding judge if the Court consists of more than one Judge, and this should appear frorq. the Certificate ; Id. : See 2 Marsh, 497. In those States where a Justice of the peace holds a Court of record ; when he is the sole Justice and has no Clerk, he may certify that he is the presiding magistrate and Clerk of the Court, that there is no seal, and that the attestation is in the usual form ; and a copy of the record thus certified is admissible in evidence. But a copy of the record of a judg- ment rendered by a justice in anoth- er State, authenticated only by his certificate, stating that it is a true copy of the file and records remain- ing in his office, is not sufficiently proved, either at common law, or ac- cording to the Statute of the United States ; 5 Day, 363. It seems no presumption arises here that a justi- ce's court of a sister State is or is not a court of record. If the plaintiff 188 ASSUMPSIT. Complete Record. in, and for the County of Ross, and State of Ohio, do hereby certify, that F. C. is Clerk of said Court, and that his attestation aforesaid is in due form of law. [This Certificate is unnecessary when the Record is to he used in the Courts of the same State.^ Dated, &c. A. B. shows that it is a court of record, then the judgment may be authenticated, under the act of Congress. If it is not a Court of Record, then it comes within the Constitution of the United States, Art. 4, § 1, which provides that full faith shall be given to the judicial proceedings of each State, and may be proved by an examined copy, or by a certified copy and cer- tificate of the Clerk of the county Court under his official seal ; Wright., 127, 430; 5 Ohio Rep., 545 ; Pdton V. Plainer, 13 Ohio Rep. A decree in Chancery must be authenticated according to the Statute of 1790 ; 3 Marsh., 293. A record of a Court of the United States is not within the Statute of 1790; and if under the seal of the Court, and certified by the Clerk as a copy, is evidence in the State Courts, without a certifi- cate of the presiding judge ; ""Z Johns. Cas., 119. So the record of a Court of a Territory was held, in Ken- tucky, not to be within the provision of the Constitution and Statute ; 2 Bibb., 334. By immemorial usage, also in Massachusetts, a copy of the records of the Courts of their own State, attested by the Clerk, is ad- missible in evidence ; 4 Mass. 402. This is also the common practice in Ohio : See, also 2 Johns. Cas., 119 ; Col. and Caines'' Cas., 136. In South Carolina, by a Statute passed more than a century since, attested copies of all records, certified by the Clerk of the Court, are admissible in evidence ; 2 Nott & McCord, 299 ; 1 Starkie's Ev., 151. 3. An At- testation by a Deputy Clerk, and with the initials of official character, held good ; 3 Marsh., 41. DEBT. 189 Sunimons. DEBT.= The action of Debt is, in general, commenced like the action of Assumpsit, by suing out a Summons, or Capias ad respondendum. 1.. Summons. The Summons is issued, as a matter of course, upon filing a Prae- cipe with the Clerk of the proper Court. [See Praecipe in Assumpsit, Ante. 12.] (a) Debt will lie on a decree in Chancery; 3 /. J. Marsh., 600; But See 2 Blackf., 31, and Cases there collected. When it lies on Promissory Notes, &c. ; 1 Blackf., 232. Debt on simple contract lies against executors and administrators ; Tapper'' s Executors v. Tuppers' Ex- ecutors, 3 Ohio Rep., 387. Debt lies against Attorneys at Law and Physicians for the professional tax ; The State of Ohio v. Hibbard, 3 Ohio Rep., 63 ; v. Same\. Proudjit, lb; Same v. Gazlay, 5 Ohio Rep., 14. On a sealed bill to pay a cer- tain sum, in trade, generally, or in houses, or land, or corn, it seems, ei- Debt or Covenant will lie ; Nelson V. Ford, 5 Ohio Rep., 473. Where in a lease, not under seal, the tenant stipulates, under a penalty, to pay part of the crop, as rent. Debt will not lie for such penalty ; lb. Debt or Assumpsit, it seems, will lie on a Justice's Judgment from an adjoin- ing State ; Silver Lake Bank v. Harding, 5 Ohio Rep., 545. Debt lies on a judgment of one of our own Courts, and the right of action is complete as soon as the judgment is obtained and the record made up ; Headly v. Roby, 6 Ohio Rep., 521 ; S. P. 4 Conn., 402 : And there is no merger of the old judgment ; 7 Paige, 86. Debt for rent of real es- tate lies in any county where process can be served on the defendant : The division of personal actions into local and transitory is not known in Ohio ; Genin v. Grier, 10 Ohio Rep., 209. As a general rule. Debt lies for a sum certain, yet it is the proper remedy for a Penalty imposed by a Statute, though the amount is uncer- tain, and is to be fixed by the Court between Five and Fifty Dollars ; Rockwell v. The State of Ohio, 1 1 Ohio Rep., 130. Debt hes on a bond for the re-delivery of property under the Statute authorizing personal prop- erty to be appraised on execution ; 15 Ohio Rep., 65. Nil Debet is a good plea where the deed is merely inducement to the action ; Id., 372. 190 DEBT. Summons. Prjecipe for Summons in debt. In Debt — Debt — dollars — Damasres — dollars.'' '■&'■ Issue a Summons returnable [forthwith^ if in Term time, or at next term, if in vacation^ Indorse, " Suit brought on single bill un- der seal given by defendant to plaintiff for — dollars, dated, &c. Also for goods sold, &c. [See Precipe in Assumpsit, Ante. 12.] T. S., Att'y for Pl't'ff. To the Clerk of — Com. Pleas. Dated, &c. Writ of Summons. The State of Ohio, To the Sheriff of — County : Greeting : We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith \if in Tei'm time] or, on the first day of their next Term \if in vacation'] to answer unto A. B. in a plea of debt for — dollars — Damages — dollars ; and have you then there this writ.'' Witness, F. C, Clerk of our said Court of Common Pleas, at C, this — day of — A. D., — . F. C, Clerk. For the Forms of Alias, Pluries, and Testatum Summons, See Ante. 15. (a) The recovery, m Debt, is com- sess the damages, which are often monly for a sum certain, eo nomine, merely nominal ; Chitt. PI., 97; 8 and damages for the detention thereof. Petersd. Mg., 525. The jury first find the matter of the issue ; as upon Nil Debit — That the (b) For the proper Indorsements ; defendant owes the debt ; or, upon See Summons in Jissiimpsit, Ante. Non est factum — That the bond is 14. the defendant's deed ; and then as- DEBT. 191 Capias ad Respondendum. II. Capias ad respondendum. When a Capias may be sued out, See Ante. 20 PniECiPE FOR Capias. In Debt. Debt — dollars — Damages — dollars o^ Issue a Capias ad respondendum returnable forthwith [if in Term time] or, at the next Term [if in vacation] Indorse, &c. See Pi'(B- cipe for Cajnas in Assumpsit, Ante. 21. Hold to Bail in the sum of — dollars [double the amount sworn to.] To the Clerk of — Common Pleas. Dated, &c. T. S., Att'y for Pl't'ff. For the proper Affidavits, &c.. See Ante. 22, 2.3. Writ or Capias ad respondendum. The State of Ohio, To the Sheriff of — County : Greeting : We command you to take C. D. if he may be found in your baili- wick, and him sately keep, so that you have his body before our Court of Common Pleas, of the county aforesaid, at the Court House in said county, fo7'thivith, or, on the first day of their next Term, to answer unto A. B. in a plea of Debt for — dollars — Dam- ages — dollars ; and have you then there this writ. Witness, F. C, Clerk of oar Court of Common Pleas, at C, this — day of — A. D. — . F. C, Clerk. Tor the proper Indorsements to be made upon this writ, the Forms of an Alias, Pluries, and Testatum Capias, Bail Bond to the Sheriff, P»-ecognizance of Special Bail, Bail piece, and Appearance of De- fendant, &c., See Ante. 22 to 34. 193 DEBT. Declarations. Declarations. No. 1 . On Promissory Note, under seal. County, ss. Supreme Court, or Court of Common Pleas — Term. [The Term to which the ivrit was re- turned, or, the Term at which the cause was \ brought into Court, by Appeal or Certiorari,] lA.D.— A. B. complains of C. D.^ in a plea of debt,'' for that whereas * the said C. D. on — at — made his certain writing obligatory of that (a) For Forms of Commencement, Description of Parties, &c., See Common Counts in Assumpsit, n. (b) Ante. 30 : Also Declarations in As- sumnsit on Promissory Notes, Ante. 46. (b) It will be observed, that in this Precedent, the English Form of the Commencement, is omitted. That Form runs thus : " A. B. complains of C. D. being, &c., of a plea that he render to the said A. B. the sum of — dollars lawful money, &c. which he owes to, and unjustly detains from the said C. D., for that where- as, &c." The old authorities re- quired the blank in the Commence- ment to be filled with the aggregate of all the sums contained in the sev- eral counts ; and it was accordingly held that the plaintiff could neither prove or recover a less sum than that demanded in the Commencement of his declaration. The same principle was originally extended to the action of Assumpsit. Thus where the plaintiff declared in indebitatus as- sumpsit, for 50/. and the jury found a verdict in his favor for 471. Judg- ment was given for the defendant, "because it was found that he did as- sume only for part, and so the same assumpsit was not found, that the plaintiff did declare upon ;" Cro, Eliz. 292; Bac. Mg. Tit. Verdict. This doctrine no longer prevails in England, either in Assumpsit or Debt ; and it is now held that the plaintiff may recover any sum more or less than that demanded in the Commencement of the declaration ; 11 East. 62; 1 Saund. 288, n. 1; 1 H. B. 251 ; 2 Chit. PI. 179. The case in 11 East. 62, renders wholly unnecessary the demand of any sum whatever in the Commencement of the declaration. The plaintiff de- clared against the defendant oj a plea that he render to him the sum of 77501. which he owes to, and un- justly detains from him, &c. In the first count the plaintiff set out a bond, securing the payment of 1625/. and interest, and concluded that count with the common averment, that the 1625/. IV as parcel of the 77 501. above demanded. He then added ^7;e oth- er counts for goods sold,&c., in each of which he claimed 1625/. as par- cel and residue " of the said sum of 7750/. above demanded." The ag- gregate of all the sums mentioned in each count, was 9650/. being 2000/. more than the sum demanded in the Commencement of the declaration. The defendant demurred specially for this cause, and Lord Ellenbo- DEBT. 193 Declarations. date, sealed with his seal (and now to the Court here shown),'' and then and there delivered the same to the said A. B. and thereby bound himself to pay to the said A. B. or order — dollars in — days after the date thereof; which period has now elapsed ; And also for that whereas the said C. D. on — at — was indebted to the said A. B. in — dollars for the price and value of goods then and there bargained and sold by the plaintiff to the defendant at his re- quest. [Add the other Commo7i Counts as in Assumpsit, Ante. 36, ROUGH in giving judgment for the plaintiff", says, " That the words at the beginning o/" a jt;/ea that he ren- der so much, which raise the ques- tion, are themselves superfluous, and may therefore be rejected ; and re- jecting those words, there is in each count a perfect demand of a sum certain, without reference to the sum first mentioned in the declaration, which would also be rejected ; and then the declaration, concluding with a demand of damasfes for retaining- the debt, will refer to the sum total of the debt demanded by the several counts." In Nelson v. Ford, 5 Ohio Rep. 473, the same rule was adopt- ed on Special Demurrer ; and it was also held in the same case that the same vsrords in the conclusion, "Where- by an action has accrued, &c.," may be rejected as surplusage. (a) Profert is never made of wri- tings not under seal, but the Court, in its discretion, will order a copy to be given to the defendant, and stay proceedings till comphed with ; 1 Black/. 199; Stephens' PL Q8. By Statute (Swan's Stat. 670, § 93,) the plaintiflT, on demand, is required to give the defendant a copy of the in- strument declared on, or which he intends to offer in evidence ; and the defendant is required to do the like, of any instrument set out in his plea, &c.," and if refused, the original will in either case not be allowed to be given in evidence. For General Rules of Profert, See 1 Blackf. 219. In covenant for conveying land, a plea that a deed was tendered, &c., should make Profert of the deed ; 1 Bibb, 283. Oyer cannot be craved when there is no Profert ; 14 Ohio Rep. 490. Executors, who are de- fendants, cannot crave Oyer of their own Letters Testamentary, and set them out on the record ; 7 Ohio Rep. 171, Part 1st. Under the Stat, of Anne, want of Profert can only be taken advantage of by Spe- cial demurrer ; 2 J. J. Marsh. 290. If a bond or other deed be pleaded with a Profert, and the defendant plead non est factum, and the plain- tiff" cannot produce the bond, &c., at the trial, he will be nonsuited ; 4 East. 585: 2 Chit. PI. 191. Where it is out of the power of the party to make profert, he must alledge the proper excuse, which must be framed' to meet the state of facts. Jf the bond be lost, say " and which said writing obligatory having been lost," or " destroyed by accident," or, "by fire," or, "by the said C. D.; the said A. B. cannot produce the same to the Court here ;" See 3 T. R. 151. If the bond be in the possession of the defendant, say, " and which said writing obhgatory being in the pos- session of the saidC. D., the said A. B. cannot produce, &c." It seems to be sufficient if the excuse be true at the time of declaring : and if the deed be afterwards found, it may be given in evidence ; 2 Camp. 557 ; See, Pleas in Bar, in Debt, Post. 194 DEBT. Declarations. and Conclude — "yet the said C. D. hath not paid the said sev- eral sums of money, or either of them, nor any part thereof: To the damage of tlie said A. B. — dollars, [the amount stated in the iV7'it] and therefore he sues, etc. By T. S. his Att'y. No. 2. On a Single Bond,"" for the Payment of Money. [Proceed as in No. 1. Ante. 192, to the (*) — the said C. D. on — at — made his certain writing obligatory oi" that date, sealed with his seal (and now to the Court here shown,) and tiien and there de- (a) When and how a Bond may be discharged by parol ; 4 Eng. Com. Law Bep. 8, 216; 7 do. 62; 32 do. 201 ; 1 Sug. Vend. Ill, n. A declaration on a Bond as joint, when it is joint and several, is good; 5 Black/. 67. The effect of tearing off a seal from a joint and several Bond — a discharge of one is not a discharge of all in a several Bond ; 16 Eng. Com.Laiv Rep. 146. The effect of a covenant not to sue one of two joint obligors — not a discharge of both ; 6 Johns. Ch. 250. When a blank may be filled by the Court ; 15 Eng. Coin. Law Rep. 299, n. (a). The obligor in a money bond is lia- ble at law and in equity for the prin- cipal and interest expressed in the condition, though it exceeds the pen- alty ; 6 Paige, 88. Rule of dama- ges on Appeal Bond ; 13 Ohio Rep. 427. What alterations, after execu- tion, will avoid a deed ; 5 Mass. .538; 6 J.J. Marsh. 525 ; 5 Monroe, 31 ; 15 Ohio Rep. .507. A Bond though not in conformity with a Statute, is good pro tanto if not malum in se ; 10 Pet. 313. When not good either as Statutory or Common Law Bonds ; 15 Ohio Rep. 606 ; See also 1 Leigh, 485 ; 2 Brock. 96 ; 3 fVash. C. C. 10 ; 3 Call, 366. How regarded af- ter Statute has expired ; 15 Ohio Rep. 65. Where a Statute requires a Bond to be given on the allowance of a writ of error conditioned, " for the payment of the condemnation money and costs, in case the judg- ment of the C. P. should be affirm- ed in whole or in part " — a Bond conditioned, " to prosecute the writ of error with effect and abide the judg- ment of the Court thereupon had," is a substantial compliance with the Statute ; Gardner v. Woodyear, 1 Ohio Rep. 170 ; S. P. Reynolds v. Rogers, 5 Ohio Rep. 169 ; See 15 Ohio Rep. 372. And a Constable's Bond, made payable to the Trustees of the township, where the Statute requires it to be made payable to the Township treasurer, is good ; Bar- ret V Reed, 2 Ohio Rep. 409. Where a Statute required an Insolvent to give bond, conditioned to appear at the Term of the Court at which the application for the benefit of tjie Statute may be made, and the condi- tion annexed to a bond was. That the Insolvent should appear at, " the next May term, and that he shall not de- part the Court without leave" — Such variance does not invalidate the Bond; Com. In. V. Way, 3 Ohio Rep. 103; S, P. Collyer v. Johnson, 1 Ohio Rep. 235, Part 1st. And where a Statute prescribes that the condition of a County Treasurer's Bond shall be, " for the paying over, according to law, all moneys which shall come into his hands for Slate, County, DEBT. 195 Declarations. livered the same to the said A. B. and thereby acknowledged himself to be bound to the said A. B. in the sum of — dollars, to be paid to the said A. B. on demand ; yet the said C. D. hath not paid the said sum of money, nor any part thereof; To the damage, &-c. [Con- clude as in No. 1, Ante. 192.] No. 3. On a Bond without Date. [Proceed as in No. 1, Ante. 192, to the (*) — the said C. D. by Township, or other purposes," a Bond is good, conditioned that the Treasurer "shall faithfully and impar- tially discharge all the duties of his said office agreeably to law ;" The State of Ohio v. Findley, 10 Ohio Rep. 51. The summary proceed- ings authorized by Statute on a Col- lector's Bond cannot be resorted to unless the Bond be payable to the Commissioners of the County ; Miller V. Mont. County, 1 Ohio Rep. 271. If one puts his name and seal to a blank paper and delivers it to another, authorizing him to fill it up with a certain sum that may be found due, and it is filled up accordingly, — This is no deed ; and no action at all can be sustained on it ; Ayres v. Harness, 1 Ohio Rep. 368 ; See 4 Tm.Mg. 267; S Bibb, SQl. A Bond executed by one who was in- toxicated at the time, by the procure- ment of the obligee, may be avoided at law ; Lacy v. Garard, 2 Ohio Rep. 7. If, in such case, the party fails to set up the defence, at Law, he cannot afterwards go into Equity for relief; lb. A Bond for the pris- on limits is void, unless the defend- ant be actually in prison, and that fact be recited in the Bond ; Lytle v. Davies, 2 Ohio Rep. 277. A joint Bond for the prison limits in separate suits is void ; lb. A Bond for the re-delivery of property taken in execution and not sold for one half the appraisement, under the Act of 1820, and not re-delivered or tender- ed to the officer who made the levy, or his representatives, within six months, is forfeited, though no new execution be issued ; Wright v. Lep- per, 2 Ohio Rep. 297. Where a Bond is given, "in the penalty of 1000 dollars, for the performance of a marriage contract, which H. R. en- gages to perform with M. A.," the 1000 dollars is to be taken as a pen- alty, and not as liquidated damages : On such a Bond covenant will not lie ; Mrams v. Kounts, 4 Ohio Rep. 214. Where, on the apphcation of a complainant in Chancery to contin- ue an injunction, a new Bond is giv- en, which the Court order to be ta- ken in " the place of, and as a sub- stitute for," the old one, the first Bond is discharged ; Kent v. Bierce, 6 Ohio Rep. 336. But the old Bond is good, if the order be not substan- tially comphed Avith ; S. C. 7 Ohio Rep. 209, Part 2d. When in a County Treasurer's Bond the name of the Treasurer is recited in the bo- dy of it, but he neither signs nor seals it, his Sureties who do execute it are liable ; State of Ohio v. Bow- man, 10 Ohio Rep. 445. A Sher- iff's return, that he could find no goods or chattels, lands or tenements of the principal debtor, unincumber- ed by mortgage, is sufficient to au- thorize suit upon an injunction Bond ; Seymoxir v. King, 11 Ohio Rep. 342 ; See 13 Ohio Rep. 135. And, in such case, the Sheriff's return is conclusive ; lb. 196 DEBT. Declarations. his certain writing obligatory, sealed with his seal, and as the deed of the said C. D. on — at — delivered to the said A. B. (and now to the Court here shown,) acknowledged himself to be bound to the said A. B. in the sum of — dollars, to be paid, &c. [Conclude as in No. 1, Ante. 192.] No. 4. On a Bond by a Surviving Obligee. [Troceed as in No. 1, Ante. 192, to the (*) — the said C. D. on — at — made his certain writing obligatory of that date, sealed with his seal (and now to the Court here shown,) and then and there de- livered the same to the said A. B. and one E. F. now deceased, vvliom the said A. B. hath survived, and thereby acknowledged him- self to be bound to the said A. B. and E. F. in the sum of — to be paid to the said A. B. and the said E. F. or either of them, when thereto requested : Yet the said C. D. though often requested, hath not paid the same nor any part thereof to tiic said A. B. or to the said E. F. or either of them, in the life time of the said E. F. or to the said A. B. since the death of the said E. F. ; To the damage, &c. [Conclude as in No. 1, Ante. 192.] No. 5. By Baron and Feme, on a Bond given to a Feme dum sola. [Commence as in No. 1, Ante. 192, — A. B. and E. B. his wife complain of C. D. in a plea of debt, for that whereas the said C. D. on — at — made his certain writing obligatory of that date, sealed with his seal (and now to the Court here shown,) and then and there delivered the same to the said E. B. and thereby acknowledged him- self to be bound to the said E. B. then sole and unmarried, by the name of E. S., in the sum of — dollars ; to be paid to the said E. B. on demand : yet though often requested, the said C. D. hath nev- er paid the same or any part thereof to the said E. B. whilst sole, nor to the said A. B. and E. B. or either of them, since their intermar- riage. To the damage, &c. [Conclude as in No. 1, Ante. 192.] No. 6. Administrator of Obligee against Obligor. [Commence as in No. 1, Ante. 192, — A. B. as administrator of E. F. deceased, complains of C. D. in a plea of debt, for that where- as the said C. D. on — at — made his certain writing obligatory of that date, sealed with liis seal (and now to the Court here shown,) and then and there delivered the same to the said E. F. then in full DEBT. 197 Declarations. life, and thereby acknowledged himself to be bound to the said E. F. in the sum of — dollars, to be paid to the said E. F. on demand : Yet the said C. D, though often requested, hath never paid the same or any part thereof to the said E. F. in his life time, nor to the said A. B. as his administrator ; To the damage of the said A. B. as ad- ministrator as aforesaid — dollars, and therefore he sues, &c. And the said A. B. brings into Court here his Letters of Administration duly granted, &c., which give sufficient evidence to the Court that he is administrator of the said E. F. deceased. No. 7. Obligee against Administrator of Obligor. [Commence as in No. 1, Ante. 192, — A. B. complains of C, D. as administrator of E. F., in a plea of debt, for that whereas the said E. F. in his life time, to wit : on — at — made his certain writing obligatory of that date, sealed with his seal (and now to the Court here shown,) and then and there delivered the same to the said A. B. and thereby acknowledged himself to be bound to the said A. B. in the sum of — dollars, to be paid to the said A. B. on demand ; Yet though often requested, the said E. F. in his life time, did not pay, nor hath the said C. D. as his administrator, since his death, paid the said sum of — dollars, or any part thereof: To the damage, &.c, [Conclude as in No. 1, Ante. 192.] No. 8. On Bonds stating the Conditions, under the Statute."^ Proceed as in No. 1, Ante. 192, to the (*) — The said C. D. on — at — made his certain writing obligatory, sealed with his seal (and now to the Court here shown) and then and there delivered the same (a) At Common Law, the plaintiff, 2 Saimd. 187, n. 2. The Statute of upon a breach of the condition, re- Ohio \^Sivan^s Stat. 659, 660] is in covered judgment and had execution many respects similar to the Stat. 8 for the whole penalty of the bond, and 9 TV. It does not however eni- however trifling the damages he had brace, in terms, that class of bonds sustained ; and the defendant was which are given to secure the per- d riven into Chancery for relief. But formance of covenants or agreements now under the Stat. 8 and 9 TV. the contained in a separate instrument, plaintiff is bound to suggest breaches The words in the Statute, "may as- either in the declaration, or subse- sign breaches " are compulsory upon quently upon the record, and although the plaintiff; 5 T. R. 538, 636; 2 the judgment is still rendered for the TFils. 377 ; 1 Saund. 58, n. 1. The amount of the penalty, yet execution plaintiff under this Statute, may pro- issues only for the sum justly and ceed in either of two ways : equitably due ; 1 Saund. 58, n. 1 ; 1. He may declare for the pen- 198 DEBT. Declarations. to the said A. B. whereby the said C. D. acknowledged himself to be bound to the said A. B. in the sum of — dollars, to be paid to the said A. B. on demand, ** which said writing obligatory was and is subject to a certain condition thereunder written, whereby it is pro- vided, [that if the said C. D. should on or before the tenth day of August, A. D. 1831, make or cause to be made to the said A. B. a good and sufficient general warranty deed for — acres of land, situ- ate, &-C., then the said writing obligatory should be void, otherwise in full force. And the said A. B. avers, that the said C. D. though often requested, did not, on, or before, nor since, the said tenth day of August, A. D. 1831, make or cause to be made to the said A. B. a good and sufficient general warranty deed, for said — acres of land.] Where the bond contains other stipulations, upon which breaches are to be assigned, proceed thus : "And the said A. B. for assigning a further breach says, that, tyc." Wherefore the said A. B. says that he has sustained damages to the amount of — dollars, [the penalty of the bond or upwards,^ and thereupon, &-c. [ Con- clude as in No. 1, Ante. 192.] alty as upon a single bond, or a bond without condition — the defendant then in his plea sets out upon oyer the condition of the bond, and pleads a general performance ; the plaintiff thereupon assigns his breaches, to which the defendant pleads, and the issues thereon joined are tried hke other issues. Where, however, the condition of the bond is to perform covenants in a separate instrument, the defendant must, in his plea of general performance, set out such in- strument and the covenants it con- tains : and in such case it is not suf- ficient to plead a performance gener- ally of the condition, though such plea seems to be cured by a replica- tion ; 4 East, MO, 310, n. (b) ; 1 Chit. PL 419; 1 Saiind 58, ?i. 1. 2. The plainlilT may set out the conditions and assign the breaches in the Declaration, as in the last prece- dent. This course is the most sim- ple, and is generally adopted in prac- tice, especially when it is expected that the defendant will sufler judg- ment by default. For in this case the evidence of the plaintiff is often materially diminished, as the allega- tions in the declaration are not put in issue ; 1 Saiind. 58, (a) ; 3 C. & P. 608; 1 Esp. Rep. 157; 2 Chitt Arch. 605, 606. In suits on Official Bonds, an assignment of breaches in the declaration is held necessary ; 6 Ohio Rep. 150. But the plaintifij it seems, may assign breaches after a judg- ment, where it is taken by default, or, on confession, or, demurrer ; Swanks Stat. 660, § 59. See Scire Facias, No. 5. For the mode of proceeding in suggesting breaches upon the record, and upon Judgment on Demurrer, and Default, See post.. Judgments in Debt, No. 9, 10, 11, 12. DEBT. 199 Declarations. No. 9. On a Bond to perform Covenants in another Indenture. [Proceed as in No. 8, Ante. 197, to the (**) — And the said A. B. says that the said writing obhgatory was made with a condition thereunder written, that if, etc. [Set out the Condition verbatim.] And the said A. B. further says that by the said indenture, in the condition of the said writing obhgatory mentioned, \\4liich the said A. B. now brings into Court here, it was covenanted and agreed, &c. [Here set out the covenants tvhich have been broken, and assign the breaches thereon as in Covenant, Post ; and Conclude as in No. 8, Ante. 198.J No. 10. Debt on Judgment.^ [Proceed as in No. 1, Ante. 192, to the (*) — The said A. B. by the consideration of the Court of — held within and for the County of — and State of — on the — day of — at the — term of said Court, A. D. — recovered Judgment against the said C. D. for tlie sum of — dollars debt, or, damages, and — dollars costs of suit, as by the record thereof now remaining in said Court appears,"" and which said judgment is in full force, and not reversed, annulled or satisfied : And the said A. B. avers, that though often requested, the said C. D. hath never paid the said Judgment nor any part thereof : To the damage of the said A. B. — dollars [« sum sufficient to cover interest, &,c.] and thereupon, &.c. [Conclude as in No. 1, Ante. 19-2.] No. 1 1 . Against Stockholder's in an unauthorized Banking Association : 14 Ohio Rep., 127. [Commence as m No. 1, Ante. 192,] For that whereas heretofore, to wit, on the 6th day of April, 1839, the defendants were stockhold- (a) For the nature and effects of Great care is necessary in setting- Judgments, See Judgments in As- forth the particulars of a Judgment ; swnpsit, Ante. 163, note (a), and for where there was a judgment for Summons in Debt, Ante. 189, note jS288, 0.s. 0^/. and debt was brought (a), for £288, omitting the penny, it was (b) This averment is proper when held to be a fatal variance, and not to the suit is brought in the same Covirt be cured by a remittiir of the penny, which rendered the judgment, but if for a remittur must be before Judg- the action be founded on a Judgment ment ; 2 Str., 1171 ; 4 Wend., 207: of another Court, say, " a copy See 4 Ohio Rep., 397. A variance whereof, duly authenticated, the said in the date of the Judgment is fatal ; A. B. now here in Court produces." Wright, 430. 200 DEBT. Declarations. ers, shareholders and partners in a certain institution, bank and moneyed association, not incorporated as a bank by any law of the State of Ohio, nor authorized by any law of the State to lend money or otherwise act as a bank, which association was by them styled the Orphans' Institute Bank, otherwise called the Stark County Orphan Institute's Bank ; and afterwards, to wit, on the 6th day of April, 1839, at said County, the said unincorporated bank did, by their agents and officers, (naming them,) issue certain notes, bills, contracts and checks, calculated and intended to pass and circulate by delivery, to a large amount, to wit, to the amount of tliirty thousand dollars ; and, being thus associated, and having thus issued their notes, bills, contracts and checks, the defendants issued their certain other bil', called a certificate of deposit, which is as follows: " Dolls. 212, Or- phans' Institute Bank, Canal Fulton, April 6th, 1839. This certi- fies that Messrs. Kepler and Caprans have, for themselves, deposited in this office two hundred and twelve dollars, to be paid to their order on return of this certificate. R. Hubbell, Junior, Treasurer." By reason of which, the defendants became, and were liable to pay to the plaintiffs said sum of ,^'212, above demanded, when thereunto requested, and in consideration of the premises, the defendants promised to pay, &c. Second Count. — And for that whereas, heretofore, to wit, on said 6th day of April, 1839, at said County of Stark, the said defendants were indebted to the plaintift's in the sum of two hundred and twelve dollars ; for so much money before that time had been received by the defendants, to and for the use of the plaintift's ; and being so indebted, in consideration thereof, afterwards promised, &c. Yet the defendants, although often requested so to do, have not paid said sums above demanded, nor any part of them, but have therein wholly failed, to the damage, &c. No. 12. By Supervisor for obstructing Highway: .5 Ohio Rep., 269.'' James Hay was summoned to answer unto Ilezekiah Bittle, Super- visor of Highways in Road District No. 20, in and for tiie township (a) For Forms of Commencement joining land has a presumptive right — Description of Parties, &c., See to the soil of the Highway, but this Common Counts in Assumpsit, Ante, presumption only arises where the :if) : Also Declarations in Assumpsit original dedication of the road can- on Promissory Notes, Jlnte. 40. For not be shown ; 3 Eufr. Com. Law a declaration in a hkc Case, See 12 Hep., 157. A way of necessity is Ohio Rep., .527. The owner of ad- limited by the necessity which crea- DEBT. 201 Declarations. of Columbia, Hamilton county and State of Ohio, in a plea of debt, and thereupon the said plaintiff, by — his attorney, complains for that the said defendants, heretofore, to wit, on the first day of March, in the year 1829, at the township of Columbia, in the county of Ham- ilton aforesaid, and within the limits of the said district No. 20, obstructed a certain public highway in said district No. 20, in the township and county aforesaid, by then and there unlawfully erecting and placing a wooden fence in and upon said public highway to the hinderance and inconvenience of travellers, contrary to the form of the Statute of the State of Ohio, in such case made and provided, entitled an act for the opening and regulating roads and highways ; whereby and by force of said act he, the defendant, hath forfeited and become liable to pay to the said plaintiff a sum not exceeding ten dollars nor less than two dollars, and an action hath accrued to the said plaintiff" to have and recover the same accordingly ; of all which said defendant hath had due notice. Yet, though often re- quested, the said defendant hath not paid to the said plaintiff' nor to any other person either of the said sums or any other sum, between said sums of two and ten dollars aforesaid ; wherefore he sues, &c. No. 13. For Penalty for driving a Horse and Buggy on the Tow Path of Canal : 14 Ohio Rep., 468.^ The State of Ohio by — her Att'y complains of the defendant, Thomas W. White, in a plea of debt, for that whereas the said de- fendant heretofore, to wit, on the eleventh day of April, A. D. 1842, at the County aforesaid, not being occupied, engaged or employed in the conveyance of articles of any kind or description whatsoever, in order to their transportation on the Hocking Valley Canal, did, on the day and year last aforesaid, to wit, at the County aforesaid, enter upon the towing path of said Hocking Valley Canal, and drove a horse and buggy thereon, contrary to the form of the Statute in such cases made and provided ; By means whereof the said plaintiff in fact saith ted it — It ceases if at any time the ing a county road 40 feet wide is er- party can approach the place over roneous — The Law requires it to be his own land ; 9 Eng. Com. Law 60 feet ; 3 Ohio Rep. 383. For Bep., 324. If a man opens his land, other cases in Ohio, See Wilcox's and the public pass over it for a few Digest, 303. years, This will be considered a ded- ication ; 24 Eng. Com. Law Bep., (a) For Forms of Commencement, 406., 409, note (a), where the cases Description of Parties, &c. : See are collected: See 11 East. 375, Common Counts in Assumpsit, Ante, note (a) ; 1 Sug. FencZ., 32, note (1); 36: Also Declarations in Assumpsit 19 Wend., 507. An order for open- on Promissory Notes, ^nfe. 46. 26 202 DEBT. Declarations. that the said defendant hath beconne hable to pay to the plaintiff the sum of five dollars, the statutory penalty thereto annexed, and that an action hath accrued to the plaintiff to demand and have the sum aforesaid of and from the said defendant when he the said de- fendant should" be thereunto afterwards requested to pay the same ; and the said plaintiff in fact saith that the said defendant, although often requested so to do, hath not paid to the plaintiff the said sum of five dollars or any part thereof, but to pay the same hath hitherto wholly neglected and refused and still doth neglect and refuse, to the damage of the plaintift' of twenty dollars, and therefore suit is brought, &c. No. 14. Against Clerk of Common Pleas for unlawfully issuing License to marry a Female under 18 years old ; 14 Ohio Rep. l."" John Kirby complains of Jabez B. Larwill in a plea of Debt, for that whereas hereretofore, to wit : on the 5th day of August, A. D. 1842, at Bucyrus, in the said County of Crawford, the said Jabez B. Larwill, then being Clerk of the Court of Common Pleas within and for the said County of Crawford, did then and there as such Clerk, issue a marriage license, signed by the said Jabez B. Larwill as Clerk of said Court, and having the seal of said Court thereto affixed ; by which said license, any person legally authorized to solemnize marria- ges within said County of Crawford, was authorized, licensed, and permitted to join in the holy bands of matrimony one Jolin Shields and one Ruth Kirby, the daughter of the said John Kirby, she, the said Ruth Kirby, then and there being a minor under the age of eighteen years, and then and there being the servant of the said John Kirby ; and she the said Ruth Kirby then and there not being a resident within the said County of Crawford, but on the contrary thereof, she the said Ruth Kirby, then being a resident of the County of Marion, in the said State of Ohio, contrary to the form of the Statute in such case made and provided. Whereby and by force of the Statute the said defendant then being Clerk of the said Court as aforesaid, for- feited and became liable to pay for his said offence to the said plain- tiff, being the party thereby aggrieved, the sum of one thousand dol- lars : and thereby and by force of the said Statute an action hath ac- crued to the said plaintiff, to demand and have of and from the said defendant the said sum of one thousand dollars so forfeited as afore- said. (a) For Forms of Commencement, 36: Also, Declarations in Assump- Description of Parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 203 Declarations. And whereas, heretofore, to wit : on the said 5th day of August, A. D. 1842, at Bucyrus, aforesaid, the said defendant then being Clerk of the Court of Common Pleas within and for the said County of Crawford, did then and there, as such Clerk, issue a marriage li- cense, authorizing and permitting any person legally authorized to solemnize marriages in said County of Crawford, to join in the holy bands of matrimony, John Shields and Ruth Kirby, she, the said Ruth, then and there being a minor, daughter of the said plaintiff, under the age of eighteen years, and not having had a former hus- band, and she, the said Ruth, then residing in the County of Marion in the State of Ohio, and not within the said County of Crawford, contrary to the form of the Statute in such case made and provided. Whereby and by force of the said Statute, the said defendant then being Clerk of the said Court as aforesaid, forfeited and became lia- ble to pay for his said offence to the said plaintiff, being the party thereby aggrieved, a sum not exceeding one thousand dollars : and thereby and by force of the said Statute an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum of one thousand dollars. And whereas, heretofore, to wit: on the said -Sth day of August, A. D. 1842, at Bucyrus aforesaid, the said defendant then being Clerk of the said Court of Common Pleas within and for the said County of Crawford, did then and there, as such Clerk, sign and issue a marriage license, with the seal of said Court thereto, then and there affixed by the said defendant. Clerk as aforesaid, and did thereby then and there license and permit any person legally authorized to solem- nize marriages in said County of Crawford, to join in the bands of matrimony one John Shields and one Ruth Kirby, she the said Ruth Kirby, then being a daughter of the said John Kirby, under the age of eighteen years, and not having had a former husband, and the consent of the said plaintiff to the marriage of the said John Shields with the said Ruth Kirby then and there not having been personally given before the said defendant, then being Clerk of the said Court as aforesaid, and the consent of the said plaintiff to the said marriage then and there not having been certified under the hand of the said plaintiff, attested by two witnesses ; and no such witness appearing then and there before the said defendant. Clerk of the said Court, as aforesaid, and making oath or affirmation that such witness saw said plaintiff subscribe such certificate, or heard him acknowledge the same — contrary to the form of the Statute in such case made and provided. Whereby and by force of the said Statute, the said de- fendant then being Clerk of the said Court as aforesaid, forfeited and became hable to pay for his said offence to the said plaintiff, being the party thereby aggrieved, the sum of one thousand dollars ; and thereby and by force of the said Statute an action hath accrued to the said plaintiff to demand and have of and from the said defen- 204 DEBT. Declarations. dant the said sum of one thousand dollars so forfeited as aforesaid. And whereas, heretofore, to wit : on the said 5th day of August, A. D. 1842, at Bucyrus aforesaid, the said defendant then being Clerk of the said Court of Common Pleas within and for the said County of Crawford, did then and there, as such Clerk, issue a mar- riage license authorizing and permitting the marriage of one John Shields to and with one Ruth Kirby, she the said Ruth Kirby then being the daughter of the said plaintiff, and then being a minor under the age of eighteen years, and she the said R-uth not having had a former husband, and the consent of the said plaintiff to the said marriage of the said John Shields with the said Ruth Kirby then and there not having been personally given before the said defendant, then being Clerk of the said Court as aforesaid, and the consent of the said plaintiff to the said marriage not having been then and there certified under the hand of the said plaintiff, and attested by two witnesses : contrary to the form of the Statute in such case made and provided. Whereby and by force of the said Statute, the said de- fendant then being Clerk of the said Court as aforesaid, forfeited and became liable to pay for his said offence to the said plaintiff, being the party thereby aggrieved, a sum not exceeding one thousand dol- lars ; and thereby and by force of the said Statute, an action hath accrued to the said plaintiff to demand and have of and from the said defendent the said sum of one thousand dollars ; yet the said Jabez B. Larwill hath not as yet paid the said sums of money, nor either of them, nor any part thereof to the said John Kirby : To the damage of the said John Kirby of one hundred dollars, and tiiereup- on he brings his suit, &c. No. 15. Adminish^at or de honk non against Sureties of a for- mer Administrator ; 5 Ohio Rep. 200.'' R. R., J. M. and G. W., defendants in this suit, were summoned to answer unto the Treasurer of F. County, plaintiff in this suit^ for the use of G. R., as administrator de bonis non of the estate of J. D., deceased, of a plea of debt. Whereupon said plaintiff, by — his Attorney, complains of the said defendants, for that whereas said de- fendants on the eighteenth day of December, in the year of our Lord one thousand eight hundred and twenty-four, at said County, by their certain writing obligatory sealed with their respective seals, and to the Court here shown, the date whereof is the same day and (a) For Forms of Commencement, 36: Also, Declarations in Assump- Description of parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 205 Declarations. year aforesaid, acknowledged themselves held and bound jointly and severally, to the Treasurer of F. County, in the sum of five hundred dollars, to be paid to said Treasurer : Which said writing obligatory was and is subject to a certain covenant thereunder written, where- by, after reciting to the effect following, to wit : that the above bound R. R. had on that day been appointed by the Court of Common Pleas of F. County, administrator of the estate of J. D., deceased, if said R. R. did and should well and truly perform all the duties en- joined upon him by law as administrator, the said obligation to be void, otherwise in full force and virtue. Yet said plaintiff, in fact, saith that said R. did neglect to settle up said estate of said D. with- in the time allowed him by law. And for assigning a further breach of said condition, said plaintiff avers that a large sum of money, to wit : one hundred and eighty dollars and twenty-three cents, of as- sets of said estate, was by a settlement with said Court, at their Sep- tember Term, A. D. 1828, found to be in the hands of said R. ; and the plaintiff avers that there were then debts due and owing by said estate to the amount of said one hundred and eighty dollars and twenty-three cents, or more, which said R. had neglected to pay in proportion to the amount of said assets in his hands ; wherefore said Court removed said R. as administrator of said estate, and appointed G. R. as administrator de bonis non of said estate of said D. : and said plaintiff avers that said R. since said settlement with said Court, although often requested, has neglected, and still doth neglect and refuse to pay over to said R. or to any other person entitled to said assets, said sum of one hundred and eighty dollars and twenty-three cents so found by the Court to be in his hands as administrator, or any part thereof, contrary to his duty, &c. By reason of which said breaches the said writing obligatory became forfeited, and there- by an action hath accrued to said plaintiff to have of and from said defendants the said sum of five hundred dollars above demanded ; yet said defendants, although often requested, have not as yet, nor hath either of them, paid said five hundred dollars above demanded, or any part of it, to said plaintiff, but so to do have hitherto and still neglect and refuse : To his damage of — dollars, wherefore he sues, &c. [Add Prqfert of Letters of Administi'ation as in No. 6, Ante. 196.] No. 16. Against Water croft by Name; 11 Ohio Rep. 358.*^ Charles W. Simmons, plaintiff, by — his Attorneys, complains of the (a) For Forms of Commencement, 36: Also, Declarations in Assump- Description of Parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. 206 DEBT. Declarations. Canal Boat " Huron," a water craft navigating the waters within said State, in a plea Debt : For that whereas, on the 1 6th day of October, A. D. 1840, the said Canal Boat "Huron" was indebted to the said plaintiff in the sum of seventy dollars for supplies in furnishing and equipping said Canal Boat •' Huron " before that time sold and deliv- ered by said plaintiff to and for the use of said Canal Boat " Huron," at the special instance and request of Horace Stearnes, master thereof, to be paid by said Horace Stearnes, master of said Canal Boat "Huron," on her account to said plaintiff, when he the said Hor- ace Stearnes, master as aforesaid, should be thereunto requested, ■ whereby and by reason of the said sum of money remaining wholly unpaid, an action hath accrued to the plaintiff to demand and receive the same of the defendant ; yet the defendant, by said Horace Stearnes, her master, though often requested so to do, has not paid the sum of twenty dollars above demanded, or any part thereof, to the plaintiff, but to do this has wholly refused and still does refuse. And also for that whereas the said Canal Boat Huron, on the 10th day of October, A. D. 1840, at said County, being a water craft nav- igating the waters within said State, to wit : the waters of the Penn- sylvania and Ohio Canal, within said State of Ohio, was indebted to the plaintiff in the sum of seventy dollars, for goods, groceries and provisions being materials and supplies then and there sold and de- livered by the plaintiff for the said Canal Boat " Huron," in the fur- nishing and equipping the same, and contracted on account of said Canal Boat "Huron," by Horace Stearnes, master of the said Ca- nal Boat "' Huron ;" whereby an action hath accrued to the plain- tiff to demand and have of and from the said defendant the said sum of seventy dollars in this count contained ; yet the said Horace Stearnes, master of said Canal Boat Huron, (although often requested so to do) hath not as yet paid the said sum of seventy dollars in this count mentioned, or any part thereof, to the said plaintiff, nor hath any other person on the behalf of the said defendant paid the same to the said plaintiff ; but to do this hath hitherto wholly refused and still doth refuse ; To the damage of the plaintiff eighty dollars, and therefore he brings suit, &c. No. 17. Against Assignee of Lessee for Rent: 10 Ohio Rep., 209.=^ J. G. was summoned to answer unto T. H. G. of a plea that he render unto him tlie sum of two hundred dollars, which he he owes (a) For Forms of Commencement, on Promissory Notes, ,^nte. 46. Description of Parties, &c., See When action against assignee lies; CommonCountsin AssUiMPSiT, Ante. 14 Ohio Hep. 606. When tenant 36 : Also Declarations in Assumpsit may plead nil hahuit — show the title DEBT. 207 Declarations. to and detains from him : For that whereas heretofore, to wit, on the 12th day of January, 1831, at Monroe County aforesaid, by a certain indenture then and there made between the said plaintiff 5f the one part, and one J. J. W. of the other part, which said indenture, sealed with the seal of the said plaintiff and with the seal of the said J. J. W., now here shown to the Court, the date whereof is the day and year last aforesaid, the said plaintiff for the consideration therein mentioned, did demise unto the said J. J. W. the following described messuage and tenement, to wit, the house of the said plaintiff in Fairview, then occupied by B., and formerly before that time by one C. R., for the term of three years from and after the first day of April then next ensuing : to have and to hold the said premises for the term aforesaid to the said J. J. W., he yielding and paying there- for during the term to the said plaintiff the yearly rent of one hundred dollars, and the taxes which might be charged thereon ; said yearly rent to be paid quarter-yearly, to wit, four equal portions thereof to the said plaintiff in St. Clairsville ; and the taxes to be paid by the said J. J. W., and the receipt therefor to be forwarded to the said plaintiff in the month of December in each year ; for the payment of which said rent and taxes as aforesaid, to the said plaintiff, the said J. J. W. bound himself, his executors, administrators and assigns, as by the said indenture, reference thereto being had, will more fully appear. By virtue of which demise, he the said J. J. W., afterwards, to wit, on the first day of April, 1831, at the county aforesaid, entered into the said demised premises and was possessed thereof thenceforth. And the said plaintiff in fact says, that afterwards, to wit, on the first day of July, 1831, at the county aforesaid, after the making of the said indenture, all the estate and interest of the said J. J. W. in the said demised premises, by assignment then and there legally made, of the landlord expired, &c. ; 9 ^n^. from the evictor ; 3 Marsh., 612: Com. Law Rep., 339 ; 3 do. 328, See 3 /. /. Marsh., 429. So if 167, note. Husband cannot recover there be a judgment of eviction, he on a lease for rent of wife's land ac- may buy in an adverse title for his cruing after her death ; 9 Eng. Com. own benefit ; 1 Dana, 203 ; 5 do. 63 : Law Rep., 339. When forfeitures But not after the demise in the Dec- relieved in Equity, 7 Paige, 350. laration has expired ; lb. To enable Tenant's right to put up new build- a quasi tenant to set up the Statute ings, &c. ; 3 Paige, '2>Q\. Chance- of Limitations against his landlord, ry does not incline much towards re- there must be clear proof of his re- newal of leases ; 1 Br. Ch. Rep., nunciation, and notice of it to his 54. A contract with a tenant to de- landlord 20 years before ; 6 Dana, sert his landlord and attorn to another 425, 428, 436. Action on covenant is corrupt and void ; 1 Marsh. 559. in Lease not executed in form of If plaintiff in ejectment evicts the Law ; 13 Ohio Rep. 43. For other tenant, the landlord is thereby ousted, Cases in Ohio, See Wilcox's Digest, and the tenant may rightfully lease 163, 353. 208 DEBT. Declarations. came to and vested in the said defendant ; wherefore and whereby the said defendant entered into the said demised premises, and became and was possessed thereof, to wit, at the county aforesaid, on the day and year last aforesaid. And although the said plaintiff has in all respects performed all that was to be done and performed by him in the said indenture, yet protesting that the said defendant since the said assignment has not performed all to be so done and performed by him in the said indenture : the said plaintiff in fact says, that after the said assignment, and during the continuance of the said term, and whilst he was so possessed of the said demised premises, to wit, on the 1st day of April, 1834, at the county aforesaid, a large sum of money, to wit, the sum of two hundred dollars of rent aforesaid, for two years of said term ending on the day and year last aforesaid, became due from the said defendant to the said plaintiff, and still is so due and unpaid, contrary to the form of the said indenture, by the said J. J. W. in that behalf as aforesaid made : whereby an action has accrued to the said plaintiff to have and demand of and from the said defendant the said sum of two hundred dollars last aforesaid, parcel of the first above demanded sum of money. No. 1 8. By One Township against Another for temporary relief afforded a Pauper: 9 Ohio Rep., 76.^ The Trustees of the Township of Henrietta, in said County, plain- tiffs, complain of the Trustees of the township of Brownhelm, in the county aforesaid, in a Plea that they render unto the plaintiffs the sum of three hundred dollars which they owe to and unjustly detain from the plaintiffs. For that whereas one S. B., on the 12th day of August, 1836, who was then and still is an inhabitant of the said township of Brownhelm, and had then and still has a legal settlement in said township of Brownhelm, became and was chargeable in tiie township of Henrietta aforesaid, and by reason of the state of health of the said S. B., he was unable to be removed from said township of Henrietta to the said township of Brownhelm, for and during the period of five months, during which said period of time the overseers of the Poor in said township of Henrietta, according to the Statute in such cases made and provided, afforded temporary relief and sup- port to the said S. B., and thereby the said township of Henrietta incurred large expense in lodging, keeping, taking care of and pro- curing medical aid for the said S. B., to wit, expenses to the amount (a) For Forms of Commencement, 36: Also Declarations in Assumpsit Description of Parties, &c., See on Promissory Notes, .dnte. 40. Common Counts in Assumpsit, Ante. DEBT. 209 Declarations. of three hundred dollars at and before the time the said S. B. was able to be removed to the township of Brownhelm aforesaid, and as soon as the state of the said S. B.'s health would permit, the said overseers of the Poor of the said township of Henrietta, caused the said S. B. to be removed to the township of Brownhelm aforesaid, where he was last legally settled ; whereby an action hath accrued to the said plaintiffs to have and demand of the said defendants the said sum of three hundred dollars, parcel of the said sum above de- manded : yet the said defendants, tiiough often requested so to do, hath not as yet paid the said sum of three hundred dollars above demanded, or any part thereof to the said plaintiffs ; but they, to do the same, have hitherto wholly refused, and still do refuse : To the damage of the said plaintiffs of three hundred dollars, and therefore they bring suit, &,c. No. 1 9. Against Stockholders in a Turnpike for Instalments : 13 Ohio Rep., 120.^ N. W. was summoned to answer the Muskingum Valley Turnpike Company of a plea of Debt, &,c. : and thereupon the said plaintiffs, by — their Attorney, complain ; For that whereas, after the passing of an act of the General Assembly of the State of Ohio, entitled " An Act to incorporate the Muskingum Valley Turnpike Company," passed on the 16th day of February, A. D. 1838; and of an act of the said General Assembly entitled " An Act to provide for the reg- ulation of Turnpike Companies," passed Juanuary 7th, 1817 ; by which said first mentioned act a Company was duly incorporated and thereafter duly organized under the (said) name of " the Muskingum Valley Turnpike Company," for the purpose of constructing a turn- pike from Zanesville in the county of Muskingum, by Duncan's Falls, McConnelsville and Waterford, to Marietta, in Washington county; with all the rights, powers, and privileges, and subject to all the re- strictions defined in the said last mentioned act, and the several acts amendatory thereto, except so far as the same might be modified or changed by the special provisions of the said first mentioned and in part recited act ; and before the making of the said call for an instal- ment hereinafter mentioned, to wit, on the — day of — , A. D. 1839, at the county of Washington aforesaid, the said W., by a certain in- strument of writing, to wit, a book of subscriptions to the stock of said Company, as one of the subscribers thereto and stockholders therein, (a) For Forms of Commencement, 36 : Also Declarations in Assumpsit Description of Parties, &c. : See on Promissory Notes, Ante. 46. Common Counts in Assuaipsix, Ante. 27 210 DEBT. Declarations. subscribed eighty shares of twenty-five dollars each, amounting to the sum of .'^'2000 for the purposes of the said incorporation, and under and pursuant to the provisions of the said act incorporating said Company and the said " Act to ])rovide for the regulation of Turnpike Companies," of 7th January, 1817 ; and whereas by certain provisions of the said last mentioned act of Assembly, the President and Directors of the said Company are authorized and empowered, in all cases, to manage the concerns of the same ; and it is thereby among other things, further provided in the second section thereof, that sixty day's notice should be given, in some public paper in gen- eral circulation, printed on or nearest to the route of such intended Turnpike road, of the time and place or places of paying in any in- stalment (upon the capital stock) subject to the instalment paid at the time of subscribing; and that if any stockholder in any such Turn- pike Company, that is to say any Turnpike Company incorporated under and subject to the provisions of the said act, last mentioned, should neglect or refuse to pay any instalment after sixty day's notice of the time and place of payment being given, in the manner provi- ded in the second Section of the said act, and hereinbefore recited, he should, for every month the same should remain unpaid, forfeit and pay to said Company five per cent, on the amount of such instal- ment ; and whereas afterwards, to wit, on the 7th day of April, A. D. 1840, at Marietta, in the county aforesaid, the President and Directors of the said Muskingum Valley Turnpike Company, by virtue of the said act incorporating the said Company and of the rights, and powers, and privileges vested in the said Company and in them by the said " Act to provide for the regulation of Turnpike Companies," passed (7th January 1817,) did duly make a call for the payment of an instalment, that is to say, an instalment of ten per cent, upon the capital stock subscribed in and to the funds and stock of the Company ; being the fourth instalment required and called for upon the said capital stock ; by a resolution of the said President and Directors, duly made and passed on the said 7tii day of April, A. D. 1840, directing and requiring tlie Secretary of the said Company to call for such 4th instalment of ten per cent, upon the capital stock of said Company ; and by causing notice, for at least sixty days, of the time and place of payment of the said instal- ment, to be given in the Marietta Intelligencer, a public paper in general circulation, printed at Marietta, Ohio, on the route of the said Turnpike road intended to be constructed by the said Company, notifying and requiring the payment of the said 4th instalment in the capital stock of the said Company to be made to the Treasurer thereof, on or before the 1st day of July thereafter, that is to say, the 1st day of July, 1840; and did then and there, to wit, on the said 7th day of April, 1840, at Marietta, in the county aforesaid, duly require the said N. W. to pay the sum of ^'^OO, being ten per DEBT. 211 Declarations. ♦• cent, upon the said 80 shares of stock so subscribed and then held by the said N. W. in the capital stock of the said Company, to the Treasurer of the said Company, on or before the said first day of July, 1840; and the said plaintiffs further say that the said call of and for the said 4th instalment was not made in less than sixty days from the day of payment of the next preceding instalment required by the said President and Directors upon the stock of said Company ; of all which said promises the said N. W. afterwards, to wit, on the said 7th day of April, A. D. 1840, at Marietta, in the county aforesaid, had notice ; according to the directions of the said " Act to provide for the regulation of Turnpike Companies : " Yet tiie said N. W. did did not nor would pay the said instalment and sum of ^"200 to the Treasurer of the said Company on the said first day of July, 1840, or at any time before or since ; but has wholly neglected and refused so to do ; and the same has remained in arrear and unpaid one month and more after the said first day of July and before the commence- ment of this suit : whereby an action hath accrued to the said plain- tiffs to demand and have of and from the said N. W., the said sum of ^'200, and 5 per cent, penalty thereon, for the said montii that the same has remained in arrear, as aforesaid, according to the terms and provisions of the said '' Act to provide for ^e regulation of Turnpike Companies," being the sum of ten dollars upon the said instalment. And whereas, also, the said N. W., afterwards, to wit, on the 1st day of August, 1840, at the county aforesaid, was indebted to the said plaintiffs in the sum of ^200 for money due and payable from the said defendant for a certain call, or sum, to wit, 10 per cent, upon the amount of the capital stock subscribed for and held by the said defendant in the capital stock of the said Company, being 80 shares of ^'25 each, and amounting, for said instalment, to the said sum of ^200, duly called for and required by the President and Directors of the said Company for putting in execution the powers and authorities by the first mentioned act given and granted to the said Company, at a certain time then elapsed, to wit, the 1st day of July, 1840; upon and in respect of the said sum, to wit, ,^'2000 in shares of ^25 each, which the said N. W. had before that time subscribed and agreed to pay to and of the capital stock of the said Company, for the purposes in said act mentioned ; and, also, in the sum of ^10 for 5 per cent, penalty upon the said sum of ,'$200, and by reason of tlie same hav- ing been and remained in arrear and unpaid to the Treasurer of the said Company for the space of one month after the same instalment was and became due and payable ; and by reason thereof an action hath accrued to the said Company to demand and have of and from the said defendant the sum of ,'3!200: And the said sum of .'^lO for and by reason of the said penalty thereon : Yet the said N. W., although often requested so to do, has not paid the said sums of 212 DEBT. Declarations. money, above demanded, or any of them, or any part thereof, to the said plaintiti's, but to pay the same has liitherto wholly neglected and refused and still doth refuse. To the damage of the said plaintiffs, of two hundred dollars, and therefore they bring their suit, &c. No. 20. On Commissioner of Insolvent' s Bond ; 3 Ohio Rep. 507.* F. S., G. D. and M. G. were summoned to answer unto the State of Ohio, which sues for the use of A. S. in a plea that they ren- der unto the said State the sum of two thousand dollars which to the said State they owe, from it, unjustly detain, etc. For that the said F. S., G. D. andM. G. on the 5th day of October, A. D. 1824, at the County aforesaid, by their writing obligatory sealed with their seals, and to the Court here now shown, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound to the said State of Ohiof in the said sum of two thousand dollars above demanded, to be paid to the said State of Ohio when- ever they should be thereunto afterwards requested. And the said State of Ohio which sues for the use of the said A. S. as aforesaid, according to the Statute in such case made and pro- vided, says that the said writing obligatory was and is subject to a certain condition thereunto written, whereby after reciting to the ef- fect following, to wit : (that at the October term, A. D. 1824, of the Court of Common Pleas for said County of W. the Court did on the said fifth day of October, the day of the date of said writing obliga- tory, appoint the said F. S. Commissioner of Insolvencies in the said County of W. for the term of three years then next ensuing, and un- til his successor in office should be appointed and qualified,) it is pro- vided that said F. S. should faithfully discharge the duties of Com- missioner of Insolvents in said County of W. agreeably to the act of Assembly of said State, entitled " an act for the relief of insolvent debtors," then the said writing obligatory to be void, else to remain in full force and effect. And the said plaintiff", for breach of the condition of said writing obligatory in fact saith, that after the date of the said writing obliga- tory and while the said F. S. held the said office of Commissioner of (a) For Forms of Commencement, Rule of Court, in the Courts of the Description of Parties, &c. : See United States ; 9 Pet. 359 : M Pet. Common Counts in Assumpsit, Ante. 67. Evils of the Bankrupt System 3G: Also, Declarations in Assump- in England; ]^es. 1. For Pleas SIT on Promissory Notes, Ante. 40. in Bankruptcy, See Picas in Debt, Construction of the old Bankrupt Post. For Cases decided in Ohio, Act of Congress ; 1 Pet. 217. In- See Wilcox's Digest, 321. solvent Law of Ohio is available, by DEBT. 213 Declarations. Insolvents, to wit: on the 8th day of October, 1824, at the County aforesaid, one G. T. apphed to the Court of Common Pleas for said County of W. for the benefit of the act of the General Assem- bly, entitled " an act for the relief of insolvent debtors," where- upon a certificate of insolvency was then and there in due form of law granted to the said G. he having made to the said F. as such Commissioner, an assignment of his property agreeably to the requi- sitions of the Statute aforesaid. And the said plaintifii" further in fact saith that although after the property of the said G. T. came to the hands of the said S. as Commissioner, to wit : on the 16th day of December, A. D. 1824, he the said S,, proceeded to sell property of the said G. so assigned to him, to a large amount, to wit : to the amount of five thousand dollars, yet the said S. wholly neglected af- ter such sale to call a meeting of the creditors of the said G. by giv- ing notice by advertisement as tiie law directs. To the great damage of the said A. S. who the said State avers was a creditor of the said G. at the time of the appointment of the said S. to the ofRce afore- said, and at the time of the application of said G. for the benefit of the act aforesaid, and ever since hath been the creditor of the said G. who then was and still is indebted to the said A. in the sum of $'130 51, for money before that time paid, laid out and expended for said G. and at his special instance and request. And the said State, for further breach of the condition of said writing obligatory, saith, tiiat after the assignment by the said G. T. of his property as afore- said to the said S. as Commissioner as aforesaid, he the said S. af- terwards, to wit: on the 28th day of March, A. D. 1826, at the County aforesaid, as such Commissioner, received notes and money to a large amount, to wit : to the amount of two thousand dollars, arising from the sale of the property of the said G. ; yet the said S., though often requested by the said A. did not at the expiration, six months thereafter, nor at any time since, make a distribution and pay- ment thereof to the creditors of the said G. agreeably to the provis- ions of the Statute in such case made and provided; but the same or any part thereof, to distribute and pay the said S, hath hitherto wholly refused and still doth refuse, and so the said State of Ohio saith that the said A. for whose use this is brought, hath been and is greatly damnified by the neglect and refusal of the said S. so to pay and distribute, he the said A. being as aforesaid a creditor of the said G. for the said sum of one hundred and thirty dollars and fifty-one cents ; by means whereof, an action hath accrued to the said State which sues for the use of the said A. to demand and have of and from the said defendants the said sum of two thousand dollars above demanded. Nevertheless the said defendants, though often request- ed so to do, have not, nor hath either of them, paid the said sum of two thousand dollars to the said State of Ohio, or any part thereof; but the same to pay, they and each of them have hitherto wholly re- 214 DEBT. Declarations. fused, and still do refuse so to do : To the damage of the said State of Oiiio, which sues for the use of the said A. S., fifty dollars, and therefore the said State sues, &-c. No. 21. On Bond for Jail Limits ; 10 Ohio Rep. 392. Joel B. Burnett, Joy H. Pendleton, Asahcl Tyler, and Benjamin F. Hopkins, were summoned to answer unto Zenas Kent in a plea of Debt, for that whereas the said Zenas Kent, by the consideration and judgment of the Court of Common Pleas of the County of Portage aforesaid, at a term thereof begun and liolden in the town of Raven- na, on the twenty-eighth day of February, in the year of our liOrd one thousand eight hundred and thirty-nine, obtained a decree against the said Joel B. Burnett and Joy H. Pendleton for the sum of nine thousand two hundred and forty-six dollars and sixty eight cents, and costs of suit, taxed at eleven dollars and ninety-four cents, and upon ^yhicll judgment there has been an increase of costs in the sum of eighteen dollars and five cents ; making in all the sum of nine thou- sand two hundred and seventy-six dollars and sixty-seven cents. And whereas a writ of Capias ad satisfaciendum was issued for the same, (except a credit of four thousand one hundred and sixty dollars paid on said decree,) together with such further costs as might accrue ; upon which writ of execution the said Joel B. Burnett and the said Joy H. Pendleton, by the Sheritf of the said County of Portage were arrested and committed to the Jail of said County, in said town of Ravenna. And the said Joel B. Burnett and the said Joy H. Pen- dleton, so being in the custody of the jailor of said County of Por- tage, did afterwards, to wit: on the sixth day of June, in the year of our Lord one thousand eight hundred and thirty-nine, and at Raven- na aforesaid, together with the above named Asahel Tyler and Ben- jamin F. Hopkins, by a certain bond of the date last aforesaid (and to the Court now here shown,) acknowledge themselves to be held and firmly bound unto the said Zenas Kent in the sum of ten thousand two hundred and thirty-three dollars and thirty-four cents, to bo paid to the said Zenas Kent or his certain Attorney, Executors, Adminis- trators or Assigns, when they the said defendants should be thereun- to afterwards requested; subject to a certain condition thereunder written : tliat if the said Joel B. Burnett and the said Joy H. Peiidle- ton should, from the time of executing the aforesaid bond, continue true prisoners in the custody of tiie jailor and within the limits of the (a) For Forms of Commencement, 3G : Also, Declarations in Assump- Descriplion of Parlies, &c. - See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 215 Declarations. prison bounds for Portage County aforesaid, and should not depart without the exterior bounds of the same until they should be legally discharged, without committing any manner of escape, then the above obligation shall be void, otherwise the same to remain in full forte and virtue. And the said plaintiff says that, afterwards, on the day and year last aforesaid, the said Joel B. Burnett and the said Joy H. Pen- dleton, at the place last aforesaid, did escape and go at large out of the limits aforesaid, without being legally discharged ; by reason where- of an action hath accrued to the said Zenas Kent, to demand and have of and from the said defendants the said sum of ten thousand two hundred and thirty-three dollars and thirty-four cents. Yet the said defendants, though often requested so to do, have not, nor hatli either of them, paid to the said Zenas Kent the said sum of ten thou- sand two hundred and thirty-three dollars and thirty-four cents, or any part thereof, but they to do this have hitherto wholly refused and still do refuse so to do : To the damage of the said Zenas Kent ten thousand dollars, and therefore he brings suit, &c. No. 22. On Appeal Bond; 15 Ohio Rep. 471.^ Daniel Shehy and William Smith complain of Walter Sigler and Loren Sigler (the Sheriff of said County having returned not found as to Robert Russell, against whom process in this cause was also is- sued,) in a plea of Debt ; For that whereas, the said Walter Sigler, Robert Russell and Loren Sigler, on the fourteenth day of June, in the year of our Lord one thousand eight hundred and forty-one, at Warren, in Trumbull County aforesaid, made their certain writing- obligatory, sealed with their seals, (and now to the Court here shown,) and then and there delivered the same to the said Daniel Shehy and William Smith, whereby the said Walter Sigler, as principal, and the said Robert Russell and Loren Sigler as sureties, acknowledged them- selves to be held and firmly bound unto the said Daniel Shehy and William Smith in the penal sum of five hundred dollars, to be paid to the said Daniel Shehy and William Smith ; which said writing obligatory was and is subject to a certain condition thereunder writ- ten, whereby it is provided, " That whereas the Court of Common Pleas within and for the County of Trumbull, State of Ohio, at the June Term thereof, A. D. 1841, in a certain suit in chancery, wherein Walter Sigler was complainant, and Daniel Shehy and ^William Smith were respondents, made and entered upon their journal the (a) For Forms of Commencement, 36: Also, Declarations in Assitmp- Description of Parties, &c. : See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. 216 DEBT. Declarations. following decree, to wit : ' This cause came on to be heard upon the bill, answers of defendants, replications thereto, exliibits and testimo- ny and Master's report and exceptions thereto, and was argued by counsel ; upon consideration whereof the Court are of opinion that the equity of the case is with the respondents. And the Court do therefore order, adjudge and decree that said bill be dismissed with- out prejudice, and that each party pay one-half the costs, taxed at one hundred and fifty-two dollars thirty-four and one-half cents, to be paid within thirty days from the rising of this Court, and that in default of such payment, execution issue to collect the same as upon execution at law. Both parties give notice of their in- tention to appeal to the next Supreme Court to be held within and for said County ;' from which said decree the said Walter Sigler has appealed to the next Supreme Court of the State of Ohio, to be held within and for said County. Now therefore, if the said Walter Sigler shall pay the full amount of condemnation money in the Su- preme Court, and costs, in case a decree shall be entered therein in favor of the appellee, then this obligation shall be null and void, oth- erwise to remain in full force and virtue in law," as by said writing obligatory here shown to the Court more fully appears, from which said decree of the Court of Common Pleas the said Walter Sigler appealed to the next Supreme Court to be held within and for said County, by filing said bond with the Clerk of said Court of Common Pleas, according to the Statute in such case made and provided ; but the said plaintiffs aver and say that their costs taxed in said suit amount to one hundred thirty-seven dollars and twenty-eight cents, including interest up to June first, A. D. 1845, and the costs of the said Walter Sigler are taxed at sixty-five dollars and ninety cents, in- cluding interest up to June first, A. D. 1845, as appears by the Clerk's docket. And although afterwards, to wit : on the twenty-sixth day of August, A. D. 1844, in the September Term of said Supreme Court for said Trumbull County, the said Daniel Shehy and William Smith, by the consideration and decree of said Court, recovered their costs taxed in said suit at thirty-six dollars and thirty-six cents, which, together with increase costs and interest, amount to the sum of thir- ty-nine dollars and ninety-six cents, as by the record and proceedings thereof still remaining in the said Court, and here adduced to this Court, more fully appears, to wit : at Trumbull County aforesaid ; yet the said Walter Sigler hath not paid the said plaintiffs the said sums of money, or either of them, or any part thereof, according to the form and effect of the said bond or writing obligatory, and as well the said writing obligatory as the said decree still remains in full force and effect and in no wise satisfied vacated or discharged, and the said plaintiffs have caused execution to be issued on said judg- ment, and said execution lias been returned wholly unsatisfied for want of property whereon to levy to satisfy the same, before the com- DEBT. 217 Declarations. mencement of this suit, and they have not as yet obtained any exe- cution or satisfaction of said decree ; whereby and according to the force and effect of the said writing obhgatory an action hath accrued to the said plaintiffs to demand and liave of and from the defendants the said sum of five hundred dollars : yet the said defendants (al- though often requested so to do) have not as yet paid the said sum of five hundred dollars, nor has either of them paid the same, or any part thereof: To the damage of the plaintiffs two hundred and fifty dollars, and therefore they bring suit, &,c. And also for that whereas, the said defendants heretofore, to wit : on the fourteenth day of June, in the year of our Lord one thousand eight hundred and forty-one, at Warren, in said Trumbull County, by their certain writing obligatory, commonly called an appeal bond, signed and sealed with their signatures and seals respectively, and now here shown to this Court, the date whereof is a certain day and year aforesaid, acknowledged themselves, the said Walter Sigler as principal, and the said Robert Russell and Loren Sigler as sureties, to be held and firmly bound unto the said plaintiffs in the penal sum of five hundred dollars, to be well and truly paid unto the said plain- tiffs by the said defendants ; which said writing was and is subject to a certain condition thereunder written, whereby, after reciting to the effect following, to wit : that whereas there had been pending in said Court of Common Pleas, on the Chancery side of said Court, a cer- tain suit between the said Walter Sigler as complainant, and the said Daniel Shehy and William Smith as respondents, in which said cause the said Court of Common Pleas, at their June Term thereof, A. D. 1841, rendered a decree in said cause, that said bill be dismissed without prejudice, and that each party pay one-half of the costs, tax- ed at one hundred fifty-two dollars and thirty-four and one-half cents ; from which said decree the said Walter Sigler appealed to the Su- preme Court next to be holden within and for said County ; it is pro- vided and expressed in and by the condition of said bond as follows, to wit : Now therefore, if the said Walter Sigler shall pay the full amount of condemnation money in the Supreme Court, and costs, in case a decree shall be entered therein in favor of the appellees, then this (meaning said) obligation to be void, otherwise to remain in full force and virtue at law, as by the said writing obligatory here shown to said Court more fully appears ; and although afterwards, that is to to say, on the twenty-ninth day of August, at the August term of said Supreme Court, A. D. 1844, held in and for Trumbull County aforesaid, said Court adjudged and decreed, among other things, that the said Walter Sigler pay the costs of said suit, taxed at two hun- dred four dollars and eighty seven cents, which, together with in- crease costs and interest, amount to the sum of two hundred and eighteen dollars and forty-three cents, as by the records and pro- ceedings thereof still remaining in said Supreme Court, and here 28 318 DEBT. Declarations. ready to be adjudged, more luUy appears ; yet the said plaintiffs, in fact, say, that the said WaUer Sigler hath not paid the said sum of money so decreed against him by the said Supreme Court to the said plaintiffs, or to either of them, nor any part tliereof, according to the form and effect of said bond or writing obligatory ; and as well the said bond as the said decree, still remains in full force and effect, in no wise satisfied, vacated or discharged ; and the said plaintiffs have caused execution to be issued on said decree or judgment, and said execution has been returned wiiolly unsatisfied, for want of property whereon to levy to satisfy the same, before the commencement of this suit, and they the said plaintiffs liave not as yet obtained any execu- tion or satisfaction of said judgment or decree ; whereby, and accord- ing to the form and effect of the said writing obligatory, an action hath accrued to the said plaintiffs to demand and have of and from the said defendants the said sum of five hundred dollars ; yet the said defendants, although often requested so to do, have not as yet paid the said sum of five hundred dollars, nor has either of them paid the same, or any part thereof: To the damage of the plaintiffs two hun- dred and fifty dollars, and therefore they bring suit, &c. No. 23. On Constable's Bond for neglecting to levy Execution : 5 Ohio Rep. 136.* Joseph Westenhaver was summoned to answer unto the State of Ohio for the use of Jacob Kline, of a plea of debt, &-c., and there- upon the said plaintiff, by — his attorney, complains for that whereas the said Joseph Westenhaver, heretofore, to wit, on the second day of May, A. D. 1826, at the county aforesaid, together with Simon Decker, Thomas W. Claxton and Jacob W. Coffinberry, made and executed a certain writing obligatory, sealed with their seals, and now shewn to the Court here, the date whereof is the same day and year last afore- said, whereby the said Joseph Westenhaver, Simon Decker, Thomas W. Claxton and Jacob W. Coffinberry, acknowledged themselves to be held and firmly bound to the said plaintiff in the sum of Six Hun- dred Dollars, and firmly bound themselves, their heirs, executors and administrators, severally to the payment thereof, which said writing obligatory was and is subject to a certain condition thereunder writ- ten, to the effect following, that if the said Simon Decker should well, truly and faithfully discharge the duties of Constable for the town- ship of Falls, for the year eighteen hundred and twenty-six, and until (a) For Forms of Commencement, 36 : Also Declarations in Assumpsit Description of Parties, &c. : See on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 219 Declarations. his successor in office should be elected and qualified, then the said writing obligatory should be void. And the said plaintiff in fact saith that after the making the said writing obligatory and whilst the said Simon Decker held the office of Constable, and within a year after the making of said bond, to wit, on the 20th day of May, A. D. 1826, at the township of Falls aforesaid, a certain Writ of Execution came to the said Simon Decker's hands as Constable as aforesaid, to be by him executed according to law commonly called a Fieri Facias, which said Writ of Execution issued upon a judgment before Jacob W. Coffinberry, Esq., a Justice of the Peace for said township of Falls, in favor of the said Jacob Kline, against one John Brown, which said Writ of Execution he the said Simon Decker then and there wilfully and negligently refused and neglected to levy upon property of the said Brown sufficient to satisfy the moneys which by the same he was commanded to make, although he might and could have obtained and levied upon such sufficient property, to wit, at the township aforesaid ; and for a further breach of the condition of the said writing obligatory the said plaintiff saith that heretofore, to wit, on the 20th day of May, A. D. 1826, at the township of Falls aforesaid, the said Jacob Khne recovered a Judgment before the said Jacob W. Coffinberry, a Justice of the Peace, against the said John Brown, for the sum of eighteen dollars debt, forty cents damages, together with costs ; and afterwards, to wit, on the 12th day of .lime, A. D. 1826, and while the said Simon Decker acted as Constable as aforesaid, and within one year from the said date of said writing obligatory, he the said Jacob Kline sued out a certain other Writ of Execution from the Docket of said Justice, upon the said Judgment, which said Execution, on the day and year last aforesaid, at the township of Falls aforesaid, came to the hands of the said Simon Decker as Constable as aforesaid, to be by him executed in due form of law ; and the said Simon Decker, as Constable as aforesaid, afterwards, to wit, on the same day and year last aforesaid, at the township aforesaid, levied the said Writ of Ex- ecution (as he was thereby commanded) upon certain of the goods and chattels of the said John Brown, sufficient to satisfy the same, and then and there continually afterwards wilfully omitted and neg- lected to advertise or offer the same to sale, whereupon the said plain- tiff saith that the said Simon Decker did not well, truly and faithfully discharge the duties of Constable for the township of Falls aforesaid, for the said year 1826. And so the said defendant hath become li- able, &c., to pay the said Jacob Kline his damages sustained by him by reason of the non-performance by the said Simon Decker of his duties as Constable as aforesaid, which said damages are liquidated in amount by a Judgment recovered by the said Jacob against the said Simon, at the October Term, A. D. 1828 of the said Court of Com- mon Pleas for said county of Hocking ; upon which said last men- tioned Judgment an Execution has been issued and returned, Novem- 20 DEBT. Declarations. ber 18th, 1829, no goods, chattels, lands or tenements found whereon to levy. To all which proceedings, Judgments, &lc., the said plain- tiff now refers. By means whereof the said defendant hath become liable to pay to the said plaintiff the said sum of six hundred dollars above demanded ; yet the said defendant hath not as yet paid the said sum of money last mentioned, nor any part thereof, although often requested so to do — to the damage of said plaintiff for the use aforesaid of fifty dollars, and therefore he brings his suit, &c. No. 24. Against Principal and Sureties on County Treasurer's Bond: 10 Ohio Rep., 51.^ S. F., I. W., J. S., M. R., J. B., G. R., T. J. T., J. P., J. W. W. and J. P., were summoned to answer unto the State of Ohio, who sues for the use of the Commissioners of Guernsey County, in the State of Ohio, of a plea that they render unto the plaintiff the sum of eighteen thousand dollars which they owe to and unjustly detain from the plaintiff, the summons having been returned in said case that as to the said H. R. he was not found, and thereupon the said plaintiff by M. G., her attorney, complains of the said defendants, for that whereas the said defendants wiih the said H. R., heretofore, to wit, on the first day of June in the year of our Lord one thousand eight hundred and thirty-eight, at Guernsey county aforesaid, by their certain writing obligatory of that date, which is now here shown to the Court, together with a copy thereof, duly certified by the Auditor of said county, which said writing obligatory is sealed with the seals, and signed by the hands of the said defendants and the said R., the same being signed by the said F. by the name and style of Saml. F., by the said S. by the name and style of J. S., by the said R. by the name and style of M. R., and by the said T. by the name and style of T. J. T., acknowledged themselves to be held and firmly bound unto the plaintiff, jointly and severally, in the sum of eighteen thou- sand dollars, to the payment of which sum to the plaintiff the said defendants and the said R. therein and thereby then and there jointly and severally bound themselves, their heirs, and executors, and ad- ministrators, which writing obligatory is and was subject to a condi- tion thereunder written whereby, after reciting that the said R. had been duly elected Treasurer of said county of Guernsey for the county of Guernsey for the term of two years from the first Monday of June, one thousand eight hundred and thirty-eight, it is provided (a) For Forms of Commencement, 30 : Also, Declarations in Assumpsit Description of Parties, &c. : See on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 221 Declarations. that if the said R., Treasurer as aforesaid, should faithfully and im- partially discharge all the duties of his said office agreeably to law, the said obligation was to be void and of none effect, otherwise to be and remain in full force and virtue in law. And the said plaintiff" avers that at the time of the said execution of said writing obligatory the said R. had been duly elected Treasurer of said county of Guern- sey, for the Term of two years from the first Monday of June, 1838, to wit, on the second Tuesday of October, 1837, at Guernsey county aforesaid, and that four of said defendants, to wit, S. F., I. W., J. S. and M. R., at the time said writing obligatory was executed as aforesaid, to wit, at Guernsey aforesaid were freeholders, and that after the execution of said writing obligatory as aforesaid, to wit, on the 5th day of June, A. D. 1838, at Guernsey county aforesaid, the Commissioners of said county of Guernsey accepted and approved of said writing obligatory, and said defendants, as the securities of said R. as Treasurer aforesaid, and that the said R. on the day and year last aforesaid, at Guernsey county aforesaid, took an oath that he would faithfully discharge all the daties of the office of Treasurer of said county of Guernsey, and that the said R., on the day and year last aforesaid, at Guernsey county aforesaid, entered upon the duties of the said office of Treasurer of said county of Guernsey, and from that time the said R. acted as, and in fact was Treasurer of said county of Guernsey for a long space of time and until the said R. moved out of and from and left the said county of Guernsey, to wit, until the first day of March, A. D. 1839, at Guernsey county afore- said, and that after the execution of said writing obligatory as afore- said and while the said R. acted as, and in fact was Treasurer as aforesaid, to wit, on the fifth day of June, A. D. 1838, and on divers other days and times between that day and the day of the said R. leaving said Guernsey county, to wit, the first day of March, A. D. 1839 the said R. as Treasurer as aforesaid had and received divers large sums of money for said county of Guernsey, amounting in all to a large sum of money, to wit, to the sum of eighteen thousand dollars, and that after the said R. had received and had said money of said county as aforesaid, to wit, on the first day of March A. D. 1839, the said R. removed out of and from said county of Guernsey, and out of and from said State of Ohio, and to parts to the said plaintiff" unknown, and so remained and continued from the day and year last aforesaid until the commencement of this suit, and that by reason of the said removal of the said R. as aforesaid, the said office of Treasurer of said county of Guernsey became and was vacant, to wit, on the first day of March, in the year last aforesaid, at Guernsey county aforesaid, and that said office of Treasurer of said county of Guernsey continued vacant until afterwards, to wit, until the tenth day of March in the year last aforesaid, at Guernsey aforesaid : and that afterwards, to wit, on the day and year last aforesaid, at Guern- 222 DEBT. Declarations. sey county aforesaid, the Commissioners of said county of Guernsey met, and appointed W. F. of said Guernsey county, a suitable person for tliat office, to fill the said vacancy in the said office of Treasurer of said county of Guernsey, and that the said W. F., on the day and year lasi aforesaid, at Guernsey county aforesaid, gave an official bond, with four freehold securities, in the sum directed by said Com- missioners, and to the acceptance of said Commissioners, and took an oath faithfully to discharge all the duties of the said office of Treas- urer of said county of Guernsey, and that on the day and year last aforesaid, at Guernsey county aforesaid, the said W. F. entered upon the duties of said office, and became and in fact was and ever since that day has been in fact and of right the Treasurer of said county of Guernsey ; of all of which the said defendants had notice, to wit, on the day and year last aforesaid, at Guernsey county aforesaid. And the said plaintiff in fact says that it then and there, to wit, at Guern- sey aforesaid, on the day and year last aforesaid, became the duty of the said R. to deliver and pay over to the said W. F., as Treasurer as aforesaid, all the money which had been by the said R. recceived as Treasurer as aforesaid, and which he had not paid out according to law. And tlie said plaintiff further avers that the said R., on the day and year last aforesaid or on any other day or time, did not pay over according to law all the money that had come into his hands as Treasurer as aforesaid, after the said fifth day of June, 1838, and the said time of his removal out of the said county as aforesaid, but on the contrary thereof the said R., as Treasurer of said county, between the said fifth day of June, A. D. 1838, and his removal from said county as aforesaid, had and received divers large sums of money belonging to said county, and for the purposes of said county, amount- ing in all to a large sum of money, to wit, to the sum of eighteen thousand dollars, to wit, at Guernsey county aforesaid, and that the said R., though often requested so to do, has hitherto wholly failed, neglected and refused, and still does wholly fail, neglect and refuse to pay over said money, so by him iiad and received, or any part thereof according to law, or to the said F. as Treasurer as aforesaid, and has applied and converted said money to his own use, contrary to his duty as such Treasurer and contrary to the condition of the said writing obligatory. And whereas, also, the said defendants together with the said R. on the first day of June, in the year of our Lord one thousand eight hundred and thirty-eight, at Guernsey county aforesaid, by their cer- tain other writing obligatory of that date, sealed with their seals and signed with the hands of the said defendants and the said R., the said F. having signed the same by the name and style of of S. F., the said S. by the name and style of J. S., the said R. by the name and style of M. R., and the said T. by the name and style of T. J. T. ; which said writing obligatory is now here shown to the Court, DEBT. 223 Declarations. and whereby the said defendants and the said R. acknowledge them- selves jointly and severally to owe the State of Ohio the sum of eighteen thousand dollars other parcel of the sum above demanded, and which said last mentioned writing obligatory is and was subject to a certain condition thereunder written, wherein and whereby after reciting that the said R. had been duly elected Treasurer of said Guernsey county, for the county of Guernsey for the term of two years from the first Monday of June, in the year last aforesaid, it is provided that if the said R. should faithfully and impartially discharge all the duties of his said office agreeably to law, then the above obli- gation to be void and of none effect, otherwise be and remain in full force and virtue in law. And the said plaintiff avers that the said R. afterwards, to wit, on the fifth day of June, to wit, the first Monday of June in the year last aforesaid, became and was in fact Treasurer of said county, and continued as such Treasurer for a long space of time thereafter, to wit, until the first day of March, A. D. 1839, and that on the day and year last aforesaid, at Guernsey county aforesaid, the said office of Treasurer of said county became and was vacant, and that afterwards, to wit, on the tenth day of March, in the year last aforesaid, one W. F. was appointed in due form of law by the Commissioners of said county. Treasurer of said county, to fill said vacancy, and then and there entered upon the duties of the said office, and has since that time continued in fact and of right to act and be Treasurer of said county, to wit, at Guernsey county afore- said; and the said plaintiff in fact further says that the said R., while Treasurer as aforesaid, he as Treasurer collected, received, and had a large sum of money, to wit, eighteen thousand dollars, to wit, at Guernsey county aforesaid, and that upon the entering of said F. upon the duties of said office as aforesaid, it became and was the duty of said R. to pay over said money so by him collected, received and held as Treasurer to said F., to wit, at Guernsey county afore- said, on the day and year last aforesaid : yet the said R. although he had and held the said money so by him collected and received, at the time the said F. so entered upon the duties of said office, yet the said R. has not at any time paid over said money so by him collected, received and held according to law or to the said F., but so to do has hitherto wholly neglected and refused, and still does neglect and refuse, and a large part of said money so held by said R. was by him received and held for the purpose of said county, to wit, twelve thousand dollars thereof, to wit, at Guernsey county aforesaid. And the said defendants, though often requested so to do, have not paid the said sum above demanded, but to pay the same or any part there- of, the said defendants have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of the said plaintiff of five thousand dollars ; and the said Commissioners are injured by the 224 DEBT. Declarations. premises, to wit, at Guernsey county aforesaid, and therefore the said plaintiff brings her suit, &c. No. 25. On Guardian's Bond ; 7 Ohio Rep., 223, Part Ist.^ J. H. was summoned to answer the State of Ohio, for the use of A. B., of a plea of debt, &c. ; and thereupon the said State of Ohio, for the use of said A. B. complains ; for that whereas heretofore, to wit, at the October Term, A. D. 1827, of the Court of Common Pleas within and for the county of W., State of Oliio, A. B., a minor over the age of fourteen years, personally appeared before said Court and made choice of M. G. as his Guardian, which choice was then and there approved by said Court, and the custody of the per- son and property of said minor committed to said M. G., who there- upon afterwards, to wit, on the 3d day of November, A. D. 1827, took upon himself the burthen of said Guardianship ; and that (pur- suant to the order and approval of said Court in that behalf) the said M. G., since deceased, and the said J. H., who has survived the said M. G., on the 3d day of November, 1827, at M. in the county afore- said, by their certain writing obligatory sealed with their seals, and now (by a certified copy from the office of the Clerk of said Court having custody thereof) to the Court here shown, the date whereof is the day and year last aforesaid, acknowledged themselves to be held and firmly bound unto the State of Ohio, in the sum of fifteen hundred dollars to be paid to the said State of Ohio, when they should be thereunto afterwards requested : which said writing obliga- tory was and is subject to a certain condition thereunder written, in substance and to the effect following : that if the above named M. (a) For Forms of Commencement, practice in Kentucky for the Court to Description of Parties, &c. : See appoint Guardians ad litem without Common Counts in Assumpsit, Ante, notice to the infants ; 4 Dana, 440. 36 : Also Declarations in Assumpsit When Guardian buys land with the on Promissory Notes, Jinlc. 46. Li- Ward's money, the Ward may elect ability of Guardians, ad litem; to take the land, or consider it as a Paige, 158; 2 do., 804. Other security for the monej'-; 5 Z>ana, 223: Guardians, and How they are to ac- See 15 Ohio Rep., 655. Guardian- count ; 1 J. J. Marsh., 2^^8 ; 3 ship of daughter determines on mar- ikfonroe, 424 ; 1 do., 170; 'i Dana, riage, secus of sons ; 1 Ves. Sen., 251 ; 6 do., 6. The sureties of a 159, note. A release obtained from Guardian may be joined with him in a Ward on arriving at maturity, is a Bill to account: 5 Paige, 92; 1 suspicious; 1 Uoff. Ch. Rep., 267. Monroe, 207. Power of Guardian For cases in Ohio, See Wilcox's Di- to change the residence of his ward ; gest, 301. 5 Paige, 605. It used to be the DEBT. 225 Declarations. G. should faithfully discharge the trust reposed in him as guardian to said minor, and should also render an accurate statement of his transactions with a just account of the profits arising from the real and personal estate of his said ward, and should deliver up the same to said Court at such time as they should require, then the above obli- gation to be void : otherwise to remain in full power and virtue : And the said State of Ohio who sues for the use of said A. B., in fact saith, that after the granting of said guardianship to the said M. G. as aforesaid, and the execution of the said bond as aforesaid, and before the first day of November, A.- D. 1831, a large amount of rents accruing from the real estate of said minor, came to the hands of the said M. G. as guardian, to wit, to the value and amount of one hundred and sixty-eight dollars — and the said plaintiff further in fact saith that the said M. G. guardian as aforesaid, did not faithfully discharge the trust reposed in him as guardian to said minor, but wholly converted and disposed of to his own use the avails of the real estate of said minor which came to his hands as aforesaid ; and said M. G. in his life time wholly neglected and refused to pay to the said A. B. said sum of one hundred and sixty-eight dollars or any part thereof, although often requested so to do ; whereby the said A. B. saith he is injured, and hath sustained damage, to a large amount, to wit, to the amount of fifteen hundred dollars : And the said plain- tiff", for assigning a further breach of the said condition of the said writing obligatory, according to the form of the Statute, &c., further says, that the said M. G. in his life time, did not within three years after his appointment, nor at any time thereafter, settle his account with his said ward with said Court of Common Pleas, as he was by law bound to do, nor did said Guardian at any time file an account with the vouchers in support thereof with the Clerk of said Court, or take any steps towards discharging the duties of his trust by law im- posed upon him : By means of which said promises, the said A. B. hath sustained damage to a large amount, to wit, to the amount of fifteen hundred dollars ; and thereby an action hath accrued to the said State of Ohio, for the use of the said A. B., to demand and have of and from the said J. H. the said sum of fifteen hundred dollars in said writing obligatory mentioned : Yet the said J. H., although often requested so to do, hath not as yet (nor did the said M. G., in his life time) paid the said sum of fifteen hundred dollars in said writing obligatory mentioned, or any part thereof to the said State of Ohio, but to pay the same hath hitherto wholly refused, and still doth refuse : To the damage of the said plaintiff in the sum of fifteen hundred dollars, and therefore this suit is brought, &c. 29 226 DEBT. Declarations. No. 26. Against Treasurer of School Fund and his Sureties, for not paying over money to Successor ; 13 Ohio Rep. 495.* The Stale of Ohio, for the use of Monroe Township, Logan Coun- ty, complains of G'. W., B. L. and S. P., for that the said defendants, on the fourteenth day of April, A. D. 1842, at the County of Logan aforesaid, made their certain writing obhgatory, sealed with their seals, (and now to the Court here shown,) and then and there delivered the same to the said plaintiff, and thereby acknowledged themselves to be jointly and severally bound to the said plaintifT in the sum of eight hundred dollars, to be paid to the said plaintiff; which said writing obligatory Avas and is subject to a certain condition thereunder writ- ten ; whereby it is provided, that whereas the said G. W. was, on the fourth day of April, A. D. 1842, duly elected Treasurer of Monroe Township, Logan County ; and that if the said G. W. as such Trea- surer, should faithfully disburse and pay over, according to law, all such school or other public funds and moneys as should from time to time, come into his hands for school purposes, then said writing ob- ligatory to be void, otherwise to be and remain in full force and vir- tue in law. And the said plaintiff, for assigning breaches in said bond, says that the said G. W. did not, from time to time, pay over according to law, all moneys that came into his hands for school pur- poses, according to law ; but on the contrary thereof, the said plain- tiff avers that heretofore, to wit: on the first Monday in April, A. D. 1843, at the County aforesaid, one P. M. was duly elected and qualified to succeed the said G. W. as such Treasurer of Monroe Township aforesaid, and then and there took upon himself the exe- cution of said office. And the said plaintiff further avers that the said P. M. then and there demanded of the said G. W. all public moneys which had, from time to time, come into the hands of the said G. W. for school purposes, which the said G. W. had not paid over according to law. And the said plaintiff further avers that a large sum of money, to wit : the sum of five hundred dollars had come into the hands of the said G. W. for school purposes which the said G. W. had not paid over according to law ; yet the said G. W. then and there wholly and absolutely refused to pay over the same, or any part thereof to the said M. as by law he was bound to do. And also for that whereas heretofore, to wit, on the fourteenth day of April, A. D. 1842, at the County of Logan aforesaid, the said G. W., 13. L. and S. P. made their certain obligatory, scaled with their (a) For Forms of Commencement, 36: Also, Declarations in Assump- Description of Parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. DEBT. 227 Declarations. seals, dated the day and year aforesaid, and now to the Court here shown, and then and there delivered the same to the plaintiff, where- by the said defendants, acknowledged themselves to be jointly and severally bound to the plaintiff in the sum of eight hundred dollars, to be paid to the said State of Ohio for the use of Monroe Town- ship, which said writing obligatory was and is subject to a condition thereunder written, whereby it is provided that if the said G. W. should faithfully disburse and pay over all school and other public moneys, that should come into his hands as Treasurer of Monroe Township aforesaid, for school purposes, then said writing obligatory should be void, otherwise to be and remain in full force and virtue in law. And the plaintiff avers that the said G. W., though specially requested by his successor in office, on the twentieth day of April, A. D. 1843, at the County aforesaid, did not nor would not pay over according to law, all moneys then and there in his hands for school purposes ; although the said G. W. then and there had in his hands a large sum of money, to wit, the sum of five hundred dollars, which, by law, he was bound to pay over to his said successor in of- fice. Yet the said G. W. hath hitherto wholly neglected and refused to pay over the same or any part thereof. Wherefore the said plain- tiff says he has sustained damages to the amount of five hundred dol- lars, and thereupon he sues, &c. No. 27. On Injunction Bond ; 1 1 Ohio Rep. 342.* Epaphro Seymour complains of Thomas Griffith, Hezekiah King and Joseph Elias, in plea of Debt, for that whereas heretofore, to wit, on the thirtieth day of April, A. D, 1840, in the Court of Common Pleas in and for the County of Geauga, and State of Ohio, there was pending a certain action of assumpsit in favor of the said plain- tiff, and against the said Thomas Griffith and one John S. Seymour, and said action so being in said Court pending, the said Thomas Grif- fith afterwards, to wit, on the day and year aforesaid, to wit, at Chardon, in said County of Geauga, filed in said last mentioned Court, in open Court, his Bill in Chancery against the said plaintiff and said John S. Seymour, praying, among other things, for the al- lowance of a writ of injunction against the said plaintiff, to restrain him the said plaintiff, from any and all further proceedings at law in said action of assumpsit until the further order of said last mentioned Court and the matters thereof, could be heard in Equity, and therc- (a) For Forms of Commencement, 36 : Also, Declarations in Assump- Description of parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assitjipsit, Ante. 228 DEBT. Declarations. upon afterwards, to wit, on the first day of May, A. D. 1840, to wit, at Chardon aforesaid, in open Court, an injunction as prayed for in said bill was allowed by said last mentioned Court ; and thereupon afterwards, to wit, on the day and year last aforesaid, to wit, at Chardon aforesaid, the said defendants made and executed their cer- tain writing obligatory, bearing date on the thirtieth day of April, A. D. 1840, sealed with their seals, and now to the Court here shown, whereby the said defendants acknowledged themselves to be held and firmly bound unto the said Plaintift' in the sum of four hundred dol- lars, to be paid to the plaintift' on demand ; which said writing oblig- atory was and is subject to a certain condition thereunder written, whereby, after reciting that whereas the said Thomas Griffith had ob- tained an allowance of an injunction in the Court of Common Pleas of the County of Geauga, and State of Ohio, to stay all further pro- ceedings at law in a certain action of assumpsit pending in said Court whereof the said Epaphro Seymour was plaintiff', and the said Thomas Griffith and John S. Seymour were defendants, instituted in said Court, on the law side thereof, at the November Term thereof, A. D. 1839, until the further order of said Court, and the matter thereof could be heard in equity, it was provided that if the said Thomas Griffith should pay all moneys and costs then due or to be- come due from him the said Griffith and John S. Seymour, one of the defendants to said Bill in Chancery mentioned, and all mon- eys and costs which should be decreed against the said Thomas Grif- fith, in case the said injunction should be dissolved, then said obliga- tion should be void, otherwise to remain in full force and virtue in law. And the said defendants then and there offered and delivered said bond to David D. Aiken, then and there Clerk of said last men- tioned Court, as such Clerk, as a good and sufficient Injunction Bond and security to said plaintiff in said cause ; and said David D. Aiken, as such Clerk aforesaid, tlien and there accepted and approved the same, for the purpose aforesaid, and then and there placed the same on the files of said last mentioned Court, for the use and security of said plaintiff; and thereupon a judgment in the said action of assump- sit having then and there, by the consideration of said last mentioned Court, been rendered in favor of the said plaintiff, and against the said Thomas Griffith, by the said last mentioned Court, an order was made and entered on the records of said last mentioned Court, staying the issuing of an execution on said judgment, in substance as follows, to wit : " And it is ordered by the Court, that no execution be issued on this judgment until the final hearing of a BiU in Chancery, filed at this Term, by Thomas Griffith, one of the defendants, against the said John S. Seymour and Ej)aphro Seymour, but that tliis injunction remain subject to the final hearing of said bill." And the said plaintiff further says, that afterwards, to wit, on the twentieth day of May, A. D. 1840, to wit, at Chardon aforesaid, the DEBT. 229 Declarations. said Thomas Griffith caused to be issued out of the office of the Clerk of said last mentioned Court in said cause in Chancery, the writ of SubpcEna in due form of law under the seal of said last men- tioned Court, against the said plaintiff and the said John S. Seymour, which was afterwards, to wit, on the sixth day of June, A. D. 1840, duly served upon the said plaintiff and the said John S. Seymour, and such proceedings in said last mentioned cause were thereupon had, that afterwards, to wit, at the June Term of said Court of Com- mon Pleas of said County of Geauga, begun and held at the Court House in Chardon, in said County, on the thirtieth day of June, A. D. 1840, by the order of said last mentioned Court, said injunction in said cause was dissolved, and then and there, by the consideration of said last mentioned Court, it was ordered and decreed that said Thomas Griffith, within thirty days from the rising of said last men- tioned Court, pay to the said plaintiff the sum of three hundred for- ty-four dollars eighty-seven cents, together with the costs of said suit in Chancery, taxed at nineteen dollars and eighty-six cents, with the interest thereon from the first day of said last mentioned Term of said Court, and that in default thereof, execution issue to collect the same, as upon judgments at law. And the said plaintiff further says, that afterwards, to wit, on the eleventh day of August, A. D. 1840, and after the expiration of said thirty days from the rising of said Court, at its last mentioned Term, to wit, at Chardon aforesaid, he caused a writ of execution, called a Fieri Facias, to be issued on said decree, out of the office of the Clerk of said last mentioned Court, in due form of law, under the seal of said Court, and directed to the Sheriff of said County of Geauga, which said writ of execution was afterwards, to wit, on the twelfth day of August, A. D. 1840, to wit, at Chardon aforesaid, delivered to Abel Kimball, 2d., then and there Sheriff of said County of Geauga, for service and return, and was afterwards, to wit, on the sixth day of October, A. D. 1840, at Chardon aforesaid, by said Abel Kimball, 2dy Sheriff as aforesaid, returned into the office of said Clerk of said last mentioned Court, indorsed in substance as follows, to wit, " I have made due and diligent search for goods, chattels, lands and tenements belonging to the defendant," (then and there meaning said defend- ant Thomas Griffith,) " and find none in my bailiwick unincumbered by mortgage whereon to levy this execution," ( then and there mean- ing said writ of execution,) " and the same is returned wholly unsat- isfied ; October 6th, 1840. Abel Kimball, 2d., Sheriff." Upon which said writ of Execution, there then and there accrued the sum of one dollar and seventy cents increased costs. And said plaintiff" further says that said decree still remains in full force and wholly un- satisfied, and in no wise reversed, vacated or annulled, to wit, at Chardon aforesaid, to wit, on the day and year aforesaid, as by an 230 DEBT. Declarations. exemplified copy of the record of said suit in Chancery, and said de- cree now ready in Court to be shown, will fully appear. By means whereof, and by form of the Statute in such case made and provided, an action hath accrued to the said plaintiff to demand and have of and from the said defendants the said sum of four hun- dred dollars in said bond mentioned. Yet the said defendants, though often requested, have not, nor has either of them paid the same, or any part thereof to the said plaintiff, but to pay the same, or any part thereof, have hitherto wholly neglected and refused, and still do neg- lect and refuse. And also for that whereas heretofore, to wit, on the thirtieth day of April, A. D. 1840, in the Court of Common Pleas in and for the said County of Geauga, there was pending a certain other action of assumpsit in favor of the said plaintiff, and against the said Thomas Griffith and John S. Seymour ; and said action so being in said Court pending, the said Thomas Griffith afterwards, to wit, on the day and year last aforesaid, to wit, at Chardon, in said County of Geauga, filed in said last mentioned Court, in open Court, his certain other Bill in Chancery against the said plaintiff and the said John S. Seymour, praying, among other things, for the allowance of a writ of injunction against the said plaintiff, to restrain him the said plaintift', from any and all further proceedings at law in said last mentioned ac- tion of assumpsit, until the further of the said last mentioned Court, and the matters thereof, could be heard in equity ; and thereupon af- terwards, to wit, on the first day of May, A. D. 1840, to wit, at Chardon aforesaid, in said'last mentioned cause in Chancery, an in- junction was allowed by said last mentioned Court, in open Court, as prayed for in said bill, and thereupon the said defendants afterwards, to wit, on the day and year last aforesaid, afterwards, to wit, at Chardon aforesaid, made and executed their certain other writing ob- ligatory, bearing date on the thirtieth day of April, A. D. 1840, sealed with their seals, and now to the Court here shown, whereby the said defendants acknowledged themselves to be held and firmly bound un- to the said plaintiff in the sum of four hundred dollars, to be paid to the said plaintifi' on demand, which said last mentioned writing ob- ligatory was and is subject to a certain condition thereunder written ; whereby, after reciting that whereas, the said Thomas Griffith had obtained an allowance of an injunction in the Court of Common Pleas of the County of Geauga, and State of Ohio, to stay all fur- ther proceedings at law, in a certain action of assumpsit pending in said Court, whereof the said Epaphro Seymour was plaintiff, and the said Thomas Griffith and Jolm S. Seymour were defendants, in- stituted in said Court on the law side thereof, at the November term thereof, A. D. 1839, until the further order of said Court, and the matters thereof, could be heard in equity ; it was provided that if the DEBT. 231 Declarations. said Thomas Griffith should pay all moneys and costs then due or to become due from him the said Griffith, and John S. Seymour, one of the defendants to said bill in Chancery mentioned, and all moneys and costs which should be decreed against the said Thomas Griffith, in case the said injunction should be dissolved, then said obligation should be void, otherwise in full force and virtue in law ; and the said defendants then and there offered and delivered said last men- tioned bond to said David D. Aiken^ Clerk as aforesaid, as such Clerk as aforesaid, as a good and sufficient injunction bond and secu- rity to said plaintiff in said last mentioned cause, and said David D. Aiken as such Clerk as aforesaid, then and there accepted and ap- proved the same, for the purpose aforesaid, and then and there placed the same on the file of said last mentioned Court, for the use and se- curity of said plaintiff. And the said plaintiff further says that afterwards, to wit, on the twentieth day of May, A. D. 1840, to wit, at Chardon aforesaid, the said Thomas Griffith caused to be issued out of the office of the Clerk of said last mentioned Court, the writ of Subpoena in said last men- tioned cause, in due form of law, under the seal of said last mention- ed Court, against the said plaintiff and the said John S. Seymour, which was afterwards, to wit, on the sixth day of June, A. D. 1840, duly served upon them, the said plaintiff and the said John S. Sey- mour, and such proceedings in said last mentioned cause were there- upon had that afterwards, to wit, at the June Term of said last mentioned Court, begun and held at the Court House at Chardon, in said County of Geauga, on the thirtieth day of June, A. D. 1840, by the order of said last mentioned Court said last mentioned injunction was dissolved, and then and there by the consideration of said last mentioned Court, it was ordered, adjudged and decreed that the said Thomas Griffith, within thirty days from the rising of said last men- tioned Court, pay to the said plaintiff the sum of three hundred forty- four dollars and eighty-seven cents, together with the costs of said last mentioned suit, taxed at nineteen dollars and eighty-six cents, with the interest thereon from the first day of said last mentioned Term of said Court, and that in default thereof, execution issue to collect the same as upon judgments at law. And the said plaintiff further says that after the expiration of said thirty days from the rising of said last mentioned Court, at the said last mentioned Term, to wit, on the eleventh day of August, A. D. 1840, to wit, at Chardon aforesaid, said last mentioned decree being and remaining then and there wholly unpaid, he caused a writ of execution, called a Fieri Facias, on said last mentioned decree to be issued out of the office of the Clerk of said last men- tioned Court, in due form of law, under the seal of said Court, di- rected to the Sheriff of said County of Geauga, which said last men- tioned writ of execution, was afterwards, to wit, on the twelfth day 233 DEBT. Declarations. of August, A. D. 1840, to wit; at Chardon aforesaid, delivered to said Abel Kimball, 2d., then and there Sheriff of said County of Ge- auga as aforesaid, for service and return, and the same was afterwards, to wit, on the sixth day of October, A. D. 1840, at Chardon afore- said, by said Abel Kimball, 2d., Sheriff as aforesaid, returned into the office of the said Clerk of said last mentioned Court, indorsed in substance as follows, to wit, " I have made due and diligent search for goods, chattels, lands and tenements belonging to the defendant, and find none in my bailiwick, unincumbered by mortgage, whereon to levy this execution, and the same is returned wholly unsatisfied ; Oct. 6, 1840. Abel Kimball, 2nd., Sheriff." Upon which said last mentioned writ of execution then and there accrued the sum of one dollar and seventy cents increased costs. And the said plaintiff fur- ther says that said last mentioned decree still remains in full force and wholly unsatisfied, and in no wise reversed, vacated or annulled, to wit, at Chardon aforesaid ; which said last mentioned premises, by an exemplified copy of the record of said last mentioned suit in Chancery, and the proceedings upon said last mentioned decree had, now ready in Court to be shown will fully appear. By means whereof, and by form of the Statute in such case made and provided, an action hath accrued to the said plaintiff to demand and have of and from the said defendants said sum of four hundred dollars in said last mentioned bond specified. Yet the said defen- dants, though often requested, have not paid the same, or any part thereof, to the said plaintiff, but to pay the same, or any part thereof, have hitherto wholly neglected and refused, and still do neglect and refuse ; all which is to tlie damage of the said plaintiff of four hun- dred dollars, and therefore he sues, &c. No. 28. Against Sheriff' and his Sureties for a false Return ; 3 Ohio Rep. 487.^ Charles Colerick, John Kerr, John Hawn, Junior, John Shaw, Godleib Zimmerman, William Douglass, John A. Colerick and Thomas Irvine, surviving obligors with Rezin Yates, deceased, were summoned to ansvv^er unto the State of Ohio for the use of Robert Fulton, Charles Marvin and Thomas D. Webb, of a plea that they render to the said State for the use aforesaid, tlie sum of ten thousand dollars, which they owe to and unjustly detain from said State, &.c. Where- upon the said State of Ohio, for the use aforesaid, by — her attorney in that behalf complains. For that whereas the said defendant, with (a) For Forms of Commencement, 36: Also Declarations in Assumpsit Description of Parties, &c., See on Promissory Notes, Ante. 46. Common Counts in Assuivipsit, Ante. DEBT. 233 Declarations. Rezin Yates, in his lifetime, who is now deceased, heretofore, to wit, on the 23d day of November, A. D. 1826, at the county of Knox aforesaid, by their certain writing obhgatory, sealed with their seals, and now shown to the Court here, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound unto the said -State of Ohio, in the sum of ten thousand dollars, to be paid to the said State, when they the said defendants should be thereunto afterwards requested. Yet neither of the said defendants, nor the said Rezin Yates have, although often requested, paid the said sum of money, or any part thereof, to the said State of Ohio, but so to do have hitherto wholly refused and still refuse so to do, to the damage of the said State, of ten thousand dollars, and therefore they bring their suit, &c. By T. S., Att'y for Pl'tiff. [ The Bond is here set out upon Oyer, and a plea of Performance.] And the said Plaintiff, for assigning a breach of the condition of the said writing obligatory, according to the form of the Statute in such case made and provided, says that heretofore, to wit, at the March Term, A. D. 1824, before the Judges of the Court of Com- mon Pleas of said county of Knox, at Mt. Vernon, in said County, by the consideration and judgment of said Court, Fulton, Marvin &, Webb recovered against one Abraham Darling and Nicholas Riley a certain debt of five hundred dollars, and also thirty-three dollars and twenty-five cents damages, and ten dollars and — cents, costs of suit, whereof the said Abraham and Nicholas were convicted, as ap- pears by the records and proceedings thereof still remaining of record in the same Court, at Mt. Vernon, in the County of Knox aforesaid. And the plaintiff further saith that the said judgment be- ing in full force, and the said debt, damages and costs so recovered as aforesaid, remaining unpaid and unsatisfied, the said Fulton, Mar- vin & Webb, on the 15th day of January, 1827, at — , for the ob- taining satisfaction thereof, sued and prosecuted out of the said Court a certain Writ of Execution called a Fieri Facias et Levari Facias, directed to the Sheriff of said county, by which said writ the said Sheriff was commanded that of the goods and chattels of the said Abraham and Nicholas, in his bailiwick, he should cause to be made the debt, damages and costs aforesaid, and that for the want of such goods and chattels he should cause the same to be made of the lands and tenements of the said Abraham and Nicholas, and that he should have the money, with the interest and cost accruing before said Court of Common Pleas, at Mt. Vernon, the second day of the then next Term, and should have then there that Writ, which said writ was then and there duly indorsed with the exact amount of the debt, 30 234 DEBT. Declarations. damages and costs for whicli said judgment was rendered, and which said writ, so indorsed, afterwards and before the return thereof, to wit, on the — day of — , 1827, at Mt. Vernon aforesaid, was deliv- ered to the said Charles Colerick, who then and there, from thence until and at and after the return of the said last mentioned Writ was Sheriff of the said county of Knox, to be executed in due form of law ; and although there were then and afterwards and before the return of the said Writ, divers goods and chattels and lands and ten- ements of the said Abraham and Nicholas, within the bailiwick of the said Charles Colerick, as such Sheriff as aforesaid, whereof the said Charles Colerick could and might and ought to have levied the moneys so indorsed on said last mentioned Writ, and directed to be made and levied as aforesaid, to wit, at Mt. Vernon aforesaid, in the county aforesaid, whereof the said Charles Colerick, so being Sherifl' as aforesaid, then had notice ; Yet the said Charles Colerick, so be- ing Sheriff as aforesaid of the said county of Knox, not regarding the duty of his said office as Sheriff", but contriving and wrongfully and wickedly intending to injure, prejudice and aggrieve the said Ful- ton, Marvin &- Webb in this behalf, and to defraud them of the moneys so directed to be made and levied as aforesaid, and of the means of obtaining the same, did not nor would at any time before the return of the said Writ, make or cause to be made the moneys aforesaid, or any part thereof, but wholly neglected and refused so to do, and therein failed and made default ; and at the return of the said Writ, to wit, on the — day of — , 1827, at Mt. Vernon afore- said, falsely and deceitfully returned to the said Court, that the said Writ of Execution was stayed by order of plaintifi 's attorney, as by the said Writ and Return thereof remaining filed of record in the said Court, to wit, at Mt. Vernon aforesaid, fully appears. And the plaintiff says that no orders to stay said Writ of Execution were ever at any time given to the said Sheriff by the plaintiff, their attorney, or either of them, to wit, at Mt. Vernon aforesaid ; By means whereof the said Fulton, Marvin & Webb were greatly injured, and deprived of the means of obtaining the said moneys so directed to be made and levied as aforesaid, and which arc wholly unpaid as before, and are likely to lose the same, to wit, at Mt. A'^ernon aforesaid. And the plaintiff further saith, that for the aforesaid breach of duty in the said Sheriff, the said Fulton, Marvin & Webb, on the — day of — , 1827, at Mt. Vernon aforesaid, brought their action on the case a- gainst the said Charles Colerick, Slicriff as aforesaid, which suit came to a trial upon an issue joined between the said Fulton, Marvin & Webb, on the said Charles Colerick, as Sheriff as aforesaid, at the — Term, 1827, of the Court of Common Pleas of said county of Knox, to wit, at Mt. Vernon aforesaid; and upon said trial of said issue the said jury then and there found the defendant, Colerick, "guilty," and assessed the damages which the said Fulton, Marvin &- Webb had DEBT. 235 Declarations. sustained by reason of the aforesaid breach of duty in said Sheriff, at the sum of — dollars ; and the said Court at the same time ren- dered a judgment upon and finding in favor of Fulton, Marvin & Webb, against said Charles Colerick, Sheriff as aforesaid, for the said sum of — dollars, and also for — dollars — cents, costs of suit, to wit, at Mt. Vernon aforesaid, which judgment still remains in full force, unreversed and unsatisfied, all which by the records of said Court there remaining, at Mt. Vernon aforesaid, will more fully ap- pear ; nor have any of the defendants paid the same, nor the said Rezin Yates in his life time. By means of which said premises the plaintiff hath sustained damages to a large amount, to wit, of ten thousand dollars, and thereby an action hath accrued to the plaintiff to demand and have of and from the said defendant the said sum of ten thousand dollars. Yet the said defendant, nor the said Yates in his life time, although often requested so to do, hath not as yet paid the said sum of ten thousand dollars above demanded, nor any part thereof ; nor have they or said Yates satisfied the said Fulton, Marvin &, Webb, their damages aforesaid sustained by reason of the breach of the said Charles Colerick of the conditions of the said bond as above specified, but to pay the said debt or damages, the defendant, and the said Yates, in his life time, have wholly refused and still re- fuse, contrary to the form and effect of the said condition of the said writing obligatory, to wit, at Mt. Vernon aforesaid, and this the plaintiff is ready to verify, and thereupon prays judgment, &c. No. 29. On Recognizance of Bail^ Omer Tousey and George Tousey, plaintiffs in this suit, complain of John L. Avery, defendant in this suit, in a plea that he render un- to them a debt of two thousand dollars, which he owes to, and un- justly detains from them ; for that the defendant, on the seventeenth day of March, Anno Domini eighteen hundred and thirty-eight, ap- peared before William Henry Harrison, Clerk of the Court of Com- mon Pleas of said County, and acknowledged himself to owe to the said plaintiffs the said sum of two thousand dollars, to be levied on their goods and chattels, lands, tenements and real estate, upon con- dition that if the defendant, James Gunsobs, should be condemned in a certain action, at the suit of the said plaintiffs, that is to say, in (a) For Forms of Commencement, 36: Also Declarations in Assumpsit Description of Parties, &c., See on Promissory Notes, Jinte. 46. Common Counts in Assumpsit, Ante. 236 DEBT. Declarations. a certain action then pending in the said Court of Common Pleas in which the said Omer and George Tousey were plaintiffs, and the said Gunsobs was defendant, that he the said Gunsobs, should pay the costs and condemnation of the Court, or be rendered, or render him- self into the custody of the Sheriff of the said County for the same, or in case of failure that he the said John L. Avery would pay the costs and condemnation for him, as will fully appear by reference to said recognizance of bail, as of record in this Court. And the said plaintiffs aver, that afterwards, to wit, at the February Term, Anno Domini eighteen hundred and forty, of the said Court of Common Pleas, such proceedings were had in the said action then pending a- gainst the said Gunsobs, and in which the said recognizance of bail was taken, that by the judgment and consideration of the said Court, the said plaintiffs recovered against the said Gunsobs eight hundred and sixty dollars and fifty cents damages, and twenty one dollars and twenty-two cents costs of suit, as by the record thereof in this Court appears. And the said plaintiffs further aver, that afterwards, to wit, on the 21st day of April, 1840, upon proper affidavit being made that the said Gunsobs was not a resident or citizen of the State of Ohio, the Hon. , Esq., President Judge of the said Court of Com- mon Pleas, made an order in writing, which has been filed in said Court, directing that a Capias ad satisfaciendum should be issued on said judgment against said Gunsobs. Whereupon, on the 12th day of May, 1840, a writ of execution, usually called a Capias ad satisfaciendum, was issued out of the Clerk's office of said Court, on said judgment, directed to the Sheriff of Hamilton County, by which he was commanded to take the said Gunsobs, if found in his baili- wick, and him safely keep, to satisfy said damages and costs afore- said, and that he should return the same into the said Court of Com- mon Pleas on the first day of June then next ; on which said execu- tion the Sheriff returned, " Not found," to wit : that the said Gun- sobs was not in his bailiwick. And the said Gunsobs has not paid the costs and condemnation of the Court, to wit: the judgment afore- said, nor has the defendant paid the same, nor has the said Gunsobs rendered himself into the custody of the Sheriff' of said Hamilton County, By reason of which premises,- an action hath accrued to the said plaintiffs to have and demand of the said defendant the said debt of ^'2000. Nevertheless, the said defendant, although often re- quested, hath not paid the same, which is to their damage 1^1200, and therefore they bring suit, &,c. DEBT. 237 Pleas in Abatement. Pleas in Bar. Pleas in Abatement and in Bak.^ Non-joinder of a joint Contractor. Common Pleas. And the said C. D. comes and defends, &-c., where, &c., and prays judgment of the writ and declaration aforesaid, because he says, that the said several supposed causes of action in the declaration men- tioned, and each of them accrued against, and the said supposed debts were, and each of them was contracted, and became due from the defendant jointly with one G. H. who is still living, to wit, at — within the jurisdiction of this Court, and that neither of such sup- posed causes of action accrued against, nor was either of such debts contracted by, nor did either of them from the defendant alone ; and this the said C. D. is read to verify ; Wherefore, &c. [Conclude as in No. 1, Ante. 109, anc? add Affidavit as there directed.] For other Pleas in Abatement, and Proceedings thereon, See Pleas in Abatement in Assumpsit, Ante. 108. Pleas in Bar.'' No. 1. Non est factum to Debt on specialty 7iot craving Oyer. In Debt. And the said C. D. comes and defends, &c., and says, that the said Indenture, or, Articles of agreement, or, Bond, (as the case may (a) For general Rules regulating Coverture; Lunacy ; Str. 1 104. Es- Pleas in Abatement, See Fleas in crow; 6 Mod. 218 ; Salk, 724:. E- Matement in Assumpsit, Ante. 108. rasure, Alteration, Cancellation ; 5 /I ^ -CI 1 , , . Co. 119, b. So, if two are bound, (b) For general rules regulating ,, ^^^^ ^^^ ^^^^ ^^ ^^^ .^ ^^^^ ^^,, Fleas in Bar, oee Fleas in Bar in n ro t-> r * ^„„i Assumpsit, Ante, 116. ^^^'■' ^^- , Formerly, it was usual m cases of Escrow, Rasure, Inter- ne) Under the plea of Non estfac- lineation, 8fc, to plead the matter spe- tum, the deft may give in evidence cially, and conclude thus : " and so 238 DEBT. Pleas in Bar. be,) in the declaration mentioned, is not his deed ; and of this he puts himself upon the country, (See. ; And the said A. B. doth the like. No. 2. The like, craving Oyer, and setting out Bond and Con- dition. C— D— , ^ ads. > In Debt. A— B— , ) And the said C. D. comes and defends, &.c., and craves oyer^ of of the said supposed writing obligatory, in the declaration mentioned, the said C. D. says, that the writing, &c., is not his deed, and of this he puts himself upon the country." This was called a special non est fac- tum. But these pleas have fallen into disuse ; and by Holt. C. J. I have never known one in all my time : they are impertinent, for there- by they bring all the proof upon the defendant, whereas if Non est fac- tum generally were pleaded, the proof would lie on the plaintiff; 3Iod. 218 ; Story PL 248. The Plea of Non est factum puts nothing in issue but the making of the deed ; Courcier v. Graham, 1 Ohio Rep. 330 ; S. P. Reynolds V. Rogers, 5 Ohio Rep. 169 ; Bra- zee V. Blake, 5 Ohio Rep. 340 ; Granger v. Granger, 6 Ohio Rep. 3.5. Non est factum is such a Gen- eral issue, that Notice of matter in bar, or in set-off, may be put in under it ; lb. For Form of Notice, See General Issue in Assumpsit, An- te. 117. Under the Plea of Non est factum the plaintiff is not requi- red to prove the execution of the deed unless the defendant makes affidavit of the truth of the Plea ; Swan's Stat. 325, § 18. For the Form of an Jlffidavit, See General Issue in Assumpsit, Ante. 117. When the subscribing witness to an instrument denies his signature, other witnesses may notwithstanding be called to prove such witness' signature genu- uine ; Duckwall v. Weaver, 2 Ohio Rep. 13. That a subscribing wit- ness is out of the jurisdiction of the Court, may be proved by other tes- timony than a subpoena returned, " not found ;" Clark v. Boyd, 2 Ohio Rep. 50. Where a subscribing wit- ness is out of the jurisdiction of the Court, proof of his hand-writing is enough to admit the instrument ; lb. In a suit on a written contract, in re- lation to real estate, not under seal, the subscribing witness must be pro- duced, or his absence accounted for : The confessions of the party cannot be substituted in the place of the witness ; Zerby v. JVilson, 3 Ohio Rep. 42. Proof by comparison of hand-writing — General Rules ; 8 Eng. Com. Law Rep. 147 ; 1 Blackf. 48 ; 2 do. 92. (a) Oyer is demandable as of right whenever the action is founded on a specialty, and profert has been ne- cessarily made. Where, instead of profert, there is an excuse for omit- ting it, the plea may traverse the ex- cuse laid in the declaration, as " that the deed is not lost," «fec., or, " is not in the defendant's possession," Oy- er is considered as a prayer or peti- tion that the party may hear read to him the instrument, &c. stated in the DEBT. 239 Pleas in Bar. and it is read to him, &c. ; And he also craves oyer of the condition of the said supposed writing obligatory and it is read to him in these words. [Hei'e set out the recitals, and condition, verbatim,] which being read and heard, the said C. D. says that the said supposed writing obligatory is not his deed; and of this he puts himself, &.c. [Con- clude as in No. 1, Ante. 237.] pleadings of the opposite party, and which document is by intendment of law in court, when it is pleaded with a profert ; 3 Blac. Com. 299 ; 3 Salk. 119 ; 12 Mod. 298. The de- mand. of oyer is a kind of plea, and may be counterpleaded ; 3 Salk. 119. The application for oyer should be made before the time for pleading is out; 1 77, ^. 150; and if not made till after that lime, the plaintiff may consider the demand as a nullity, and sign judgment. But though oyer be not in strictness demandable, yet if it be given, the party demanding has a right to make use of it. If the de- fendant would insist vxpon his demand of oyer, he should move the court to have it entered upon record ; G Mod. 28. If the plaintiff, on the other hand, would contest the oyer, he may either counterplead it, or strike out the rest of the pleading, and de- mur ; 2 Lev. 142 ; 2 Scdk. 407 ; 2 Ld. Raym. 970 ; 1 Saund. 9, note p.', upon which the judgment of the court is, either that the defendant have oyer, or that he answer without it. On the latter judgment the de- fendant may bring a writ of error ; for to deny oyer where it ought to be granted, is error, but not e converso ; XIII. Peter sd. Mg. 73. There is no settled time prescribed for the plaintiff to give oyer, but the defen- dant shall, in all cases, have the same time to plead, after oyer given, as he had at the time of demanding it ; 1 Stra. 705. The plaintiff' shall have the same time to reply after oyer given him by the defendant as he had at the time of demanding it ; XIII. Petersd. Mg. 74. In England, oyer is in common practice demand- ed by a note in writing from the plaintiff's attorney ; 1 Chit. Prec. 444. A like practice is not vmcom- mon in Ohio ; See Declarations in Debt, Ante, 193, note (a.). It is said, that when the defendant intends to dispute the validity of the deed, fie should refer to it in his plea, merely by the term " writing," or " supposed writing obligatory," and should not say " writing obhgatory," because such admission would be in- consistent with the proposd defence ; 1 Saund. 291, a. n. ; 1 Lill. Ent. 106. Where no use is intended to be made of the bond in pleading, it is unnecessary to crave oyer of it at all, or to enter any such prayer. It is sufficient to set out the condition upon oyer; 1 Saund. 9, b. n. 1. But the whole condition, or deed must be set forth upon oyer, for if there be any misrecital, the plaintiff, in his rephcation may pray that the deed, &c. may be enrolled, and then demur ; 1 Saund. 9, b. n. 1 ; 4 T. R. 370. 240 DEBT. Pleas in Bar. No. 3. Nil Beheld In Debt. And the said C. D. comes and defends, &.C., and says that he does not owe the said sum of money above demanded, or any part thereof, in manner and form as the said A. B. hath complained against him ; and of t[)is he puts himself upon the country, &c., and the said A. B. doth the like. No. 4. ISon est factum, and Nil Debet, to Debt on Bond, and Simple Contract. C— D— , ^ ads. > In Debt. A— B— , ) And the said C. D. comes and defends, &c., and as to the said first count of the said declaration, says, that the said supposed writing obligatory therein mentioned is not his deed, and of this he puts himself upon the country, &c., and as to the second, third and last counts of the said declaration, the said C. D. says that he does not owe the said sums of money therein mentioned, nor any of them nor any part thereof, in manner and form as the said A. B. hath complain- ed against him, and of this he puts himself, d:c. [Conclude as in No. 1, Ante. 237. (a) Nil Debet may always be must aver matters in pais to support pleaded in debt on simple contract, his action on a specialty, nil debet, is It is a proper plea in some cases of pleadable ; Salk. 284, 565; 1 Saund. debt upon specialty ; or where the 38 ; 8 Johns. 83. Nil Debet is a deed is merely inducement, and mat- good plea in Debt on a Justice's judg- ters in pais form the foundation of ment from a sister State ; 5 Ohio the action. The general rule seems Rep., 545. to be, that whenever the plaintiff DEBT. 241 Pleas in Bar. No. 5. Onerari non.^ And the said C. D. comes and defends, &c., and says, that he ought not to be charged with the said debt by virtue of the said sup- posed writing obhgatory, because he says, &c., [Here state the ground of defence^ and this he is ready to verify ; wherefore lie prays judgment, if he ought to be charged with the said debt by virtue of the said supposed writing obligatory, &c. No. 6. Deed obtained by Fraud} C— D- ads. A— B- In Debt. Non est factum, as in No. 1, Ante. 237. And then proceed thus : And for a further plea, onerari non, as in the last precedent, because he says that the said writing in the said declaration mention- ed, was obtained from the said C. D. by the said A. B. (and others in collusion with him) by fraud, covin and misrepresentation, that is to say, by the said A. B. (and others in collusion with him) falsely and fraudulently representing to the said C. D. that, &c. [Here state the fraudulent misrepresentations, and that the deed was executed in confidence of such representations and conclude thus : to wit, at, &,c., aforesaid ; wherefore the said C. D. saith that the said deed in the said declaration mentioned, was and is void in law, and this he is ready to verify ; wherefore he prays judgment if he ought to be charged with said debt, by virtue of the said writing, &c. [Add a plea of fraud and covin generally, omitting a statement of the particular misrepresentations.^ (b). (a) It is said, that when the plea admits the validity of the deed, and that there was once cause of action, but avoids, or discharges it by mat- ter subsequent, the defendant should say, " actionem non,^' but where the validity of the deed is disputed, the defendant should say, " onerari non debet;" 1 Saund. 290, n. 3. (h) Fraud may be taken advantage of at Law; 2 T. R„ 755; 3 do. 438 ; 2 Bay, 11 ; 2 Chit. PI., 495 : See 13 Johns. Rep., 430 : See, also, Pleas in Bar in Assumpsit, No. 21, Ante. 136. 31 242 DEBT. Fleas in Bar. No. 7. Duress of Imprisonment. In Debt. And the said C. D. comes and defends, &-c., and says, that he ought not to be charged with the said debt by virtue of the said wri- ting obhgatory, because he says, that at the time of the making the said writing, he, the said C. D., was imprisoned by the said A. B. and others, by their covin, to wit, at, &,c., and there detained in prison until by force and duress of that imprisonment he the said C. D. then and there made, sealed and delivered the said writing to the said A. B., and this he is ready to verify ; wherefore he prays judgment if he ought to be charged by the said writing obligatory, and for his costs, &c. Replication. Defendant at large, ^c. And the said A. B. says that notwithstanding any thing by the said C. D. in pleading alleged, he ought to be charged with the said debt by virtue of the said wri- ting obligatory, because he says, that the said C. D. at the time of the making of the said writing obligatory was at large and at his full liberty and out of all prisons whatsoever, and that he made, sealed and delivered the said writing to the said A. B. of his own free will and accord, and not by force or duress of imprisonment, and this he prays may be inquired of by the country, &c. No. 9. Solvit ad diem. [Actio non, after craving oyer, as in No. 2, Ante. 238, — because he says that he the said C. D. on the said — day of — [The day of payment mentioned in the condition] paid to the said A. B. the said sum of — dollars in the said condition mentioned, together with all interest due thereon, according to the form and effect of the said con- dition, to wit, at — and this he is ready to verify ; wherefore he prays judgment if the said A. B. ought to have or maintain his said action against him, &c. No. 10. General Performance of Covenants in Indenture. [Actio non, after craving oyer, as in No. 2, Ante. 238, — because he says that there was not, nor is there any negative or disjunctive covenant or agreement, contained in the said indenture, in the said DEBT. 243 Pleas in Bar. condition of the said writing obligatory mentioned, on the part of the said C. D. to be omitted, done, observed, performed, fulfilled or kept, and that he the said C. D. hath truly performed and kept the said indenture, and all things therein contained, according to the true intent and meaning thereof: And this, &c. [Conclude as in No. 9, Ante. 242.] No. 1 1 . The like, where the Bond is for the performance of acts specified in the Condition.^ [Actio non, after craving oyer, as in No. 2, Ante. 238, — because he says, that he the said C. D. at all times since the making of the said writing obligatory, and the condition thereof, has truly kept and performed, all and singular, the articles, clauses, payments, conditions, and agreements in the said condition of the said writing obligatory mentioned, according to the true intent and meaning of the same ; and this, &c. [Conclude as in No. 9, Ante. 242.] No. 12. Nul tiel record. C— D— , ^ ads. >In Debt. A— B— , ) And the said C. D. comes and defends, &c., and says that there is not any record of the said supposed recovery in the said declara- tion mentioned, remaining in the said Court of — in manner and form as the said A. B. hath in his declaration alleged : and this he is ready to verify ; wherefore he prays judgment if the said A. B. ought to have or maintain his said action against him, &c. No. 13. Non Damnificatus.^ [Actio non, after craving oyer, as in No. 2, Ante. 238, — because he says, that the said A. B. hath not at any time since the making of (a) The defendant cannot plead the condition of the bond is merely performance of the condition, with- to indemnify, but where the condi- out praying oyer and setting out the tion is for the performance of any condition in hsec verba ; 2 Saund., particular act, the performance must 409, n. 2 : See 86, n. (a). be specially pleaded ; 1 Sau7id., 110, (b) This plea is sufficient when n. 1 ; Bos. and Pidl., 638, 640. 244 DEBT. Pleas in Bar. the said writing obligatory and condition thereof, hitherto been in any manner damnified, by means of any matter or thmg in the said con- dition mentioned ; and this, &c. [Conclude os in No. 9, Ante. 242.] No. 14. That a new Injunction Bond had been substituted in the place of the one sued upon : 6 Ohio Rep., 336. And now comes the said Lucius, one of the Attorneys of this Court, in his own proper person, and the said Joseph, by the said Lucius, his Attorney, and defend the wrong and injury when, &-c., and crave oyer of the said writing obhgatory in said declaration mentioned, and it is read to them, &-c., and also crave oyer of the condition of said writing obligatory thereunder written, and it is read to them, &c., as in said declaration set forth, and thereupon for plea in this behalf the said Lucius and Joseph say that the said plaintiffs ought not to have or maintain their aforesaid action against them, because they say that after the making of the said writing obligatory and the condition thereof aforesaid, and while the said bill of complaint mentioned in the condition thereof was pending in said Court, and while said Court of Common Pleas on the Chancery side thereof, had jurisdic- tion of all and singular the matters therein contained, and all the parties being before said Court, to wit, at the October Term of said Court of Common Pleas in the year 1831, said Court sitting as a Court of Chancery, on hearing of the parties in interest, by an inter- locutory decree then and there made in said cause as an equitable condition upon the parties in interest, did order and adjudge that said writ of injunction in the condition of the said writing obligatory mentioned and set forth in said declaration, be renewed and continued on the said Lucius' giving bond to the acceptance of the Clerk of said Court, in the sum of fifteen hundred dollars, as such equitable condition in the premises imposed by said Court upon the said Lucius, complainant in said Court, as an indemnity and security to the said Zenas and others, respondents in said cause, in the condition of said writing obligatory set forth in the event of a dismissal of said Bill of complaint and dissolution of said Injunction in said Court, in place of and as a substitute for the said writing obligatory in said declaration mentioned. And the said Lucius and Joseph in fact say that in compliance with said interlocutory decree and such equitable condition aforesaid, the said Lucius afterwards, to wit, on the fifteenth day of February, 1832, did give a bond with one Joseph DeWolf, Junior, and William Coolman, Junior, as sureties, to the acceptance of the Clerk of said Court, in the sum of fifteen hundred dollars, as an indemnity and security to the said Zenas and others respondents in said cause, in DEBT. 245 Pleas in Bar. the condition of said writing obligatory mentioned, in the event of a dismissal of said Bill of complaint, and dissolution of said Injunction in said Court according to the usages and practice of said Court, sit- ting as a Court of Chancery, and in obedience to the order and judg- ment of said Court aforesaid in the premises, which said last mention- ed bond so given, delivered and accepted in place of and as a sub- stitute for the said writing obligatory in said declaration mentioned, indemnifying and securing said Zenas and others aforesaid, still re- mains in and among the files of said Court, sitting as a Court of Chancery, and this the said Lucius and Joseph are ready to verify ; wherefore they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against them, &c. And the said Lucius and Joseph, for a further plea in this behalf, further defend the wrong and injury when, &c., and by leave of the Court for that purpose first had and obtained, further say that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them the said defendants, because they say that after the execution of the Bond and writing obligatory, and the condition there- under written in said declaration mentioned, and after such proceed- ings were had in the said cause, and the same carried by appeal to the Supreme Court, and after the said Lucius did not prosecute his said suit with effect as is in said declaration mentioned, according to the condition of said writing obligatory, to wit, at a term of the said Supreme Court begun and holden at Ravenna, in and for said county, as is in said declaration set forth, they the said Lucius com- plainant in said suit, and the said Lucius, Darius, Cyrus, Isaac, and Jonathan, respondents in said suit being present in said Court, upon a final hearing in said suit, submitted all and singular the premises, matters and things touching or growing out of said Bill of complaint and suit, and the proceedings arising thereon to the final decision of said Court, .which said Court then and there determined and decreed that said Injunction be dissolved and the said bill dismissed as is in said declaration set forth, and further determined and decreed on said final hearing by reason of the dissolving said Injunction and dismissing said bill, and by reason that the said Lucius had failed to prosecute his said suit to effect as in the condition of said writing obligatory, and provided that the said Lucius should pay the costs of said suit to be taxed, which vvere then and there adjudged to the said Zenas and others, respondents in said suit, with their assent, and made no other or further order or decree on the final hearing afore- said. And the said Lucius and Joseph, defendants in this suit, in fact say that afterwards, to wit, on the — day of October, in the year 1832, and before the commencement of this suit, he, the said Lucius, did pay, in compliance with the conditions of said writing obligatory, and the determination and decree of said Court as aforesaid, the full 346 DEBT. Pleas in Bar. amount of all moneys, damages, losses, injuries and costs charged and decreed against him by said Court, on the final hearing of said suit as aforesaid, which were then and there accepted by the said Zenas and others, respondents, as by the condition of the said writing obligatory and determination and decree of said Court, he, the said Lucius, was bound to do, and this the said Lucius and Joseph are ready to verify ; wherefore they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against them, and if they the said defendants ought to be charged with the said debt by virtue of said supposed writing obligatory, &c. No. 15. Plea of the Statute of Limitations of a Sistei' State; 7 Ohio Rep. 246, Part 1st. And for a further plea in this behalf, the said Elias Shiphy by leave of the Court here for this purpose first had and obtained, according to the form of the Statute in such case made and provided, says, that the said plaintiff ought not to have or maintain his aforesaid action there- of against him, because he says that by a certain Law of the State of Maryland, made at a session of an Assembly begun and held at the city of Annapolis, for the province of Maryland, on the 10th day of July, in the 15th year of the Dominion of the right Honorable Charles, abso- lute Lord and Proprietor of the provinces of Maryland and Avalon, Lord Baron of Baltimore, &c., and ended on the 8th day of August, A. D. 1729, entitled "an additional and supplementary act to the several acts for the administration of justice in testamentary affairs," it was, among other things, enacted, " That all actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds, and not after," which said enactment, so recited as aforesaid, hath been from the passage thereof and still is the law of the land of said State of Maryland ; and the said defen- dent doth aver that the said writing obligatory in the plaintiff's declaration mentioned, was made within said State of Maryland, and this defendant and said Charcella, and the other parties thereto, at the time of the making and passing of said writing obligatory, were residents without this State, and within the State of Maryland, to wit, on the said sixth day of December, A. D. 1817 ; and the said de- fendant doth further aver that this action was not commenced within twelve years after the passing of said bond or writing obligatory in the plaintifi"'s declaration mentioned; and this he is ready to verify; wherefore he prays judgment if the said plaintiff ought further to maintain the aforesaid action thereof against him, &c.'' (a) See Pleas in Bar in Assumpsit, No. 3, Ante. 120. DEBT. 247 Trial by Jury. — Verdicts. No. 16. That the Recognizance declared upon was taken without authority ; 15 Ohio Rep. 579. And for further plea in this behalf by leave of the court here first had and obtained, the said defendant saith the said plaintiflf her ac- tion aforesaid ought not to have or maintain, because he says that on the seventeenth day of January, 1844, the time when said bond or recognizance was taken by the said Robert Moore, and before and after that time, the said Court of Common Pleas, before whom said indictment set forth in the declaration set forth was.found and return- ed was in session, it being then the January Term of said Court, in the year eighteen hundred and forty-four, for the transaction of crim- inal business, and which Court had then and there jurisdiction of of- fences committed against the State of Ohio, and full and complete power and authority to admit persons charged with the commission of crimes to bail ; wherefore he says the said Robert Moore, as one of the judges of said Court of Common Pleas, had no authority to take said supposed recognizance, or bond, or obligation, for the pur- pose aforesaid, and this he is ready to verify ; wherefore he prays judgment if the said plaintiff her action aforesaid ought to have or maintain, &c. For other Pleas in Bar, See Pleas in Bar in Assumpsit, Ante. 116. For Demurrer, See Demurrer in Assumpsit, Ante. 145. Trial by Jury — Verdicts. For General Rules regulating trials by jury, See Trials in As- sumpsit, Ante. 150. Verdicts for Plaintiff. For general Rules regulating Verdicts, See Verdicts in Assump- sit, Ante. 151. No. 1. Verdict for Plaintiff on Nil Debet. A— B— , ^ V. V In Debt. C— D— , ) This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F. &,c., who being empannelled and sworn the truth 248 DEBT. Verdicts for Plaintiff. to speak upon the issue joined between the parties, upon their oaths do say,* that the said C. D. doth owe to the said A. B. the sum of — * dollars in manner and form as the said A. B. hath complained against him ; and they assess the damages of the said A. B. by rea- son of the detaining the said debt to — dollars ; Therefore it is con- sidered, 6lc.^ No. 2. Verdict f 07' Plaintiff', on Non est factum. [Proceed as in No. 1 , Ante. 247, to the (*) — that the said wri- ting obligatory is the deed of the said C. D. as the said A. B. hath complained against him, and they assess the damages of the said A. B. by reason of the premises to — dollars ; Therefore, &c. No. 3. Verdict for Plaintiff, on Solvit ad Diem. [Proceed as in No. 1, Ante. 247, to the (*) — that the said C. D. did not pay to the said A. B. the said sum of — dollars^ or any part thereof, on the — day of — , in the condition of said writing obligatory mentioned, according to the form and effect of the said condition, in manner and form as the said C. D. hath alleged : and they assess the damages of the said A. B. by reason of the premises to — dollars ; Therefore, &c. (a) In debt upon simple contract, stands admitted on the record, and single bills, and other like cases, the for the damages as assessed by the jury, as in assumpsit, find the sum jury. The same rule must prevail total due to the plaintiff'. The dam- where solvit ad diem, nid tiel record, ages in such cases are, in general, or any other plea is pleaded, Avhich merely nominal, See Declarations in if found for the plaintiff', leaves the Debt, No. 1, Ante, 192. debt, being a sum certain, confessed Where the action is founded on a upon the record. See Judgments specialty, &c. giving a sum certain in Debt, Post, as a penalty, and the defendant pleads JVon est factum, which is found a- (b) If there be a motion for a new gainst him, the verdict ought not to trial, or in arrest of Judgment, such find the debt; because AW est fac- motion is entered thus : " and there- tum, puts in issue only the deed, and upon the said defendant movesybr a that issue being found for the plain- new trial, or, in arrest of judgment, tiff, the debt stands admitted of rec- for reasons on file^'' and the judg- ord, and the jury merely assess the ment on the verdict is postponed un- damages occasioned by the detention til the motion is disposed of. A par- of the debt. The judgment is there- ty cannot move for a new trial after upon rendered for the debt, as it a motion in arrest of judgment. DEBT. 249 Verdicts for Defendants. Verdicts for Defendant. No. 4. Verdict for Defendant, on Nil Debet. [Proceed as in No. 1, Ante. 247, to the (*) — that the said C. D. doth not owe to the said A. B. the said sum or sums of money de- manded by him, or any part thereof, in manner and form as he hath complained against him ; Therefore, &c. No. 5. Verdict for Defendant, on Non est factum. [Proceed as in No. 1, Ante. 247, to the (*) — that the above mentioned writing obligatory is not the deed of the said C. D. as the said A. B. hath in that behalf alleged ; Therefore, &c. No. 6. Verdict for Defendant, on Notice of Set-off, under Non est factum. [Proceed as in No. 1, Ante. 247, to the (*) — that the said wri- ting obligatory is the deed of the said C. D. as the said A. B. hath alleged, and they assess the damages of the said A. B. by reason of the premises to 300 dollars ; and the jury aforesaid do further say, that the said A. B. doth owe to the said C. D. the sum of 800 dol- lars, parcel of the said several sums above demanded by the said C. D. in his notice of set-off aforesaid, and doth not owe the residue thereof; and so the said jury find, that a balance of 500 dollars is due from the said A. B. to the said C. D. after allowing and crediting to the said A. B. the said sum of 300 dollars, his damages aforesaid, in form aforesaid assessed ; Therefore, &c. For Verdicts in Debt on Bond, &c., under the Statute, See Post Judgments in Debt, No. 9. For the Forms of other Verdicts, See Verdicts in Assumpsit, Ante. 153. Judgments for Plaintiff. For general Rules regulating Judgments, See Judgments in As- sumpsit, Ante. 163. For Forms of Judgments on Demurrers, to Pleas, Replications, &.C., in Abatem£nt, See Judgments in Assumpsit, Ante. 168. 32 250 DEBT. Judgments for Plaintiff. No. 1 . Judgment for Plaintiff, on Demurrer to Declaration on simple contracts, single bonds, fyc, damages assessed by Jury. A— B— C- In Debt. This cause came on to be heard upon the demurrer of the defend- ant to the plaintiff's declaration, and was argued by counsel, and the Court being fully advised in the premises, are of opinion that the matters contained in the declaration are sufficient in law for the said A. B. to maintain his said action against the said C. D., whereupon It is considered, that the said A. B. ought to recover his debt against the said C. D. and his damages by reason of the detention thereof; but because the said debt and damages are to the Court unknown, it is ordered that a jury be empannelled to inform the Court of the same, *' and thereupon a jury being called came, to wit, E. F., &c., who being empannelled and sworn to inquire as well of the said debt as of the said damages, upon their oaths do say, that the said C. D. doth owe to the said A. B. the sum of — dollars, and they assess his damages by reason of the detention thereof to — dol- lars ; Therefore It is considered that the said A. B. recover of the said C. D. the sum of — dollars his debt aforesaid and the said sum of — dollars his damages aforesaid, and also his costs in this behalf expended taxed to — dollars. See Judgments in Assumpsit, No. 3, Ante. 169, notes (a) and (b) ; and No. 21 and 22, Ante. 178, notes (a) and (b). No. 2. Judgment for Plaintiff, by Default, on simple contract, single bonds, &fc. Debt found and Damages assessed by Court. In Debt. This day came the said A. B. by his attorney and the said C. D. (a) The Verdict is not commonly precedent to the *. Afterwards when taken immediately upon the rendi- the verdict is taken, proceed thus : tion of the judgment upon the de- " This day came again the parties by murrer, but at a svbsequent day or their attorneys and thereupon a jury- term. In such case the judgment is being called came,towit, E. F. &c." entered upon the demurrer, at the \_Conchule as above.'] time of its rendition, as in the above DEBT. 251 Judgments for Plaintiff. though solemnly called came not but made default ; whereupon It is CONSIDERED that the said A. B. ought to recover his debt against the said C. D. and his damages by reason of the detention thereof, and thereupon * neither of the parties requiring a jury, and the Court being fullv advised in the premises do find that the said C. D. doth owe to the said A. B, the sum of — dollars, and do assess his dam- ages by reason of the detention thereof to — dollars ; Therefore, &c. [Conclude as in No. 1. Ante. 250.] No. 3. The like, Debt found and Damages assessed by the Jury. [Entei' the judgment by Default as in No. 2. Ante. 250, to the* — the said A. B. a?', the said C. D. demanding a jury, it is ordered that a jury be empannelled to inform the Court of the debt and dam- ages aforesaid, &c. [Concltide as in No. 1, Ante. 250.] No. 4. Judgment for Plaintiff', on Nil Debet. [Enter Verdict as in No. 1, Ante. 250, — Therefore it is con- sidered that the said A. B. recover of the said C. D. the said sum of — dollars his debt aforesaid, and the said sum of — dollars, his dam- ages aforesaid, and also his costs, &-c. [Conclude as in No, 1, Ante. 250.] No. 5. Judgment f 01' Plaintiff on submission to the Court to try the Issue and assess Damages. A— B— , 1 V. >In Debt. C— D— , ) This day came the parties by their attorneys and submit this cause to the Court upon the issue joined, and the Court being fully advised in the premises, do find that the said C. D. doth owe to the said A. B. the sum of — dollars, and do assess his damages by reason of the detention thereof to — Therefore It is considered, &c. [Con- clude as in No. 1, Ante. 250.] 252 DEBT. Judgments for Plaintiff. No. 6. Judgment for Plaintiff, by Confession, relicta verifi- catione. A— B— , ^ V. Vin Debt. C— D— , ) This day came the parties by their attorneys, and thereupon the said C. D. relinquishing his plea, says that he cannot deny the action of the said A. B. nor but that he the said C. D. doth owe to the said A. B. the sum of — dollars, and confesses that he the said A. B. hath sustained damages by reason of the detention thereof to — dollars; Therefore It is considered, &c. [Conclude as in l^o. 1, Ante. 250.] No. 7. Judgment for Plaintiff, on Non est factum. [Enter Verdict as in No. 1, Ante. 250, — Therefore it is consid- ered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid, and also his costs, &-c. [Conclude as in No. 1, Ante. 250.] No. 8. Judgment for Plaintiff^, on Nul tiel record. A— B— , ) V. V In Debt. C_ D— , ) This day came the parties by their attorneys and the record afore- said being inspected by the Court, it sufficiently appears that there is such a record of recovery against the said C. D. at the suit of the said A. B. as he hath alleged; whereupon It is considered that the said A. B. ought to recover his debt aforesaid and also his damages by reason of the detention thereof,* but because the said damages are to the Court unknown, it is ordered that a Jury be empannelled to inform the Court of the same ; and thereupon a Jury being called to come, to wit, E. F., &,c., who being empannelled and sworn to inquire of the said damages do assess the same to — dollars ; There- fore, It is considered, &c.'' [Conclude as in No. 1, Ante. 250.] (a") If Damages are assessed by Court being fully advised in the the Court, proceed as above to the *, premises do assess the same to — and then say, " and thereupon nei- dollars." Conclude as in No. 1, An- ther party requiring a Jury, and the te. 250. DEBT. 253 Judgments for Plaintiff. The assignment of Breaches, and proceedings upon Judg- ments, BY DEFAULT, CONFESSION AND DEMURRER, UNDER THE STATUTE : Swan's Stat., 659, 660. No. 9. Verdict and Judgment for Plaintiff^, where the Breaches, are assigned in the Declaration, and issue taken to the Country. A— B— , ^ V. \ In Debt. . C— D— , ) This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say, that the said writing obhgatory is the deed of the said C. D. as the said A. B. hath in that behalf alleged ; and they do further say, that, " the said C. D. did not," &c. \Here state what the defendant did, or omitted to do, as alleged in the assignment of breaches ;] and the said jury do further say that said A. B. hath sus- tained damages by reason of the premises to — dollars ; Therefore It is CONSIDERED that the said A. B. recover of the said C. D. the said sum of — dollars his debt aforesaid [The penalty of the bond] : and it is further ordered that execution issue herein against the said C. D. for the said sum of — dollars, the damages aforesaid, by the jury aforesaid assessed, and also for — dollars the costs of the said A. B. in this behalf expended, &c.'' [Conclude a* in No. 1, Ante, 250. See Declarations in Debt, No. 8, note (a). Ante. 1 97,] (a) When the plaintiff declares for And the said plaintiff now cofties the penalty alone, and the defendant, and for assigning breaches of the con- after oyer of the condition, pleads dition of the said writing obligatory, non est factum, upon which issue is according to the Statute in such case joined, the plaintiff may then assign made and provided, says. That, &c,, his breaches, and thereupon the ver- [^Specifying the particidars as in diet and judgment follow as in the JDeclarations, No, 8, Ante, 197,] above precedent : 8 T. B. 255 ; 2 The issue is then tried, and Verdict Saund., 187, n, 2, The Form of as- and Judgment entered as in the above signment may be as follows : Precedent, L— B— ,^ ^- D— ,J A— B— , Mn Debt. C- 254 DEBT. Judgments for Plaintiff. No. 10. Judgment for Plaintiff, for the amount equitably due found by the Court, after Judgment by Default. In Debt. This day came the said A. B. by his attorney and the said C. D. though solemnly called came not but made default : Whereupon It IS CONSIDERED that the said^A. B. ought as well to recover against the said C. D. his debt, as also to have execution for so much thereof as may be due according to equity ;* and thereupon neither party demanding a jury, the Court being fully advised in the premises, do find that the sum of — dollars is now due from the said C. D. to the said A. B. according to equity : Therefore It is considered that the said A. B. recover of the said C. D. the said sum of — dollars, his debt aforesaid [the penalty of the bond] : and it is further ordered that execution issue herein against the said C. D. for the said sum of — dollars, the amount now due as aforesaid according to equity, and also for — dollars, the costs of the said A. B. in this behalf expended, &c. [Conclude as in No. 1, Ante. 250. See, Ante. 197, n. (a). The proceedings after judgment by Confession, and on Demurrer, are substantially the same as in this Precedent.] No. 1 1 . The like, when Breaches are not assigned in the Decla- ration. [P7'0ceed as in No. 10, to the * — but because judgment hereof should not be given until the truth of certain breaches hereafter to be assigned by the said A. B. shall be inquired into, and the amount equitably due to the said A. B. by reason of those breaches shall be ascertained, therefore let judgment hereof be stayed until such time as the said premises shall be ascertained. [After the judgment is thus taken Breaches are to be assigned as follows :] " And the said A. B. now comes and says that the said writing obligatory in said declaration mentioned was subject to a certain condition thereunder written, whereby after reciting, &c." [Here state the recitals and assign the breaches as in Declarations No. 8, Ante, ] 97.] Then follows the final Judgment, thus : " And now comes again the said A. B. by his attorney, and neither party demanding a jury," 6ic. [Conclude as in No. 10.] DEBT. 255 Judgments for Defendant. No. 12. Judgment for the amount equitably due found by Jury after Judgment by Default. [Proceed as in No. 10, Ante. 254, to the (*) — and thereupon the said A. B. or, the said C. D. demanding a jury to ascertain tiie same, a jury being called come, to wit, E. F., &c., who being empan- nelled and sworn to ascertain the amount now equitably due to the said A. B. by reason of the premises, upon their oaths do say that the sum of — dollars is now due by reason of the premises to the said A. B. according to equity : Therefore It is considered, &c. [Conclude as in No. 10, Ante. 254] Judgments for Defendant. Judgment for Defendant on Nil Debet. [Enter the Verdict as in No. 4, Ante. 249, and then say. There- fore It is considered that the defendant go hence thereof without day and recover of the plaintiff his costs in this behalf expended taxed to — dollars. For other Judgments in favor of Defendant, See Judgments for Defendant in Assumpsit, Ante. 176. 256 COVENANT. Summons. COVENANT." The action of Covenant is, in general, commenced like the action of Assumpsit, by suing out a Summons, or Capias ad respondendum. 1. Summons. The Summons is issued, as a matter of course upon filing a Prae- cipe with the Clerk of the proper Court. See Prmcipe in Assump- sit, Ante. 12. Precipe for Summons in Covenant. In Covenant. Damages — dollars. Issue a Summons returnable [forthwith, if in Term time, or, at (a) What Covenants a purchaser of real estate is entitled to ; 25 Eng. Com. Law Rep. 266. A power " to sell," implies a power to bind the principal by general warranty ; 1 J, J. Marsh. 293. Covenant for a good deed means a good title in a particular case ; 17 Wend. 244 ; See 6 Paige, 411 ; 16 Johns. 268; 20 c/o. 130 ; 4 Paige, 628. Cove- nant for a "good deed" requires a general warranty ; 2 Bibb, 171 ; 3 Bibb, 317. So a "good and sufficient deed;" 4 Bibb, 453. "Good and sufficient title " to land, calls for proper covenants, unless the title fromGovernment is shown ; 1 Marsh. 297. A covenant to convey by deed of special warranty implies a regular legal title from Government, and if there be none such, the covenant is broken ; 4 J. J. Marsh. 476. The legal effect of a special warranty ; Jd. Whether a special demand for a deed is necessary when no time is fixed, and it is not expressed to be on demand ; 3 Monroe, 178. A covenant for a " lawful title " calls for a perfect title with general warranty ; 1 Blackf. 379. Offer to perform a building covenant, and refusal, is equivalent to performance : 2 Hall, 167. A deed is not to be tendered by Ven- dee ; 14 Pet. 322. Case hes, though there be covenants, against incum- brances if there were fraudulent rep- resentations ; 15 ?Fewc/. 425. Cove- nant, not debt, lies for installments ; 1 Hen. Bl. 548 ; Co. Lilt, 292 (b). In covenant for not conveying lands, if the defendant plead the tender of a deed at, &c., the plea should make profert of the deed ; 1 Bibb, 283. For Cases in Ohio, See Wilcox's Digest, 163. COVENANT. 257 Capias ad Respondendum. next Term, if in vacation.'\ Indorse, " Suit brought, &c." See Prcecipe in Assumpsit, Ante. 12. T. S. Atty. ior Pltff. To tlie Clerk of — Common Pleas. Dated, &c. Writ of Summons. The State of Ohio, To the Sheriff of — County, Greeting : We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith, [if in Term time,] or, on the first day of their next Term, [if in vacation,] to answer unto A. B. in a plea of cov- enant broken. Damages — dollars ; and have you then there this writ.* Witness, F. C, Clerk of our said Court of Common Pleas, at C. this — day of — , A. D. — . F. C. Clerk. For the Form of Alias, Pluries, and Testatum Summons, See Ante. 15. ^ II. Capias ad respondendum. When a Capias may be sued out, See Ante. 20. Precipe for Capias. In Covenant. Damages — dollars. Issue a Capias ad respondendum returnable forthwith, [if in Term time,] or, at the next Term [if in vacation.] Indorse, " Suit brought, &,c." See Prcecipe for Capias in Assumpsit, Ante. 21. (a) For the proper Indorsement, See Summons in Assumpsit, Ante. 14. 33 258 COVENANT. Declarations. • Hold to bail in the sum of — dollars, [double the amount sworn to.] To the Clerk of — Common Pleas. Dated, &c. T. S. Atty. for PItfi'. For tlie ])roj)er Affidavits, S:,c., Sek Capias in Assumpsit, Ante. 21, 23. Writ of Capias ad kespondenbum. The State of Ohio, To the Sheriff of — County, Greeting : We command you to take C. D. if he may be found in your baili- wick, and him safely keep, so that you have his body before our Court of Common Pleas of the County aforesaid, at the Court House in said County, forthwith, or, on the first day of next Term, to answer unto A. B. in a plea of covenant broken. Damages — dollars ; and have you then there this writ. Witness, F. C, Clerk of our Court of Common Pleas, at C. this — day of — A. D. — . F. C. Clerk. For the proper indorsements to be made upon this writ, the Forms of an Alias, Plwies, and Testatum Capias, Bail Bond to the Sher- iff, Recognizance of Special Bail, Bail piece, and Appearance of De- fendant, &c.. See Ante. 22 to 35. Declarations. No. 1. Lessor against Lessee for rent, upon an Indenture. Supreme Court, or Court of Common Pleas, — Term. [The Term to which the writ ivas — County, ss. <( returned, or, the Term at which the cause was brought into Court, by Appeal or Certio7'ari,] ^A. D.—. A. B. Complains of C. D.'' in a plea of Covenant, for that where- (a) For Forms of Commencement, 36 : Also, Declarations in Assump- Description of parties, &c., See sit on Promissory Notes, Ante. 46. Common Counts in Assumpsit, Ante. COVENANT. 259 Declarations. as * on — at — , by a certain indenture then and there made between the said A. B. of the one part, and the said C. D. of the other part, one part of which said indenture, sealed with the seal of the said C. D. the said A. B. now brings into Court,'' the said A. B. did demise and lease unto the said C. D. his executors, administrators and assigns, a certain messuage or dwelling house, with appurtenances,'' to have and to hold the same from — to — yielding and paying therefor yearly and every year to the said A. B. his heirs or assigns the sum of — dollars on the — day of — in each and every year. And the said C. D. did thereby for himself, his executors, administrators, and assigns, covenant and agree to and with the said A. B. his heirs and assigns, that the said C. D. his executors, administrators or assigns would pay or cause to be paid to the said A. B. his heirs or assigns, the said yearly sum of — dollars at the several days and times afore- said. By virtue of which demise the said C. D. afterwards, to wit, on — , entered into the said premises and was thereof possessed for the term aforesaid f And the said A. B. avers that during the said term, to wit, on — a large sum of money, to wit, the sum of — dol- lars, of the rent aforesaid, for — years of the term aforesaid, then elapsed, was and still is in arrears and unpaid, contrary to the true in- tent and meaning of the said indenture and of the said covenant of the said C. D. And so the said C. D. hath not kept his covenant aforesaid, but hath broken the same, to the damage of the said A. B. — dollars, [the amount stated in the writ] ; and therefore he sues, &c. By. T. his Atty. No. 2. The like, upon Articles of Agreement. [Proceed as in No. 1, Ante. 258, to the (*) — on — at — by certain articles of agreement then and there made and concluded by and between the said A. B. and the said C. D. sealed with their re- spective seals, and now to the Court here shown, the said A. B. did lease to the said C. D. In-lot in the town of — in County of — afore- said. Number — with the appurtenances thereto belonging, for the (a) For Rules regulating Profert, variance it is advisable not to state See- Declarations in Debt, Ante, the abuttals or any other particular 193. description ; 1 Saund. 238, n. 2 ; 2 Saund. 366, n. \. (b) " Certani tenements with the appurtenances particularly mention- (c) If there be a condition prece- tioned and described in the said in- dent, performance must be specially denture, situate, &c." is a sufficient shown. description ; and in order to avoid a 360 COVENANT. Declarations. term of one year, commencing the 1 st day of April then next. And the said C. D. did thereby covenant and agree to and with the said A. B. to pay him the sum of — dollars, at the expiration of said term, for the rent of said premises : And the said A. B. says that the said C. D. afterwards, to wit, on — entered upon said premises and was thereof possessed for the term aforesaid ; and the said A. B. fur- ther says that though the said term has long since elapsed : yet the said C. D. hath not paid the sum of — dollars, nor any part thereof: And so the said C. D. hath not kept his said covenant, but hath bro- ken the same ; To the damage, &c. [Conclude as in No. 1, Ante. 258. No. 3. Grantee against Grantor, on Covenants of Seisin, Power to Convey, Warranty, &fc.^ [Proceed as in No. 1 , Ante. 258, to the (*) — the said C. D. on — at — by his deed of that date, sealed with his seal, and duly executed and delivered, and now to the Court here shown, in consideration of — dollars, bargained, sold and conveyed to the said A. B. his heirs and assigns, a certain tract of land, situate, &c. [description.] To have and to hold the same to the said A. B. his heirs and assigns for- ever : And the said C. D. did by the same deed covenant to and with the said A. B. his heirs and assigns, that at the time of the ensealing and delivery of the said deed, he the said C. D. was seized in fee simple of the aforesaid lands, and had good right and lawful authori- ty to sell and convey the same in manner aforesaid, and that the said A. B. his heirs and assigns, from thence forward, should by force of that deed, lawfully possess and quietly enjoy the said premises^ free of and from all incumbrances ; and also that he the said C. D. his heirs, executors and administrators, would warrant and defend the same premises to the said A. B. his heirs and assigns, against all lawful claims whatsoever.* And the said A. B. avers, that the said C. D. at the time of the ensealing and delivery of the said deed, was not seized in fee simple of the aforesaid lands, nor had he then and there good right and lawful authority to sell and convey the same in man- ner aforesaid, nor could the said A. B. by force of the said deed, law- fully possess or quietly enjoy the same, free of and from all incum- brances, nor hath the said C. D. warranted and defended the same premises to the said A. B. against all lawful claims whatsoever, but on the contrary thereof, the said A. B. says, that at the time of enseal- ing and delivery of the said deed, the paramount title and freehold (a) For Rules regulating actions Where the English and American upon Covenants in Deeds of Convey- cases are collected, See, also, Ante, ance, See 10 Ohio Rep. 317, note a. 256, note a. COVENANT. 261 Declarations. in the said premises was in other persons than the said C. D. by vir- tue of which said paramount title, the said A. B. afterwards, to wit, on — at — was evicted out of and from the said premises : and so the said C. D. hath not kept his said covenants, but hath broken the same : To the damage, &c. [Conclude as in No. 1, Ante. 258. No. 4. The like, by Assignee of Grantor against Grantee: 10 Ohio Rep., 442.^ Jacob Williams, defendant, was summoned to answer George W. Tapscott and Margaret B. Tapscott, his wife, plaintiffs, in a plea of Covenant ; Whereupon the said plaintitis by — their attorney, com- plain for that whereas the said Jacob WilHams, on the fifteenth day of March, in the year 1816, at the county of Hamilton aforesaid, by his deed of that date sealed with his seal and duly executed and deliv- ered, and now to the Court here shown, in consideration of four thou- sand four hundred and seventy-five dollars, bargained, sold and con- veyed to Samuel W. Davies, his heirs and assigns forever. The soutli part of Lot number 98, in Cincinnati, Beginning on Main street at the centre of an alley adjoining the brick house formerly owned by James C. Morris ; thence northwardly on Main street 40 feet, and extending back eastwardly the same width in rear as in front, 198 feet, or the depth of the Lot No. 98, so as to include the brick house built by said Jacob Williams : To have and to hold the premises aforesaid so bargained and sold, and every part thereof, to the said Samuel W. Davies, his heirs and assigns forever. And the said Jacob Williams did by the same deed, covenant to and with the said Samuel W. Davies, his heirs, executors, administrators and assigns, that he the said Jacob Williams was then the true and lawful owner of the prem- ises so thereby granted, and had good right, full power, and lawful authority to sell and convey the same in fee simple, and that he, the said Jacob Williams would warrant and forever defend the aforesaid premises with their appurtenances, and every part and parcel thereof to the said Samuel W. Davies, his heirs and assigns, against all lawful claims whatsoever. And afterwards, to wit, on the 16th day of February, in the year 1820, at the county of Hamilton aforesaid, the said Samuel W. Davies, by his deed qf that date sealed with his seal and duly execu- ted and delivered, and now to the Court here shown, in consider ation of five thousand dollars, bargained, sold and conveyed, the (a) In this case the plaintiff was fore severance, one of thein cannot defeated, on the ground that when sue alone on the Warranty for his lands descend to co-parceners Avith share of the damages, warranty, and they are evicted be- 262 COVENANT. Declarations. same lot of ground and the improvements thereon to plaintiff 's father, Arthur St. Clair, to hold to him and his heirs and assigns forever. And the said plaintiffs aver that in the month of September, 1820, the said Arthur St. Clair, then in full possession of said premises, died leaving the said Margaret B., (who has since intermarried with said George W. Tapscott,) Arthur St. Clair, John St. Clair, Eliza L. St. Clair, Frances M. St. Clair and Laura St. Clair, being six in number, his heirs at law : And the said plaintiffs also further aver that at the time of the ensealing and delivery of the said deed to Samuel W. Davies, he the said Jacob Williams was not lawfully seized in fee simple of the aforesaid premises, nor had he then and there good right and lawful authority to sell and convey the same in manner aforesaid, nor could the said Margaret B., one of the said plaintiffs and one of the said six heirs at law of the said Arthur St. Clair deceased, by force of said deed lawfully possess or quietly enjoy the same free of and from all incumbrances, nor has the said Jacob Wil- liams warranted and defended the same premises to the said Mar- garet B. against all lawful claims whatsoever, but on the contrary thereof the said plaintiffs say that at the time of the ensealing and delivery of the said deed, the paramount tide and freehold in said premises was in other persons than the said Jacob Williams, by virtue of which said paramount title the said Margaret B. (then sole and unmarried) afterwards, to wit, on the 13th day of July, 1833, was evicted out of and kept out of and from one-sixth part of the one- fourth part of said premises undivided, and afterwards, on the first day of September, 1837, was, with the said George W. Tapscott, evicted out of and kept out of the one-sixth part of the three-fourths part of said premises. And so the said Jacob Williams has not kept his said covenants, but has broken the same ; To the damage of the said plaintiffs of six thousand dollars, and therefore they sue, &c. No. 5. Administratrix of Assignee of Lessor against Lessee for Rent: 14 Ohio Rep., 606." Thomas Smith was summoned to answer unto Abigal R. Jones, Administratrix of Samuel T. Jones, in a plea of covenant broken ; And now comes the said Abigal R. Jones, as administratix of said Samuel T. Jones, deceased, intestate, and Qomplains of the said Thomas Smith, for that whereas heretofore, to wit, on the 25th day of May, A. D. 1835, at Licking county aforesaid, by certain articles of agreement then and there made and concluded by and between (a) This Declaration was held sub- personalty cannot be assigned so as stantially good, though the plaintiff to give a right of action to the as- was non-suited on the ground that signee. COVENANT. 263 Declarations. one John W. Dixon, of the one part, and the said Thomas Smith and one George Gray, who has since deceased, of the other part, 5-ealed with their respective seals, (and now to the Court here shown,) the said John W. Dixon did lease, to the said Thomas and Georoe, a certain two story brick house and all the appurtenances thereunto belonging, situate on Lot No. 8, in the town of Lynnville and county aforesaid, together with a certain quantity of household furniture, viz, four beds, bedding and bedsteads, eight window curtains, one settee, two looking glasses, one stand, one lot of carpeting, one mantle clock, one large dining table, one kitchen ditto, bar furniture, &-c., for the term of five years, commencing on the said 25th day of May, A. D. 1835 ; And the said Thomas and George did thereby jointly covenant and agree to and with the said John W. Dixon, his heirs, executors, administrators or assigns, to pay him the sum of one hund- red and twenty dollars for each and every year of said time, the same to be paid quarterly, for the rent of said premises ; And the said plaintiff says that the said Thomas afterwards, to wit, on the day and year last aforesaid, entered upon said premises and was thereof possessed for the term aforesaid ; And the said plaintiff further says that afterwards, to wit, on the 4th day of September, A. D. 1837, at Licking county aforesaid, by his deed of that date sealed with his seal and now to the Court here shown, the said John W. Dixon, together with his wife Susan, in consideration of the sum of five hundred dollars bargained, sold and conveyed the said described premises, together with all and singular the hereditaments and appur- tenances thereunto belonging, or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title and interest, claim or demand whatsoever, of them the said John and Susan his wife, either in law or equity in and to the same to the said intestate, to have and to hold to him and his heirs and assigns forever, of all which the said defendants then and there had notice ; By means whereof the said defendant became liable to pay to him, the said intestate, the said several sums of money according to the tenor and effect of said articles of agreement ; And the said plaintiff further says that though the said term has long since elapsed, yet neither the said defendant nor the said George Gray, in his life time, have paid to the said intestate, in his life time, or to the said plaintiff, as his administratrix, the said sum of one hundred and twenty dollars for each and every year of said term, nor any nor either of them, nor any part thereof; And so the said plaintiff in fact says that the said defendant hath not kept his said covenant, but hath broken the same. And also for that whereas afterwards, to wit, on the said 25th day of May, A. D. 1835, at Licking county afore- said, by certain other articles of agreement then and there made and entered into by and between the said John W. Dixon of the one 264 COVENANT. Pleas in Abatement and in Bar. part, and the said Thomas Smith and George Gray, who has since deceased, of the other part, sealed with their respective seals, and now produced here in Court, the said John W. Dixon did lease to the said Thomas and George, a certain other two story brick building, and all the appurtenances thereunto belonging, situate on Lot No. 8, in the town of Lynnville, in said county, together with a certain quantity of household furniture, viz, four beds, bedding and bed- steads, eight window curtains, one settee, two looking glasses, one stand, one lot of carpeting, one manUe clock, one large dining table, one kitchen ditto, bar furniture, &c., for the term of five years, com- mencing the said 25th day of May ; And the said Thomas and George did thereby covenant and agree to and with the said John W. Dixon, his heirs, executors, administrators and assigns, to pay him the sum of one hundred and twenty dollars per year, to be paid quarterly, for the rent of said premises ; By virtue of which demise the said Thomas afterwards, to wit, on the said 25th day of May, entered upon said premises and was thereof possessed for the term aforesaid ; And the said plaintiff says that afterwards, to wit, on the 4th day of September, A. D. 1837, at said county, the said John W. Dixon did assign, transfer, and set over to the said intestate, the cov- enants in said articles of agreement last mentioned contained, for a valuable consideration then and there by the said intestate paid to the said John, of which the said defendant then and there had notice ; And the plaintiflf further says that by virtue thereof, afterwards, to wit, on the 25th day of May, A. D. 1840, a large sum of money, to wit, the sum of three hundred and twenty dollars of the rent afore- said, for two years and eight months of the term aforesaid then elaps- ed was and still is in arrears and unpaid, contrary to the true intent and meaning of said last mentioned articles of agreement and the covenants of the said defendants and the said George Gray therein contained ; And so the said plaintiff in fact says that the said de- fendant hath not kept his said covenants, but hath broken the same ; To the damage of said plaintiff, as administratrix as aforesaid, five hundred dollars ; and therefore she sues, &-c. And the said Abigal brings into Court here her letters of administration duly granted, &c. Pleas in Abatement and in Bar. Abatement and Proceedings thereo Abatement in Assumpsit, and in Debt, Ante. 108, 237 For Pleas in Abatement and Proceedings thereon, See Pleas in COVENANT. 265 Pleas m Bar. C— D- ads. A— B- Pleas in Bar.* No. 1 . Non est factum.^ In Covenant. And the said C. D. comes and defends, &c, and says, that the said supposed Indenture in the declaration mentioned is not his deed ; and of this he puts himself upon tiie country, &c., And the said A. B, doth the like. No. 2. Non infregit Conventionem. C— D— , ^ ads. > In Covenant. A— B— , ) And the said C. D. comes and defends, &c., and says, that he hath not broken the said covenants in the said declaration mentioned, or any or either of them, in manner and form as the said A. B. hath complained against him ; and of this he puts himself upon the coun- try, and the said A. B. doth the like." (a) For general Rules regulating Pleas in Bar, See Pleas in Bar in Assumpsit, Ante. 116. (b) Non est factum is such a gen- eral issue, that Notice of matter in Bar, or in Set-off may be put in un- der it; 1 Ohio Rep., 330; 6 do. 35. For Form of Notice, See General Issue in Assumpsit, Ante. 1 17. For general Rules regulating the action of Covenant, See Ante. 256, note (a). For a Plea of JSon est factum after craving oyer, See the like Plea in Debt, Ante, 238. (c) The plea of non infregit Con- ventionem., is only appKcable to cases where the plaintiff concludes his dec- laration, " and so the defendant has broken his covenant;" 2 Mod. 311. For if the plaintiff conclude his dec- laration, " and so the defendant hath not kept his covenant," such plea would be bad ; for it is a negative to a negative ; and no issue is joined, as it is only an answer argumenta- tively ; S T. R., 280. And it was admitted in the same case, that where a party covenants to do certain things, and an action is brought against him for non-performance, he cannot plead non infregit conventionem; for it is of that description ; Com. Dig. PI., 2 r. 5, Story PL, 213. 34 266 COVENANT. Trial by Jury — Verdicts — Judgments. For the Forms of other Pleas in Bar, Notice of set-off, &c. See, the same Titles, in Assumpsit and Debt, which, with slight varia- tions, are applicable to Covenant. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in As- sumpsit, Ante. 150. Verdicts and Judgments. For general Rules regulating Verdicts and Judgments, See Ver- dicts and Judgments in Assumpsit, Ante. 151. Verdict and Judgment for Plaintiff on JSon est factum. A— B— , ^ V. > In Covenant. C— D— , ) This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn, the truth to speak upon the issue joined between the parties, upon their oaths do say, that the Indenture, or. Articles of agreement, or, Deed poll, in the declaration mentioned, is the deed of the said C. D. and they assess the damages of the said A. B. by reason of the breaches of covenant in the declaration assigned, to — dollars. Therefore It IS considered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid in form aforesaid assessed, and also his costs in this behalf expended, taxed to — dollars. For the Forms of other Verdicts and Judgments, See the same Titles in Assumpsit and Debt, which, with slight alterations, are applicable to Covenant. DETINUE. 267 Summons. DETINUE/ The action of Detinue is, in general, commenced like the action of Assumpsit, by suing out a Summons, or Capias ad respondendum. I. Summons. The Summons is issued, as a matter of course, upon filing a Prae- cipe with the Clerk of the proper Court. See PrcBcipe in Assump- sit, Ante. 12. (a) In this form of action the plaintiff claims the specific recovery of goods and chattels, or deeds, or writings, detained from him by the defendant, with damages for the de- tention ; 2 Chit. PL 6th ed. 399; Atkinson v. Baker, 4 Taunt. R. 229; See 3 Bla. C. 146, 152 ; Co. Lit. 296, b ; 1 Chit. Pi. 5th ed. 137, 6th ed. 121 ; 2 Stark. Ev. tit. " Detin- ue," 280 ; Sehv. N. P. tit. " Detin- ue." This action hes for a wrong- ful detention, whether the taking were in the first instance lawful or wrongful ; Id. Upon Appeal to the Court of Common Pleas from the trial of the right of property before a Justice of the Peace, the claimant may declare in Detinue ; Swanks Stat. 83, §11. In trover, damages (only) for a conversion are claimed and recoverable, and the goods them- selves cannot be obtained ; in detin- we,the plaintiff claims and is entitled, if he establish his case, to recover the goods in specie, if they can be had. The judgment is, in eifect, that he recover the goods if they can be obtained from the defendant by the Sheriff, and a certain sum assessed by the jury for damages for the de- tention ; and if the goods cannot be had, then a certain sum assessed by the jury as their value, besides the damages for their detention, with costs. Therefore, in case the plain- tiff is anxious to get possession of the identical goods or deeds claimed, de- tinue is a better form of action than trover. The jury must assess the value of each of the goods, &c. sep- arately, because some of them may be forth-coming, others not, when execution issues ; and if the jury o- mit to do this, the error cannot be cor- rected by a writ of inquiry ; Pawley V. Holly, 2 Bla. R. 854 ; Anderson V. Passman, 7 C. & P. 193, Cole- ridge, J. But by Statute (Swan's Stat. 684, § 132,) if the verdict omit price or value, the Court may, at any time, award a writ of inquiry ; and if, upon an issue touching sev- eral things in one count, no verdict be found for part of them, error will not lie, but the plaintiff's title to the things omitted is barred. In detinue for several things, the Court would not, on motion, assess the damages as to one article, and strike it out of the declaration on its being delivered up to the plaintiff; PhiUips v. Hay- 368 DETINUE. Summons. PRiECiPE FOR Summons in Detinue. In Detinue. — Damages — Dollars. Issue a Summons returnable [forthwith if in Term time, or at next Term if in Vacation,] Indorse, " Suit brought, &c." See PrcBcipe in Assumpsit, Ante. 12. T. S. Atty.for Pltff. To the Clerk of — Common Pleas. Dated, &c. Writ of Summons. The State of Ohio, To the Sheriff of — County, Greeting : We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith [if in Term time,] or, on the first day of their next Term [if in vacation,] to answer unto A. B. in a plea of De- tinue — Damages — dollars ; and have you then there this writ* Wtness, F. C. Clerk of said Court of Common Pleas, at C, this — day of — , A. D. — . F. C. Clerk. For the Forms of Alias, Pluries, and Testatum Summons, See Ante. 15. ward, 1 H. & W. 108 ; 3 Dowl. P. joined in one action, and thus in the C. 362, S, C. Detinue, instead of same declaration the two claims can trover, is the usual form of action, be united ; 1 Chitt. Prec. 492. where the plaintiff has, in addition, a money claim against the defendant, (a) For the proper Indorsement, which can be made the subject of an See Summons in Assumpsit, Ante, action of debt; because a demand in 14. debt and another in detinue may be DETINUE. 269 Capias ad Respondendum. II. Capias ad respondendum. When a Capias may be sued out, See Ante. 20. Precipe for Capias. In Detinue. — Damages — Dollars. Issue a Capias ad respondendum returnable forthwith [if in Term time] or, at the next Term [if in vacation]. Indorse, " Suit brought, &c." See Prmcipefor Capias in Assumpsit, Ante. 21. Hold to bail in the sum of — dollars, [double the amount sworn to.] To the Clerk of — Common Pleas. T. S. Atty.for Pltff. Dated, &c. For the proper Affidavits, &c., See Capias in Assumpsit, Ante. 22. Writ of Capias ad respondendum. The State of Ohio, To the Sheriff of — County, Greeting : We command you to take C. D. if he may be found in your baili- wick and him safely keep, so that you have his body before our Court of Common Pleas, of the County aforesaid, at the Court House in said County , forthwith, or, on the first day of their next Term, to answer unto A. B. in a plea of Detinue. Damages — dollars ; and have you then there this writ. Witness, F. C. Clerk of our said Court of Common Pleas, at C. this — day of — , A. D. — . F. C. aerk. For the proper Indorsements to be made upon this writ, the Forms of an Alias, Pluries and Testatum Capias, Bail Bond to the Sher- iff, Recognizance of Special Bail, Bail piece, and Appearance of De- fendant, &.C., See Ante. 22 to 35. 270 DETINUE. Declarations. Declarations. f Supreme Court, or, Court of Common Pleas: I — Term, [The Term to which the writ was County, ss.-^ returned, or, The Ter'm at which the cause was brought into Court by Appeal or Certiorari.] A.B.—. A. B. complains of C. D.'' in a plea of Detinue ; for that the said A. B. on — '' at — delivered to the said C. D. certain goods and chattels, to wit, one, &c.' of the said A. B. of great value, to wit, of the value of — dollars/ to be redelivered by the said C. D. to the said A. B. when he the said C. D. should be thereto requested f Yet the said C. D. though he was afterwards, to wit, on — at — reques- ted to deliver said goods and chattels to the said A. B. hath not de- livered the same nor any part thereof, and still unjustly detains the same from the said A. B. Second Count upon a Finding. — And also for that the said A. B. on — at — was lawfully pos- sessed of certain other goods and chattels, to wit, &.C., of great val- ue, to wit, of the value of — dollars, as of his own property, and being so possessed thereof, he afterwards, on — at — casually lost the said goods and chattels, and the same afterwards, to wit, on — at — came to the possession of the said C. D. by finding. Yet the (a) For Forms of Commencement, highest possible value. Although Description of Parties, &c. : See several articles be claimed, the value Common Counts in Assumpsit, Ante, of the whole may be be stated in the 36 : Also, Declarations in Assumpsit above Form. Bui the jury assess on Promissory Notes, Ante. 46. the value of each separately ; See Ante. 267, note (a). (b) The day is immaterial unless it constitue a part of the contract. (e) Sometimes a fictitious loss and finding are laid as in Trover ; See 2 (c) The goods, &c., are usually Chit. PL 6th ed. 399. The above described as in trover ; See Trover, form suffices, though there were a Post. It is said more certainty is re- special bailment ; 2 Stark. Ev. 2d. quired than in trover ; 2 Saund. 74, ed. 280, note (g). The supposed b ; Co. Lit. 286, b; 6 Bac. Mg. De- delivery or bailment to the defendent tinue, B. The date of a deed need cannot be traversed by plea ; See not be mentioned ; Mc^rn v. West- Gledstane v. Hewitt, 1 C. & J. 565 brook, 1 Wils. 116. 1 Tyr. 445; 1 Price, P. C. 71 Walker v. Jones, 2 C. & M. 672 (d) A sum sufficient to cover the 4 Tyr, 915, S. C. DETINUE. 271 Pleas in Abatement and in Bar. said C. D, well knowing Ihe said last mentioned goods and chattels to be the property of the said A. B. hath not as yet delivered the same or any part thereof to the said A. B. though he was requested on — at — by the said A. B. so to do ; but he still unjustly detains the same from the said A. B. To the damages of said A. B. — dol- lars, [the amount stated in the writ^^ and thereupon he sues, &c. By. T. his Atty. Debt and Detinue in the same Declaration.^ Proceed as in Common Forms of Declarations in Debt, Ante. 1 92, to the end, omitting the words, To the damage, &fc., and then pro- ceed thus : " And also for that whereas the said A. B. on — ," &-c., {adding count in Detinue and concluding, To the damage, &c., as in the last Precedents.] Pleas in Abatement and in Bar. For Pleas in Abatement and proceedings thereon, See Pleas in Abatement in Assumpsit, and in Debt, Ante. 108, 237. Pleas in Bar.'' No. 1 . Non detinet." C— D— , ^ ads. > In Detinue. A— B— , ) And the said C. D. comes and defends, &c., and says that he does not detain the said goods and chattels, in the said declaration speci- fied, or any part thereof, in manner and form as the said A. B. hath complained against him, and of this he puts himself upon the coun- try, and the said A. B. doth the like. By S. his Atty. (a) See Ante. 267, note (a). defendant or his agent for him ; 7 C. & P. 193 ; 2 Stark. Ev. Tit. Detin- (b) For general Rules regulating ue. A Lien must be pleaded spe- Pleas in Bar, See Pleas in Bar in cially ; 4 Bing. 106, 112; 1 Chitt. Assumpsit, Ante. 116. PL 488. Pleas in Trover, in gener- al, apply in Detinue ; See Ante. (c) The plaintiff must prove the 267, note (a), goods were in the possession of the 272 DETINUE. Pleas in Bar. No, 2. General Lien by an Attorney.^ And for a further plea in this behalf, the defendant saith, actio non, because he saith that whilst the plaintiff was possessed of the said instruments in writing, in the declaration mentioned, as of his own property, and before the said time when, &c. to wit, on [^c] he the plaintiff delivered the said instruments in writing to the defendant, then and still being an attorney of the Court of — , and a solicitor of the Court of Chancery, and a practising conveyancer for fees and re- ward, as such attorney, solicitor, and conveyancer, for the purpose of enabling the defendant, as such attorney, solicitor, and conveyancer, to do and transact divers affairs and businesses, as such attorney, so- licitor, and conveyancer, for the plaintiff with and in respect of the said instruments in writing, and with and in respect to the property to which the same related, and the same have ever since remained in the possession of the defendant ; and the defendant further says, that the plaintiff at the time of the delivery of the said instruments in writing to the defendant, and also before and at the said time when, &,c. was and still is indebted to the defendant in a large sum, to wit, the sum of — dollars for work and labor before then done by the de- fendant, as such attorney, solicitor, and conveyancer for the plaintiff, and upon his retainer, and at his request, and for fees due and paya- ble to the defendant in respect thereof, and in a large sum, to wit, — dollars for money paid, laid out and expended by the defendant (a) The legal owner of an estate cock, 1 Stark. R, 408 ; White v. is, in general, entitled to, and the par- Gainer, 9 Moor, 41 ; 2 Bing. 23 ; 1 ty to sue for, the detention of title C & P. 324 : See in general, Harr. deeds; 4 Bing. 106; 12 ^foo»',308: Ind. Lien ; 3 Chit. Commerc. Law, Attorneys have a general lien ; Tidd 537. Liabihty of Inkeepers discuss- er. 337; Chitt. Arch. 36. By im- ed ; 4 Alaule 6r Sel. 306 ; 2 Eng. plication of law every workman has Com. Law Rep. 377 ; Their Lien a lien for work done in respect of and Liens in general ; Cro. Car. goods for the price of such work and 271 ; Bac. Mg. Tit. Inns ; 10 necessary materials, if due and un- Petersdf. Mg. 617 ; 2 Dane's Mg. paid ; See Chase v. Westmore, 5 263 ; Yelverton, 66, note 2 ; Ld. M. & Sel. 180 ; Jacobs w. Latour, 5 Raym.SQQ. Lienoflnkeeper holds Bing. 130 ; 2 M. & P. 201 ; provi- though it be a stolen horse ; and the ded there be no outstanding security Lien may be enforced in Equity ; 5 not due ; Hewison v. Guthrie, 2 Dana, 310. Mechanics have a lien Bing. N. C. 759. A hen is lost by on Houses they build; Ohio Stat. parting with the possession, or by Vol. 41, p. 66. So has a consignee claiming to hold the goods upon an- of merchandise for his advances ; other inconsistent ground ; Sweet v. Ohio Stat. Vol. 42, p. 49. How Pym, 1 East, 4 : Boardman v. Sill, 1 mechanics' Lien waived ; 14 Wend. Campb. 4»0, note; Hartley v. Hitch- 201. DETINUE. 273 Verdicts. as such attorney, solicitor, and conveyancer for the plaintiff, and at his request, by reason whereof the defendant, during all the time aforesaid, was and still is entitled to hold and detain the said instru- ments in writing, as and for a lien for the said sums of money so due and owing to him as aforesaid ; wherefore the defendant hath de- tained and still detains the same, and at the said time when, &c. re- fused to deliver the said instruments or either of them to the plaintiff, on his then demanding the same, as the defendant lawfully might and may for the cause aforesaid ; and this the defendant is ready to verify. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in As- sumpsit, Ante. 150. Verdicts. For general Rules regulating Verdicts, See Verdicts in Assump- sit, Ante. 151. No. 1. Verdict and Judgment for Plaintiff on Non detinet. In Detinue. This day came the parties, by their attorneys, and thereupon came a jury, to wit, E. F. &,c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say, * that the said C. D. doth detain the goods and chattels, or, deeds and papers in the said declaration mentioned, in manner and form as the said A. B. hath complained against him ; and they find the goods and chattels, or, deeds and papers so detained, to be of the value of — dollars ; and ihey assess the damages of the said A. B. on occasion of the detention of said goods and chattels, or, deeds and papers, to — dollars ; Therefore, It is considered that the said A. B. recover of the said C. D. the said goods and chattels, [or, deeds and papers,^ " enumerating them, if enumerated in the Ver- dict," or the said sum of — dollars, for the value of the same, if the said A. B. cannot have again his said goods and chattels, and also his 3$ 374 DETINUE. Verdicts. said damages, beyond the value aforesaid, by the jurors aforesaid, in form aforesaid assessed, together with his costs in this behalf expen- ded, taxed to — dollars.* (a) This is the proper form of a Veraict, where the jury find a Ver- dict for the whole, in favor of the plaintiff; but where the jury find/o?* a part only, then each article and its value must be found by the Verdict ; Arch. Forms, 140; 1 Chit. PI. 115. The nature of this action requires that the Verdict and Judgment be such, that a specific remedy may be had for the recovery of the goods de- tained ; or a satisfaction in value for each several parcel, in case they be not delivered ; 2 W. Bl. 853. The verdict in such case runs thus : "Upon their oath, do say that the said C. D. doth detain the said hook above mentioned and also the said deed above mentioned, in manner and form as the said A. B. hath com- plained against him ; and they find the said book to be of the value of — dollars, and the said deed to be of the vadue of — dollars, and they assess the damages of the said A. B. on occasion of the detention of said book and said deed at -■ — dollars. And the jury aforesaid do further say, that the said C. D. doth not de- tain the said picture above mentioned, in manner and form as the said A. B. hath complained against him." If on an issue as to several articles contained in one count, the jury find no verdict as to part of them, it is no error, but the plaintiff'is barred of his title to the things omitted; Swari's Stat. 684, § i;J2. At common Law, if the jury neglected to find the value the omission could not be supplied by a writ of inquiry. This defect is removed by the Statute above cited. In such case the form is thus : " This day came, &c., — who being empan- nelled, &c., — say that the said C. D. doth detain the said goods and chattels in manner and form as the said A. B. hath complained against him, and they do assess the damages of the said A. B. by reason of the de- tention thereof to — dollars : There- fore It is considered that the said A. B. ought to recover of the said C. D. the said goods and chattels, or the value of the same, and also his said damages ; but because the value of the said goods and chattels is to the Court unknown, therefore let a jury come to assess the same ; and thereupon a jury being called, came, to wit, E. F., &c., who being em- pannelled and sworn to inquire of the vcdue of the said goods and chattels, upon their oaths do say, that the said goods and chattels are of the value of — dollars." \^If the jury, upon the issue, find in part only, for the plaintiff, the verdict upon the inquiry must enum,erate each article and spe- cify its vcdue as before directed.'] Therefore It is considered, &c. In the Common Law Precedents, after entering the Judgment, as above, it is ordered as follows : " And here- upon the Sheriff is commanded that he distrain the said Joseph Styles, by all his la7ids and chattels in his bail- iwick, so that neither he, the said Joseph Styles, nor any one by him, do lay hands on the same until the said Sheriff shall have another com- mand from the court of — in that behalf, and that the said Sherifi' an- swer for the issues of the same, so that he the said Joseph Styles render to the said John Nokes the goods and chattels,'''* &c., aforesaid, or the said sum, &c., for the value of the same ; and in what manner, &c., he is com- manded to make appear, &c." Arch. Pr. 140. See Executions, Post. DETINUE. 275 Verdicts and Judgments. Verdicts and Judgments. No. 2. The like, upon a Verdict part. [Enter the Verdict — Therefore, It is consieered that the said A. B. recover of the said C. D. the said Book, or the said sum of — dollars for the value of the same, if the said A. B. cannot have again his said Book ; and also the said Deed, or the said sum of — dollars for the value of the same, if the said A. B. cannot have again his said Deed, and also his said damages by the jurors aforesaid in form aforesaid assessed, together with his costs in this behalf expended, taxed to — dollars. Verdict and Judgment for Defendant. Commence as in No. 1, Ante. 273, — upon their oaths do say that the said C. D. doth not detain the goods and chattels in the said declaration mentioned, in manner and form as the said A. B. hath complained against him ; Therefore It is considered that the said C. D. go hence w^ithout day, and recover of the said A. B. his costs herein expended, taxed to — dollars. 276 REPLEVIN. Replevin. REPLEVIN. At Coniinon Law, wliere goods or cattle are distrained for rent, or a rent charge, or for a poor rate, &c., or damage feasant, the usual course to obtain restitution and try the validity of the seizure, is for the owner to make a plaint to the Sheriff of the County to have the goods replevied ; that is, re-delivered to him ; and thereupon it is the duty of the Sheriff, without writ out of Chancery, to cause the effects to be re-delivered to the owner on his giving the Sheriff security that he will forthwith prosecute an action of Replevin against the dis- trainer in the County Court to try the legality of the distress ; and will, if its validity be established, return the goods to the distrainer. The party distrained upon accordingly levies a plaint and declares in the Sheriff's County Court ; but the suit is usually removed into the Superior Court, wherein the plaintiff declares de novo. The replevy is in effect in rem to have the cattle or goods again, and the suit in replevin is instituted to try the right of distress. The plaintiff must, as in Trover, be the general owner or a special owner, and must have the possessory right ; 3 Bla. C, 147 ; 1 Saund., 347, b, note 2 ; 1 Chit. PL 5th ed., 174 ; 6th ed., 162 ; 2 Stark. Ev., 2d ed., " Replevin," 714; Selw. N. P. tit. "Replevin." Replevin is also the proper form of proceeding to recover possession of a specific chattel ; Dore v. Wilkinson, 2 Stark. R., 288. It lies for an illegal taking in the first instance, or for an unlawful detention after a legal taking ; Ev- ans V. Elliot, 6 N. & M., 606, T. T. 1836 ; 5 Ad. & E. 142, S. C. It does not lie when goods are delivered under a contract, or to a common carrier ; 13 Eng. Com. Law Rep.^ 443. Under our Statute (Swan's Stat., 784) Replevin is the appropriate remedy where one person wrongfully detains the goods and chattels of another ; and it is the wrongful detention that gives the right of action, without regard to the original taking; Wright, 159; 7 Ohio Rep., 133, Part 2d.* See Declarations and Pleas in Replevin, Post. For Cases in Ohio, See Wilcox's Digest. The action is commenced by filing with the Clerk of the Court of Common Pleas, a Praecipe and Affidavit. (a) When the value of the prop- if the suit is brought in the Common crty does not exceed one hundred Pleas, the plaintiff can recover no dollars, Justices of the Peace have costs ; Ohio Stat., vol. 44, p. 41, § concurrent jurisdiction with the Court 2. of Common Pleas ; and in such cases REPLEVIN. 277 Affidavit. Precipe and Affidavit. A— B— , ^ V. > In Replevin — Damages — Dollars.^ C— D— , ) Issue a writ of Replevin for the following goods and chattels, to wit, \Here describe the articles.]^ To the Clerk of — Common Pleas. Dated, &c. Affidavit. T., Att'y for Pl't'fl'. The above named A. B. makes oath and says that he has good right to the possession of the goods and chattels described in the above Praecipe, that the same are wrongfully detained by the said C. D., that the said goods and chattels were not taken in execution on any judgment against the said A. B. nor for the payment of any tax, fine or amercement assessed against him, nor by virtue of any writ of Replevin, or any other mesne or final process whatsoever, issued against the said A. B."^ Sworn to, &c. A. B. The like, by an Agent or Attorney. T. W., of, &c., makes oath and says that he is the age7it or attorney of the said A. B. in this behalf, and that, as he is informed and verily believes, the said A. B. has good right, &c., [as above.] (a) A sum sufficient to cover the fixtures; 4 T. R., 504. If the ap- real damage. praised value of the goods does not amount to one hundred dollars or (b) The goods are to be described more, the plaintiff can recover no with at least as much certainty as in costs ; Ohio Stat., vol. 44, p. 41, § 2. Trover; See Declarations in Tro- ver, Post. The following form de- (c) If the Clerk issues a writ scribes the seizure of standing corn without such affidavit, it may be under 11 G., 2 C. 19, " in a certain quashed at his costs ; and the Clerk close there called — took the corn of as well as the plaintiff are liable in the plaintiff, to wit, — acres of stand- damages to the party injured ; Swan's ing wheat there then growing." Stat., 787, § 12. Replevin does not lie for fixtures qua 378 REPLEVIN. Writ of Replevin. — Form of ReplcTin Bond. Writ of Replevin. The State of Ohio, To the Sheriff of — County : Greeting. We command you, that without delay you cause to be replevied unto A. B. the goods and chattels following, to wit, [Her'e describe the property precisely as in the Prescipe] which C. D. wrongfully detains from the said A. B. as is said ; and also that you summon the said C. D. to appear at the next term of our Court of Common Pleas to be held within and for the said county of — to answer unto the said A. B. for the unlawful detention of the goods and chattels afore- said . Damages — dollars; [The amount stated in the Prcecipe^ and have you then there this writ. Witness, F. C, Clerk of our said Court at C, this — day of — , A. D. — . T. C, Clerk. The Sheriff, in the execution of the writ may break open any house, stable, out-house, or other building, in which the property may be concealed ; having first made a demand of such property, and of entrance into such building, and the same being refused ; Swan's Stat., 785, <§. 3. Before the property is delivered to the plaintiff, he is required to execute a Bond to the defendant, with two or more responsible free- holders of the County, as security, in double the value of the prop- erty, conditioned that the plaintiff will appear at the return term of the writ, and prosecute his suit to effect, and pay all costs and dam- ages which shall be awarded against him. The value of the prop- erty is to be ascertained by the oaths of two or more disinterested persons, which oaths the Sheriff, or officer executing the writ, is authorized to administer ; Swan's Stat., 787, <§> 10. Form of Replevin Bond. Know all men by these presents that we A. B., E. F. and G. H., of &-C., are held and firmly bound unto C. D. in the penal sum of — dollars [Double the value of the property]^ to the payment of (a) If the value of the property to be for one hundred dollars ; 10. On return of the writ the suit is subject to the same usages and rules of practice as other cases ; Swanks Stat., 785, ^ 5. Declarations. r Court of Common Pleas: — Term [The — County, ss. ) Term to which the writ was 7'etu7'necl\ A. ( D. — . A. B. complains of C. D. in a plea of Replevin, for that the said C. D. on — at — was possessed of certain goods and chattels of the said A. B., to wit, [Here describe the articles as in the writ] to be delivered to the said A. B. when he the said C. D. should be thereto afterwards requested : Yet the said C. D., though requested so to do, has not delivered the said goods and chattels nor any part thereof to the said A. B., and so the said C. D. wrongfully detains the same (a) A bond executed by two or though not executed by the plaintiff more responsible freeholders to the himself; 10 Ohio Rep., 445. satisfaction of the Clerk is good, 280 REPLEVIN. Pleas in Bar. from the said A. B. To his damage — dollars, [The amount stated i7i the writ,] and thereupon he sues, &.C.* By T., his Att'y. Pleas in Abatement and in Bar. For Pleas in Abatement and Proceedings thereon, See Pleas in Abatement in Assumpsit, and in Debt, Ante. 108, 237. Pleas in Bar.'' No. 1. JSon detinet. C— D— , ^ ads. >In Replevin. A— B— , 3 And the said C. D. comes and defends, &.C., and says that he does (a) Under our Statute the wrong- ful detainer, is the gist of the action, and it seems wholly unnecessary to inquire, whether the original taking were by right or by wrong, by fraud, or by bailment, any further than as such original taking may go to show the ivrongfulness of the detainer ; 7 Ohio Rep., 133, Part 2d. No de- mand is necessary to sustain Replev- in against a constable who levies on goods in possession of the debtor; 13 Ohio Rep., 30. One intrusted with personal property, may, in Replevin contest the right of ownership and possession, without a re-delivery of possession ; 14 Ohio Rep., 58. If A. obtain goods of B. by false pre- tences, and give therefor an accepted draft upon C. — an accommodation ac- ceptor — it is no defence to an action of Replevin instituted by B. against a stranger, in whose possession the goods are found, that the draft had not been previously returned to A. ; 15 Ohio Rep., 200. The Re- vised Statutes of New York regula- ting the action of Replevin, (vol. 2, p. 521,) like our Statute, authorizes the action to be brought upon a wrongful detainer. It provides that "wherever any goods or chattels shall have been ivrongfidly distrain- ed or otherwise wrongfuUy taken, or shall be ivrongfully detained, an ac- tion of Replevin may be brought, &c." The Act then points out two modes of proceeding, one when the wrongful taking, and the other when the ivrongful detainer, consti- tutes the foundation of the action ; and declares what allegations the Declaration, in each case, shall in substance contain. The above Pre- cedent is from the Statute of New York ; from which our Statute, as last revised, seems in part to have been taken. (b) For general Rules regulating Pleas in Bar, See Pleas in Bar in Assumpsit, Ante. 116. Under the plea of Non detinet, the defendant may show, that he holds the property in dispute by virtue of a levy on ex- ecution against a third person, made REPLEVIN. 281 Pleas in Bar. not wrongfully detain the goods and chattels in the declaration men- tioned, or any part thereof, in manner and form as therein alleged ; and of this he puts himself upon the country, &c., and the said A. B. doth the like.^ No. 2. Property in another Person. In Replevin. C— D- ads. A— B- And the said C. D. comes and defends, &c., and says that the said A. B. ought not to have his aforesaid action against him, because he says, that the said goods and chattels in the said declaration men- tioned, at the said time when, &c., were the property of the defend- ant (or, of one E. F.) and not of the plaintiff, and this he is ready to verify ; wherefore he prays judgment if the said A. B. ought to have his aforesaid action thereof against him, &c. Replication thereto.'' And the said A. B., as to the plea of the said C. D., secondly above pleaded in bar, says, that he ought not to be barred of his action aforesaid, because he says that the said goods and chattels in the said declaration mentioned, at the said time when, &c., were the property of him the said A. B. and not of the said C. D. (or of the said E. F.,) as the said C. D. in his said plea hath alleged ; and of this he puts himself upon the country, &c., and the said C. D. doth the like. by himself as constable ; Oaks v. Wyatt, 10 Ohio Rep., 344. But where the defendant plead Non de- tinet, and property in himself; and the parties went to trial without any replication to the latter plea, and there was a verdict and judgment for the plaintiff, Error will not lie at the suit of the defendant ; for the second plea is virtually tried on the issue under the first plea ; and Error will not lie where it appears from the record that the party was not preju- diced by the irregularity ; Ferrell v. Humphrey, 12 Ohio Rep., 112. (a) This Plea is taken from the Revised Statutes of New York, See Ante. 280, note (a). It is held that a Plea of Non cepit, under the Stat- ute, presents an immaterial issue ; Wright, 645. The plaintiff, under the Plea of JVoti detinet, must prove the goods in the possession of the de- fendant as a part of his case. (b) The Statute allows several Re- phcations to the same Plea ; Swanks Stat., 661, § 63: See 5 Ohio Rep., 393. 36 282 REPLEVIN. Verdicta and Judgments. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in As- sumpsit, Ante. 150. Verdicts and Judgments. For general Rules regulating Verdicts and Judgments, See Ver- dicts and Judgments in Assumpsit, Ante. 151, 163. In all cases where the jury find for the plaintiff on issue joined, or upon inquiry of damages after judgment by default, they assess dam- ages for the illegal detention ; for which, with costs of suit, the Court render judgment ; Swan's Stat., 786, <§. 7. No. 1. Verdict and Judgment for Plaintiff on Plea of Non detinet Damages assessed by Jury."" A— B— , ^ V. >In Replevin. C_ D— , ) This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F., &c. who being empannelled and sworn, the truth to speak upon the issue joined between the parties, upon their oaths do say, that the said C. D. doth detain the goods and chattels of the said A. B. in manner and form as the said A. B. hath complained against him ; and they assess the damages of the said A. B. by rea- son of the premises to — dollars ; Therefore It is considered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid, in form aforesaid assessed, and also his costs herein expended, taxed to — dollars. (a) Upon the issue Non detinet, if or that and the property, were in the the Verdict is for the plaintiff^ ade- defendant ; and if the latter, the quate damages are assessed for the damages are the value of the goods detention ; if for the defendant, the replevied ; Wright, 503, 645. jury must find if the possession only, REPLEVIN. 283 Verdicts and Judgments. No. 2. Verdict and Judgment for Plaintiff", on Default, Damages assessed by Jury. A— B— , ^ V. > In Replevin. C— D— , ) This day came the said A. B. by his attorney, and the said C. D., though solemnly called came not, but made default ; whereupon it is considered that the said A. B. ought to recover his damages against the said C. D. by reason of the premises, but because the damages are to the Court here unknown : Therefore let a jury come ; and thereupon a jury being called came, to wit, E. F., &c., who being empannelled and sworn to inquire of the damages sustained by the said A. B. by reason of the wrongful detention of the goods and chattels in the said declaration mentioned, upon their oaths do assess the same to — dollars: Therefore, &,c. [Conclude as in No. 1, Ante. 282. If the plaintiff discontinues his suit, or becomes nonsuit, or if judg- ment be rendered against him on demurrer, or if he otherwise fail to prosecute his suit to final judgment, the defendant may call a jury to inquire into his right of property and right of possession, and if they find either in his favor, at the time the suit was commenced, they assess such damages as they think proper ; for which, with costs, judgment is rendered against the plaintiff; Swan's Stat., 785, <§. 5. No. 3. Damages assessed and Judgment for Defendant, on Dis- continuance, Right of Property — Right of Possession, ^c, found in Defendant.^ A— B— , ^ V. > In Replevin. C— D— , ) This day came the parties by their attorneys, and thereupon the said A. B. discontinues his suit, (*) whereupon the said C. D. de- mands a jury as well to inquire into his right of property and right of possession in the goods and chattels, in the said declaration mention- ed, as to assess his damages in the premises ; and thereupon a jury being called, came, to wit, E. F., &c., who being duly empannelled (a) As to the Rule of Damages, See No. 1, note (a), Ante. 283. 384 REPLEVIN. Verdicts and Judgments. and sworn in that behalf, upon their oaths do say, that at the com- mencement of this suit the right of property, or, the right of pos- session, [or both, as the case may be,] in the said goods and chattels, in the said declaration mentioned, was in the said C. D., and they assess the damages of the said C. D. by reason of the premises to — dollars ; Therefore It is considered that the said C. D. recover of the said A. B. the said sum of — dollars his damages aforesaid, in form aforesaid assessed, and also his costs herein expended, taxed to — dollars. No. 4. The like, on Non-suit. — This day came, &c., and the said A. B. being thereupon called comes not, nor does he further prosecute his suit ; whereupon, &c. [Proceed as in No. 3, from the * to the end.] No. 5. The like, on Demurrer to Flea. In Replevin. This cause came on to be heard upon the plaintift^'s demurrer to the defendant's plea, and was argued by counsel, and the Court being fully advised in the premises, are of opinion, that the said plea of the said C. D., and the matters therein contained, are sufficient in law to bar the action of the said A. B. against the said C. D. ; Where- upon, &c. [Proceed as in No. 3, from the * to the end."" Where the jury find the issue for the defendant, they also find whether he had the right of property, or the right of possession only, when the suit was commenced ; and if they find either in his favor, they assess such damages as they think proper ; Swan's Stat., 786, ^ 6. No. G. Issue found for, and Right of Property and Right of Possession, or either of them, found in Defendant — Damages assessed and Judgment. In Replevin. This day came the parties, by their attorneys, and thereupon came (a) See Judgments on Demurrer in Assumpsit, No. 3, Ante. 168, note (a). REPLEVIN. 285 Verdicts and Judgments a jury, to wit, E. F., &c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say, that, &c. [Here insert the finding of the jury upon the issue, or issues,] and the said jury further say, that the right of property, or, the right of possession, [or both, as the case may be,] in the said goods and chattels in the said declaration mentioned, was at the commencement of this suit, in the said C. D., and they assess the damages of the said C. D. by reason of the premises to — dollars ; Therefore It is considered, &c. [Conclude as in No. 3, Ante. 283.] No. 7. Judgment for Plaintiff] in part, and for Defendant in part.^ [Commence as in the last Precedent — Upon their oaths do say, that the said C. D. doth detain the said horse of the said A. B., parcel of the goods and chattels in the said declaration mentioned, in manner and form as the said A. B. hath complained against him ; and they assess the damages of the said A. B. by reason of the premises to — dollars ; and the jury aforesaid further say, that the said C. D. doth not detain the said carriage, other parcel of the goods and chattels in the said declaration mentioned, in manner and form as the said A. B. hath complained against him, but that, at the commencement of this suit, the right of property, or, the right of possession, [or both, as the case may be] in the said carriage was in the said C. D., and they assess the damages of the said C. D. by reason of the premises to — dollars ; Therefore It is considered that the said A. B. re- cover of the said C. D. the said sum of — dollars, his damages afore- said, in form aforesaid assessed, and also his costs in that behalf ex- pended, taxed to — dollars ; And It is considered, also, that the said C. D. recover of the said A. B. the said sum of — dollars, his damages aforesaid, in form aforesaid assessed, and also his costs in that behalf expended, taxed to — dollars. (a) In Replevin for divers articles, long to several persons ; a general where the jury find for the plaintiff, verdict, for the defendant, on all the as to part, and for the defendant, as pleas, is bad ; and judgment will be to part, assessing to each the proper arrested ; Hewson v. Saffin, 7 Ohio damages separate judgments will be Rep., 232, Part 2d. The jury, in given for each party, with costs ; their verdict, ought to say, whether Clark V. Keith, 9 Ohio Rep., 72. it is based on the right of property, In Replevin where several pleas are or right of possession ; Jb. put in, charging the property to be- 286 CASE. Summons. CASE.* An action on the Case is, in general, commenced like the action of Assumpsit, by suing out a Summons, or. Capias ad respondendum. 1 . Summons. The Summons is issued, as a matter of course, upon filing a Prae- cipe with the Clerk of the proper Court : See FjcBcipe in Assumpsit, Ante. 12. Pr^icipe for Summons in Case. In Case. Dama^fes — dollars. Issue a Summons returnable [forthwith, if in Term time, or, at the next Term, if in vacation.^ Indorse, " Suit brought," &c. : See Precipe in Assumpsit, Ante. 12. T. S., Att'y for Pl't'ff. To the Clerk of — Com. Pleas. Dated, &c. Writ of Summons. The State of Ohio, To the Sheriff of — County : Greeting. We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith [if in Term time] or, on the first day of their next (a) When Case lies, in general, 10 Wend., 167; 21 Wend., 290; See Black. Com., 51 ; 3 Reeves, 89, 15 Wend., 522. For cases in Ohio, 243, 391 ; 1 Chilt. PL, 107, 166 ; See Wilcox's Digest. CASE. 287 Capias ad Respondendum. Term [if in vacation] to answer unto A. B. in a plea of the Case. Damages — dollars : and have you then there this writ.* Witness, F. C, Clerk of our said Court of Common Pleas at C, this — day of — , A. D. — . F. C, Clerk. For the Forms of an Alias, Pluries, and Testatum Summons, See, Ante. 15. ., II. Capias ad respondendum. When a Capias may be sued out, See Ante. 20. Precipe for Capias. In Case. Damages — dollars. Issue a Capias ad respondendum returnable forthwith [if in Term time] or, at the next Term [if in vacatio?i.] Indorse, " Suit brought," &c. : See FrcBcipefor Capias in Assumpsit, Ante. 21, 23. Hold to bail in the sum of — dollars [double the amount sworn to.] To the Clerk of — Com. Pleas. Dated, &c. T. S., Att'y. for Pl't'ff. For the proper Affidavits, &c.. See Capias in Assumpsit, Ante. 21, 23. Writ of Capias ad respondendum. The State of Ohio, To the Sheriff of — County, Greeting : We command you to take C. D. if he may be found in your baili- wick, and him safely keep, so that you have his body before our Court of Common Pleas, of the County aforesaid, at the Court House in said Conniy, forthwith, or, on the first day of their next (a) For the proper indorsements, See Summons in Assumpsit, Ante. 12. 288 CASE. Declarations. Term, to answer unto A. B. in a plea of the Case : Damages — dol- lars ; and have you then there this writ. Witness, F. C. Clerk of our said Court of Common Pleas, at C. this — day of — A. D. — . F. C. Clerk. For the proper Indorsements to be made upon this writ, the Forms, of an Alias, Pluries, and Testatum Capias, Bail Bond to the Sher- iff, Recognizance of Special Bail, Bail piece, and Appearance of De- fendant, &c., See Ante. 20 to 35. Declarations. No. 1. Against Carrier for not delivering goods, ^c* f Supreme Court, or, Co urt of Common Fleas : I — Term, [The Term to which the writ was County, ss.<( returned, or, The Term at which the cause was I brought into Court by Appeal or Certiorari.] [a.d.—. A. B. complains of C. D.*" in a plea of Case for that whereas* the said C. D. on — and long before, was, and ever since hath been, a common carrier of goods and chattels, and during all that time hath been used to carry for hire, the goods and chattels of all persons whatever, requesting thereto, from Q,. to X. and thence back again to Q,. And whereas by the laws and custom of the land, every com- mon carrier who receives any goods and chattels of any person, for hire, to carry the same, is bound to carry the same without diminish- ing or losing any part thereof, so that no damage whatever may hap- pen thereto, by default of such common carrier, or his servant ; and whereas the said A. B. on — at — was possessed of — as of his proper goods and chattels, and being so possessed thereof, on the same day, at — delivered to said C. D. said goods, to carry them safe- (a) Common Carriers cannot sell or groes are not goods ; 2 Pet. 155. For hypothecate goods ; Ohio Stat. Vol. Cases in Ohio, See Wilcox's Digest. 42, p. 49. Stoppage tn transitu,Gen- eral Doctrines ; 3 Eng. Com. Law (b) For Forms of Commencement, Pep. 9, note. Equity has no such Description of Parties, &c., See powers; 2 Jac. 4' Walk. 351. Rea- Common Counts in Assumpsit, note sonable dihgence only is required as (b). Ante. 3G : Also, Declarations to time oi delivery ; 14 Wend. 215. in Assumpsit on Promissory Notes, General Rules ; 21 Wend. 190. Ne- Ante. 46. CASE. 289 Declarations. ly from — to — aforesaid, and then to be delivered to the said A. B. and the said C. D. then and there had and received the said goods, to be carried and dehvered in manner above set forth : Yet the said C. D. hath never delivered the said goods to the said A. B. as he ought to have done : but on the contrary thereof, the said goods, af- terwards, on — at — were wholly lost for want of due care and pre- servation by the said C. D. To the damage of the said A. B. — dol- lars, [The amount stated in the writ^ and thereupon he sues, &,c. No. 2. For Immoderately Riding a Horst. [Proceed as in No. 1, Ante. 288, to the (*) — the said C. D. on — at — hired of the said A. B. a certain horse of the said A. B. to ride from A. to B. and back again, for a certain sum of money be- tween them agreed upon, and the said A. B. then and there delivered to the said C. D. the said horse to ride as aforesaid ; and the said C. D. the said horse then and there so immoderately rode, that by rea- son thereof, and for want of due care of said horse, the said horse afterwards, on — died : To the damage, &.c. {Conclude in No. 1, Ante. 288. No. 3. For falsely Warranting a Horse to he sound. [Proceed as in No. 1, Ante. 288, to the (*) — the said A. B. on — at — bargained with the said C. D. to buy of him a certain geld- ing of the said C. D. and the said C. D. well knowing the same geld- ing to be infirm, unsound and infected with a certain distemper, called the glanders, by then and there warranting the said gelding to be sound and free from any distemper whatever, then and there deceit- fully sold the said gelding to the said A. B. for ihe sum of — dollars; which said gelding, at the time of the sale thereof, was, and from that time to the time of the death of said gelding, continued infirm, un- sound, and infected with said distemper, to wit, at, &c. And so the said C. D. falsely and fraudulently deceived the said A. B. To his damage, &c. [Conclude as in No. 1, Ante. 288.] 2 Went. 127. No. 4. For Charging the Plaintiff with Perjury. [Proceed as in No. 1, Ante. 288, to the (*) — the said A. B. is and always has been, a good and faithful citizen of the State of Ohio, and has sustained a fair character among his neighbors for integrity, and has never been guilty or suspected of the atrocious crime of false swearing and perjury ; Yet the said C D. not ignorant of the premi- 37 290 CASE. Declarations. ses, and contriving and intending maliciously and wickedly to injure and destroy his character, to bring him into disgrace among his neigh- bors, and to expose him to the penalties of the law for perjury, did, on or about the — day of — at — utter and publish in the hearing of sundry persons, the following false and scandalous words, of and concerning the plaintiff, to wit : You (meaning the said A. B.) are a foresworn rascal : You (meaning the said A. B.) are a perjured villain : You ( meaning the said A. B.) are perjured : You (mean- ing the said A. B.) are a perjured scoundrel, and I (meaning the said C. D.) can prove it. By means of publishing which false and scan- dalous words, the said A. B. is greatly injured in his good name and reputation, and has been rendered liable to a prosecution for perjury: To his damage, &,c. [Conclude as in No. 1, Ante. 288. No. 5. For Slander of the Flaintiff in his Profession ; 2 Chit. Prec. 558. For that whereas, [state j)laintiff 's general good character as in Form 4, Ante. 289 ;] and whereas, before and at the time of commit- ting of the several grievances by the defendant hereinafter mentioned, the plaintiff was, and still is, an attorney, [or " physician," ^c, as the case may be,] and hath always exercised and carried on the said profession and business with honesty, integrity, [skill,] credit and reputation, [using such words as are applicable, in I'efei^ence to the nature of the calumny,] to the comfortable support of himself and family, and the increase of his riches. [And whereas, stating any special matter necessary to explain or give effect to the slanderous words ;] Yet the defendant, [proceed as in Form 4, Ante. 289, to the end of the statement of the words, taking care to state that the discourse was had, and the words were spoken " of and concerning the plaintiff"," "and of and concerning him in relation to his said profession and business ;" and if there be a special inducement (f particular matter, add, "and of and concerning the said — ," &c.J By means, &c. [proceed and conclude as in Form 4, Ante. 289; stating special damage, if any.] No. 6. Foi' Slanderous Words of the Plaintiff in his Trade or Occupation; lb. For that v^liereas the plaintiff, [state the general good character as in Form 4, Ante. 289.] And whereas before and at the time of the committing by the defendant of the grievances hereinafter mentioned, the plaintiff was a — ; and hath always used and exercised the said trade and business, and hath conducted himself therein with integri- CASE. 291 Declarations. ty and fairness of dealing. And whereas, [state any extrinsic facts if any, necessary to he shown in order to explain the loords.^ Yet the defendant, well knowing, [^c, proceed and conclude as in last form, stating " trade and busines," instead of ^'profession" and taking care to lay the colloquium, ^c. "of and concerning the plain- tiff and of and concerning him in his said trade and business ;" and if there he a special inducement, adding, "■ and of and concerning." No. 7. General form of Declaration for a Libel directly charging an Offence, fyc. and not requiring Explanation by a Special In- ducement ; 2 Chitt. Prec. 544. For that whereas the plaintiff, before and at the time of the com- mitting by the defendant of the several grievances hereinafter men- tioned, was a person of good name, credit, and reputation, and de- servedly enjoyed the esteem and good opinion of divers persons. Yet the defendant, well knowing the premises, but combining and wick- edly and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, heretofore, to wit, on the — day of — A. D. — falsely, wickedly, and maliciously did compose and pub- lish, and cause to be composed and published of and concerning the plaintiff, a certain false, scandalous, malicious, and defamatory libel, containing (amongst other things) the false, scandalous, malicious, de- famatory, and libellous matters following, of and concerning the plain- tiff, that is to say, " He (meaning the plaintiff) [^c. setting out the libellous matter in haec verba.] [Second Count for a Libel : And the defendant, further contriving and intending as aforesaid, heretofore, to wit, on [^c] falsely, wickedly, and maliciously did compose and publish a certain other false, scandalous, malicious, and defamatory libel of and concerning the plaintiff, and of and concern- ing [&/-C. if there he a special inducement refer to the matter thereof as before,] containing [&fc. as before.] By means of the committing of which said grievances by the defendant, the plaintiff hath been and is greatly injured in his said good name, credit, and reputation, and brought into public scandal and disgrace, and hath been and is shunned and avoided by divers persons, and otherwise injured ; To the plaintiff's damage of — dollars, and therefore he brings his suit, &.C. No. 8. For Debauching Plaintiff"' s Daughter and Servant ; 2 Chit. Prec. 570. For that whereas the defendant, contriving and wrongfully intend- ing to injure the plaintiff, heretofore, to wit, on [^c] and on divers 292 CASE. Declarations. days and times after that day, and before the commencement of this suit, debauched and carnally knew E. F., being the daughter of the plaintiff, and who then and during all the time aforesaid was and yet is the servant of the plaintiff, whereby the said E. F. became preg- nant and sick with child, and so continued for a long time, to wit, nine months, that is to say, until the — day of — , A. D. — , when she was delivered of the child with which she was so pregnant, by means of which said premises, the said E. F. was unable to do or perform the necessary affairs and business of the plaintiff, being her (father and) master as aforesaid, for a long time, to wit, from the day and year first mentioned hitherto, and the plaintiff during that time hath lost and been deprived of the services of the said E. F., and by rea- son of the premises, the plaintiff necessarily incurred a great expense, to wit, to the amount of — dollars in and about the nursing and ta- king care of the said E. F. and the delivery of the said child upon the occasion aforesaid, and incidental thereto : To the damage of the plain- tiff of — dollars, and therefore he brings his suit, &c. No. 9. For Criminal Conversation ; 2 Chitt. Prcc. 540. For that whereas the defendant, contriving and wrongfully, wicked- ly and unjustly intending to injure the plaintiff, and to deprive him of the comfort, fellowship, society, aid and assistance of E. [the wife's christian name,] the wife of the plaintiff, and to alienate and destroy her affection for the plaintiff, heretofore, to wit, on the — day of — A. D. — , [the day, or about the day the first act of adultery can he proved,] and on divers other days and times after that day and be- fore the commencement of this suit, wrongfully, wickedly and un- justly debauched and carnally knew the said E. then and still being the wife of the plaintiff, and thereby the affection of the said E. for the plaintiff was then alienated and destroyed ; and also by means of the premises the plaintiff hath thence hitherto wholly lost and been deprived of the comfort, fellowship and society of his said wife, and of her aid and assistance in his domestic affairs, which the plaintiff during all that time ought to have had, and otherwise might and would have had : To the damage of the plaintiff of — dollars, and therefore he brings his suit, &c. No. 10. Against Judges of Election for refusing Plaintiff's Vote ; 1 1 Ohio Rep. 376. Edward Thacker complains of John Hawk, E. Leston and John Davis, in a plea of the Case, for that whereas the said plaintiff on the third day of August, A. D. 1840,at Gallia County aforesaid, was res- CASE. 293 Declarations. ident of the township of Wilkesville, in said County of GaUia, and then and there a legal voter within the same at all elections of Justice of the Peace within said township ; That on the third day of August, A. D. 1840, an election was held in said township of Wilkesville for one Justice of the Peace for said township, and that the said defen- dants were then and there trustees of said township of Wilkesville, and then and there elected as judges of said election of such Justice of the Peace, to wit, at the County aforesaid ; and that the said plain- tift^ so as aforesaid being a legal voter at such election of a Justice, did then and there offer his vote to said defendants, for such Justice, and that said defendants maliciously and wickedly intending to wrono- the said plaintiff and deprive him of the invaluable right of suffrao-e, refused to receive said vote of said plaintiff, the said defendants then and there well knowing that said plaintiff was legally entitled to vote at such election ; whereby the said plaintiff in fact avers, that he was then and there wholly prevented by said defendants from so voting at said election. And also for that whereas on the 5th day of August, A. D. 1840, at Gallia County aforesaid, the said defendants were trustees of the township of Wilkesville, in said County, legally elect- ed and qualified for said office, and that the legal voters of said town- ship of Wilkesville, on the said 3d day of August, 1840, at the place for holding elections in said township, did convene for the purpose of electing one Justice of the Peace for said township, the said defen- dants as such trustees, having before that time called a meeting of said legal voters according to law, to be holden on said 3d day of August, A. D. 1840, for the purpose aforesaid, and that said defen- dants did then and there preside as judges of said election at said meeting so as aforesaid called by said defendants, for electing such Justice of the Peace, and did then and there in their said capacity of such trustees and judges of said elections, call upon all persons be- longing to said town of Wilkesville qualified according to law, to vote at said election, to bring forward and deliver to them, as judges of said election, their votes for one Justice of the Peace within and for said township of Wilkesville ; and the said plaintiff did then and there, in said meeting, and before the close of the polls by said de- fendants, offer to them the said defendants, his vote for a Justice of the Peace, and did then and there request the said defendants as such judges to receive and count the same, he the said plaintiff, then and there being a legal voter in said township of Wilkesville, at such elec- tion of a Justice of the Peace, yet the said defendants well knowing the said plaintiff to be qualified as a legal voter at such election, and that his vote ought to be received and counted by them in their said capacity, did at such meeting so held, on said 3d day of August, A. D. 1840, for such election of a Justice of the Peace, at all times be- fore the close of the polls as aforesaid, and during the continuance of said election, refuse to receive and count the vote of the said plaintiff, 294 CASE. Declarations. offered as aforesaid : by reason of all which the said plaintiff wliolly lost his privilege of voting at said election in the choice of a Justice of the Peace as aforesaid. And also for that whereas the said defen- dants on the 3d day of August, A. D; 1840, at Wilkesville, in said County of Gallia, acted as judges of a certain election of one Jus- tice of the Peace for said township of Wilkesville, a meeting of the legal voters of said township having been before that time called by the trustees of said township, to be held on the said third day of Au- gust, A. D. 1840, for the election of one Justice of the Peace of the aforesaid township ; that said plaintiff was then and there a legal vo- ter of said township, qualified to vote at said election ; that the said plaintiff being so qualified as such voter, did then and there, and be- fore the closing of the polls, offer to said defendants as judges of said election, his vote for a Justice, and requested said defendants to re- ceive and count the same, yet the said defendants did then and there refuse to receive and count the vote of said plaintiff, offered as afore- said ; by reason of which the said plaintiff wholly lost his privilege of voting at said election in the choice of a Justice of the Peace as aforesaid ; To the damage of tiie plaintiff five hundred dollars, &c. No. 1 1 . Against Proprietor of a Mill Dam for Overjioioing Plaintiff's land.; 9 Ohio Rep. IS,"" Z. K. was summoned to answer unto B. H. in a plea of the Case ; and thereupon the plaintiff, by — his attorney, complains of the said defendant for that the said plaintiff on the third day of September, 1832, at Franklin, in the County of Portage aforesaid, and from the said third day of September, A. D. 1832, until the commencement of this suit, was lawfully seized and possessed of a tract of land, in lot twenty-five, in Franklin, bounded as follows : [desci'iption,] of all which the said defendant then and there had notice ; but he the said defendant, intending and contriving to injure the said B. H., and to deprive him of the benefit of his land aforesaid, has ever since the said third day of September, A. D. 1832, until the com- mencement of this suit as aforesaid, maintained and kept up and continued a mill dam in the township of Franklin, in said County of Portage, across the Cuyahoga River, then and there running, and by (a) Mills, Water privileges, and Com. Lmv Rep. 143 : 20 do. 287 ; the like, General Doctrines ; 27 ^?zi>-. II ^/o, 207 ; 1 Fai^e, 197; I Sug. Com. Law Rep. 11 ; 10 Wend. 167; Vend. 32, n. 1; Jd. 99, n. Con- 21 Wend. 290. No action lies a- struction of water works — laying gainst a former owner not in posses- water pipes, &c.; 3 Paige, 577 ; 3 sion ; 15 Wend. 522. Parol license Monroe. 522 ; 7 do. 327. For Ca- to build mill dam, &c., General Doc- ses in Ohio, See Wilcox's Digest, trines; 15 Wend. 380; 28 Eng. 13,214,313. CASE. 295 Pleas in Abatement and in Bar. means thereof caused the waters of said River to overflow, cover and drown the said land of the said B. H. from the said third day of Sep- tember, A. D. 1832, until the commencement of this suit, whereby the grass and herbage growing on the land aforesaid of the said B. H. within the time aforesaid, and which would otherwise have been of great value, to wit, of the value of one hundred dollars, was made worse, injured and spoiled, and his land aforesaid, by means of the dam aforesaid, was rendered wet, muddy and impassable; and the said B. H. during the time aforesaid, by means of the dam aforesaid, was prevented from using his said land, and taking or having the ben- efits or profits thereof, and was also prevented from having and using a certain waterfall and mill privilege which the said B. H. otherwise would have had and used. To the damage of the said B. H. of two hundred dollars, and therefore he brings his suit, &c. Pleas in Abatement and in Bar. For Pleas in Abatement and proceedings thereon. See Pleas in Abatement in Assumpsit, and in Debt, Ante. 108, 237. Pleas in Bar.^ No. 1. Not Guilty. C_ D— , ^ ads. > In Case. A— B— , ) And the said C. D. comes and defends, &-c., and says tJiat he is not guilty of the said supposed grievances laid to his charge, in man- ner and form as the said A. B. hath complained against him, and of this he puts himself upon the country, and the said A. B. doth the like. By T. his Ally. Trial by Jury — Verdicts^-Judgments. For general Rules regulating Trials by Jury, See Trials in As- sumpsit, Ante. 150. (b) For general Rules regulating Assumpsit, Ante. 116. Pleas in Bar, See Pleas in Bar in 296 CASE. Verdicts and Judgments. Verdicts and Judgments. For general Rules regulating Verdicts and Judgments, See Ver- dicts and Judgments in Assumpsit, Ante. 151. Verdict and Judgment for Plaintiff' on Issue of Not Guilty. In Case. This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn, the truth to speak upon the issue joined between the parties, upon their oaths do say* that the said C. D. is guilty in manner and form as the said A. B. hath complained against him, and they assess the damages of the said A. B. by reason of the premises to — dollars : Therefore It is considered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid in form aforesaid assessed, and also his costs in this behalf expended, taxed to — dollars. Verdict and Judgment for Defendant on Issue of Not Guilty. [Proceed as in the last Precedent to the (*) — That the said C. D. is not guilty in manner and form as the said A. B. hath complain- ed against him : Therefore It is considered, that the said C. D. go hence without day, and recover of the said A. B. his costs herein ex- pended, taxed to — dollars. For Forms of Judgments, on Demurrer, Non-suit, Abatement, Default, &c., See, same Titles in Assumpsit. For Forms of other Verdicts and Judgments, See same Titles in Assumpsit and IJebt, which, with slight alterations, are appli- cable to Case. TROV^ER. 297 Summons. TROVER.^ The action of Trover is, in general, commenced like the action of Assumpsit, by suing out a Summojis, or Capias ad respondendum. I. Summons. The Summons is issued, as a matter of course, upon filing a Prae- cipe with the Clerk of the proper Court. See Prcecipe in Assump- sit, Ante. 12. (a) One employed to sell goods on Commission pawns them, the owner may have Trover after demand and refusal ; 2 Eng. Com. Laiv Rep. 472, When a demand is necessary ; 2 Eng. Com. Law Rep. 343 ; 2 C. M.&R. 495; 1 Gale, 244, S. C. A mill with machinery annexed to the freehold, was leased for years ; the tenant severed the machinery and it was seized in execution and sold as his property ; the landlord may have Trover, though the term be not expired ; 7 Eng. Com. Law Rep. 272; 16^0.61. Demand of goods and refusal — Tender of the same goods before suit brought — There is no conversion ; 28 Eng. Com. Law Rep. 269. Trover on a naked jonor possession — Defendant cannot set up property in a third person without showing some title under him ; 11 Wend. 54. It lies against one after he has sold the goods ; 22 Wend. 295, Trover lies for the conversion of any kind of goods or chattels, or personalty ; as deeds or agreements, bills of exchange, trees or earth when severed, or cattle, or the undi- vided part of a chattel ; 1 Chitt. PI. 146. Conversion is the gist of the action. It consists m any tortious act by which the defendant deprives the plaintiff of his goods, either wholly, or for a time ; 2 Saund. 46, 47, n.; 2 Stark. Ev. 842 ; Tit. Tro- ver. Where a sale is made of 600 barrels of flour, out of a much lar- ger number in a warehouse, and an order given for their dehvery, but no selection is made ; Trover will not lie; Woods v. McGee, 7 Ohio Rep. 127, Part 2d. Trover hes a- gainst the purchaser and constable, for the landlord's share of a crop, seized and sold on execution against the tenant ; Case v. Hart, 11 Ohio Rep. 364. Where property is dere- lict and abandoned by the owner, it belongs to him who first finds it and reduces it to possession — Thus,where a special verdict finds, That a vessel with money on board, was wrecked on Lake Erie, and the money was derelict and abandoned by the own- er ; and afterwards the defendant raised the vessel and found the mon- ey — No action lies by the original owner for the money ; Wyinan v, Hulbmt, 12 Ohio Rep. 81. 38 298 TROVER. Summons — Capias ad Respondendum. Precipe for Summons in Trover. In Trover. — Damages — Dollars. Issue a Summons returnable [forthwith if in Term time, or at next Term if in Vacation,] Indorse, " Suit brought, &c." See PrcBcipe in Assumpsit, Ante. 12. T. S. Atty./or Pltff. To the Clerk of — Common Pleas. Dated, &.c. Summons. The State of Ohio, To the Sheriff of — County, Greeting : We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith [if in Term time,] or, on the first day of their next Term [if in vacation,] to answer unio A. B. in a plea of Tro- ver Damages — dollars ; and have you then there this wrif Witness, F. C. Clerk of said Court of Common Pleas, at C, this — day of — , A. D. — . F.C. Clerk. ~ For the Forms of Alias, Pluries, and Testatum Summons, See Ante. 15. II. Capias ad respondendum. When a Capias may be sued out. See Ante. 20. (a) For the proper Indorsement, See Summons in Assumpsit, Ante. 14. TROVER. 299 Declarations. PRa:ciPE FOR Capias. A— B— , ^ V. > In Trover. — Damages — Dollars. C— D— , ) Issue a Capias ad respondendum returnable forthwith, [if in Term time] or, at the next Term [if in vacation]. Indorse, " Suit brought, &c." See Precipe for Capias in Assumpsit, Ante. 21, 23. Hold to bail in the sum of — dollars, [double the amount.] To the Clerk of — Common Pleas. T. S. Atty.for Pltff. Dated, &,c. Writ of Capias ad respondendum. The State of Ohio, To the Sheriff of — County, Greeting : We command you to take C. D. if he may be found in your baili- wick, and him safely keep, so that you have his body before our Court -of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith, or, on the first day of their next Term, to answer unto A. B. in a plea of Trover. Damages — dollars ; and have you then there this writ. Witness, ^. C. Clerk of our said Court of Common Pleas at C. this — day pf ■^, A. D. — . F. C. Clerk. For the proper Indorsements to be made upon this writ, the Forms of an Alias, Pluries, and Testatum Capias, Bail Bond to the Sher- iff, Recognizance of Special Bail, Bail piece, and Appearance of De- fendant, &c. See Ante. 21 to 35. / \ Declarations. No. 1. Common Counts for Cattle, Bonds, Deeds, &fc. f Supreme Court, or, Court of Common Pleas : — County ss J 'Term [The Term to which the writ was returned, ' I or. The Term at which the cause was brought into [^ Court by Appeal or Certiorari.] A. D. — . 300 TROVER. Declarations. A. B. complains of C. D/ in a plea of Trover, for that whereas the said A. B. on — at — was lawfully possessed, as of his own pro- perty ,*" of certain cattle, deeds, bonds, promissory notes, bank notes, goods and chatties, to wit, ten horses, ten mares, ten geldings, ten bulls, ten cows, &c., [stating the several kinds of cattle] and also a certain deed, dated, die.," purporting to be a conveyance from the said C, D. to the said A. B. of certain tenements therein mentioned ; and a certain bond sealed with the seal of the said C. D., whereby he became bound to the said A. B. in the penal sum of — dollars, and then and yet in full force ; and a certain promissory note made by the said C. D, whereby he promised to pay the said A. B. or order — dollars at a certain day therein mentioned and now past ; and also divers, to wit, ten notes of the President, Directors, and Company of the Bank of the United States, commonly called bank notes, for the payment of — dollars each ; and also divers, to wit, ten pieces of the current coin of the United States, commonly called dollars [oj' half (a) For Forms of Commencement — Description of Parties, &c., See Common Counts in Assumpsit, note (b), Ante. 36 : Also, Declarations in Assumpsit on Promissory Notes, Ante. 46. (b) As to this allegation, See, 8 T. E., 394, 399 ; 2 Saund., 47. In Selioyn, N. P., 1157, note 10, it is said the omission is aided by verdict, but not by judgment by default ; 2 Chitt. PL, 358. (c) It is unnecessary to allege the date; 1 Wits., 116; Bac. Abg. Trover F.; Ld. Raym., 276 ; Salk., 654. In an action for an injury to, or for the conversion of, goods, their quantity or number, quality and val- ue, should be stated, as " twenty ta- bles, twenty chairs," &c,, but a more particular description of the nature or quahty of the goods need not be given ; 1 Saund., 333, n. 7 ; 2 id., 74, n. 1 ; 1 Chitt. PI., 377. A dec- laration in trover for " divers goods and chattels," would be substantially bad ; Id.; Pope v. Tillman, 7 Taunt., 642 ; 1 Moor., 386, S. C. And it seems that a declaration for ten "ar- ticles of household furniture," or ten "articles of wearing apparel," is alsobadongeneraldemurrer ; Holmes V. Hodgson, 8 Moor, 379. Trover for " a ship with the apparel and ap- purtenances ;" the plaintiff having failed as to the ship, was not allowed to set up a distinct title to a new boat and cordage ; Shannon v. Owen, 1 M. & R., 392. Trover for " twenty acres of barley," held good, as only designating the quantity of corn ; Joyce V. Hay man, 1 Alcock & Na- pier, 22, (Irish.) The damages should be the value of the goods at the time of the conversion ; Mercer v. Jones, 3 Camp., 477 ; I)avis v. Oswell, 7 C. & P., 804: See 6 Ohio Rep., 358 : or it seems at any subsequent time, at the discretion of the jury ; Greening v. Wilkinson, 1 C. & P., 625. The defendant cannot on not guilty prove title in another, to miti- gate damages; Finch v. Blount, 7 C. & P., 478. If the plaintiff claim special damages, that is, damages not necessarily consequent on the conversion, he should charge them in his declaration ; Moon v. Raphael, 2Bing. N. C, 310; Davis v. Os- well, 7 C. & P., 804. TROVER. 301 Declarations. dollars, quarter dollars, eagles, crowns, ^c] ; and also divers, to wit, ten tables, ten chairs, &c. {specifying the articles, and descri- bing each as generally as possible, omitting the quality, as " ma- hogany, black walnut," «^c.] of great value, to wit, of the value of — dollars. And being so possessed, the said A. B. afterwards on the same day lost the same, and the same afterwards on the same day came into possession of the said C. D. by finding : Yet the said C. D., though he well knew the same to belong to the said A. B., yet intending to injure and defraud him thereof, refused to deliver the same to the said A. B., though thereto requested, but afterwards on the same day, converted the same to the use of the said C. D. ; To the damage of the said A. B. — dollars : and thereupon he sues, &c. By T., his Att'y. No. 2. By Administrators, for Property belonging to the Intestate. [Commence as in No. 1. — A. B. as administrator of E. F. com- plains of C. D. for that whereas the said A. B. as administrator as aforesaid, on — at — was lawfully possessed of, &c., the property of said intestate ; and being so possessed then and there lost the same ; and afterwards, there on the same day, the same goods came to the possession of the said C. D. by finding ;'' Yet the said C. D., though he well knew the same to belong to the said A. B. as administrator as aforesaid, yet intending to injure and defraud him thereof, refused to deliver the same to the said A. B. as administrator as aforesaid, though thereto requested, but afterwards, on the same day, converted the same to his own use ; To the damage of the said A. B. as adminis- trator as aforesaid, — dollars, and thereupon he sues, &c. And the said A. B. brings into Court his Letters of Administration, &c. No. 3. The like, by Executor or Administrator for a Conversion in Testator's life time : 2 Chitt. Free, 665. [Commence as in No. 1. — For that whereas the said E. F. in his life time, to wit, on [&c.] was lawfully possessed of divers goods and chattels, to wit, [&c.] of great value, to wit, of the value of — dollars, as of his own property ; and being so possessed thereof (a) If Trover were first, and ad- Mod. Ent., 366. The executor has ministration afterwards, the plaintiff a constructive possession from the may declare specially, or lay trover testator's death ; \ T. R., 480. after the adminis tration ; Com6.,304; 302 TROVER. Pleas in Abatement and in Bar. the said E. F. in his Vik time afterwards, to wit, on the day and year aforesaid, casually lost the said goods and chattels out of his pos- session, and the same afterwards and in the life time of the said E. F., to wit, on the day and year aforesaid, came to the possession of tiie defendant by finding ; Yet the defendant well knowing the said goods and chattels to be the property of the said E. F. in his life time, and of the plaintiff as executor [or administrator] as aforesaid, after the decease of the said E. F., but contriving and intending to injure the said E. F. in his life time, and the plaintiff as executor [or administrator] as aforesaid, after the death of the said E. F. did not deliver the said goods and chattels, or either of them, or any part thereof, to the said E. F. in his life time, nor hath he delivered the same or any part thereof, to the plaintiff as executor [or administra- tor] as aforesaid, since the death of the said E. F. although often requested so to do, and the defendant afterwards and in the life time of the said E. F., to wit, on [&c.] aforesaid, converted and disposed of the said goods and chattels to his own use. [If there be doubt as to tjie time of conversion, add second Count for conversion after the death of Testator or Intestate, and Conclude as in the last Pre- cedent.] Pleas in Abatement and in Bar. For Pleas in Abatement and Proceeding thereon. See Pleas in Abatement in Assumpsit, and in Debt, Ante. 108, 237. Pleas in Bar.'' No. 1. General Issue — Not Guilty. C— D— , ^ ads. >In Trover. A— B— , ) And the said C. D. comes and defends, &c., and says, that he is not guilty of the said supposed grievances laid to his charge, in man- ner and form, as the said A. B. hath complained against him ; and of this he puts himself upon the country, &c. And the said A. B. doth the like. By S., his Att'y. (a) For general rules regulating Assumpsit, Ante, 116. Pleas in Bar, See Pleas in Bar in TROVER. 303 Pleas iQ Bar. No. 2. Lien for Work done in respect of the Goods : 1 Chitt. Prec, 691.'' [Commence as in No. 1, — And for a further plea in this behalf, the defendant saith, that the said A. B. ought not to have or maintain his action aforesaid against him, because he says that the said goods and chattels in the said declaration mentioned, were, before the said time when, &c., to wit, on [&c.] delivered by the plaintiff to the defendant, to be by him the defendant, in the way of his business of a — repaired [as the case may be] for the plaintiff for reward to the defendant, and upon the terms that the price and value of the work to be done, and the materials for the same to be provided by the defendant in repairing the said goods and chattels as aforesaid, should be paid when the said repairs were completed, [and that the defendant should have a lien on the said goods and chattels for such price and value, and be entitled to hold the same goods and chattels as a security for the payment of such price and value by the plaintiff,] and the defendant avers that he then received the said goods and chattels of and from the plaintiff on the said terms and not otherwise, and before the said time when, &,c., to wit, on the day and year last aforesaid, did work and found the necessary materials in and about the repairing, and then repaired the said goods and chattels for the plaintiff upon the said terms, and the said repairs were then com- pleted, and the reasonable price and value of the same therefore payable to the defendant amounted to a certain sum, to wit, — dol- lars, whereof the plaintiff then had notice, and was then requested by the defendant to pay him the said sum, but the plaintiff hath neglected so to do, [nor hath he tendered to the plaintiff the said sum of — dollars, or any part thereof,] and the same before and at the said time when, &-c., and at the time of the commencement of this suit was and is wholly due and in arrear, wherefore the defendant hath continually held and detained, and now holds and detains the said goods and chattels, as such lien and security for the said sum of — dollars, and at the said time when, &,c., refused to deliver up the same to the plaintiff on being then required by him so to do, as the defendant lawfully might, being the said supposed conversion in the declaration mentioned ; and this the defendant is ready to verify, &c. (a) For general Rules regulating No. 2, note (a). Ante. 271. Liens, See Pleas in Bar in Detinue, 304 TROVER. Verdicts and Judgments. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in Assump- sit, Ante. 150. Verdicts and Judgments. Verdict and Judgment for Plaintiff on Plea of Not Guilty. A— B— , ^ V. > In Trover. C— D— , ) This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say,* that the said C. D. is guilty, in manner and form, as the said A. B. hath complained against him; and they assess the damages of the said A. B. by reason of the premises, to — dollars ; Therefore It is considered that the said A. B. recover of the said C. D. the said sum of — dollars, his damages aforesaid, in form afore- said assessed, and also his costs herein expended, taxed to — dollars. The like, for Defendant. [P7'oceed as in the last Precedent to the * — that the said C. D, is not guilty in manner and form as the said A. B. hath complained against him ; Therefore It is considered that the said defendant go hence without day, and recover of the said A. B, his costs herein expended, taxed to — dollars. For the Forms of Judgments on Demurrer, Non-suit, Abatement, Default^ &c.. See Same Titles, in Assumpsit. TRESPASS. 305 Summons. TRESPASS The action of Trespass is, in general, commenced like the action of Assumpsit, by suing out a Summons, or, Capias ad responden- dum. I. Summons. The Summons is issued, as a matter of course, upon filing a Prae- cipe with the Clerk of the proper Court. See Precipe in Assump- sit, Ante. 12. (a) When Trespass lies, and when Case; Ohio Stat., vol. 42, p. 72: See 16 Eng. Com. Law Rep., 19 ; 2 do. 278. Commissioners of Sewers in England have not such a possession as will sustain Trespass ; 4 Eng. Com. Law Rep., 219: But Canal contractors have ; 7 do., 203. Divers cases where Trespass will not lie ; as when a man to save his life runs across another's land, &c., 11 Eng. Com,. Law Rep., 337 ; 20 Vin. Mg., 527. When a land- lord, after expiration of the term, enters forcibly, the tenant's wife be- ing in possession, and expels the wife, and puts out the goods, Tres- pass lies ; 25 Etig. Com. Law Rep., 398 : See 9 do., 280 ; S. P. 3 Johns. Rep., 237 ; 4 do., 150. That a Tres- pass was not wilful and malicious, may be shown in mitigation of dam-~ ages ; 14 Wend., 239. A Tenant in removing a dung heap, removes some of the virgin soil. Trespass de bonis, or Trover, Hes ; 25 Eng. Com'. Law Rep.,, 563. Trespass hes against a Lunatic for beating a man, because it is but to repair him in damages; 20, Tm. Mg., 426. It lies a/)fcr my alienation, for a tres- pass Aone. before ', do., 527. What subsequent acts make a Trespass when the person Avas not pres- ent ; 2 Litt., 240. Trespass, and Case for tort, do not abate by death of plaintiff; Ohio Stat., vol. 43, p. 114. One put his fence on lands of U. States — a third person bought the land — the first then removed the fence — Trespass lies ; 5 Black/. ,555. A case of Trespass " for heaps of stones," without any certainty, cited ..Arguendo ; But Doderidge said that the counsel who cited it never saw an action for a heap of stones; 7 Vin. Mg., 383. " Casting stones at the Plaintiff," molliter et molli manu, is not a good justification ; 20 Vin. Mg., 429. Justification when there are several defendants ; 2 Litt., 240. For Cases in Ohio, See Wilcox's Digest, 501. 39 306 TRESPASS. Capias ad Respondendum. PRiECiPE FOR Summons in Trespass. A— B— , ^ V. > In Trespass. Damages — Dollars. C— D— , ) Issue a Summons returnable [forthwith if in Term time, or, at next Term, if in vacation.] Indorse, " Suit brought," &c. See Pi'(scipe in Assumpsit, Ante. 12. T., Att'y for Pl'tiff. To the Clerk — Com. Pleas. Dated, &c. Writ of Summons. The State of Ohio, To the Sheriff of — County, Greeting : We command you to summon C. D. to appear before our Court of Common Pleas, of the County aforesaid, at the Court House in said County, forthwith, [if in Term Time] or, on the first day of their next Term, [if in vacation] to answer unto A. B. in a plea of Trespass. Damages — dollars ; and have you then there this writ. Witness, T. C. Clerk of our said Court of Common Pleas, at C. this — day of — A. D. — . T. C. Clerk. For the forms of an Alias, Pluries, and Testatum Summons, See Ante. 15. II. Capias ad respondendum. When a Capias may be sued out. See Ante. 20. Precipe for Capias. A_ B— , ^ V, [^ I" Trespass. — Damages — Dollars. C— D— , ) Issue a Capias ad respondendum returnable forthwith [if in Term TRESPASS. 307 Declarations. time] or, at the next Term [if in vacation]. Indorse, " Suit brought, &c." See Praecipe for Capias in Assumpsit, Ante. 21, 23. Hold to bail in the sum of — dollars, [double the amount sworn to.] To the Clerk of — Common Pleas. Dated, &c. T. S. Atfy. for Pl'tff. For the proper Affidavits, &-c.. See Capias in Assumpsit, Ante. 21, 23. Writ of Capias ad respondendum. The State of Ohio, To the Sheriff of — County, Greeting : We command you to take C. D. if he may be found in your baili- wick, and him safely keep, so that you have his body before our Court of Common Pleas of the County aforesaid, at the Court House in said County , forthwith, or on the first day of their next Term, to answer unto A. B. in a plea of Trespass. Damages — dollars. Witness, F. C. Clerk of our said Court of Common Pleas, at C. this — day of — A. D. — . F. C. Clerk. For the proper Indorsements to be made upon this Writ, the Forms of an Alias, Pluries, and Testatum Capias, Bail Bond to the Sher- iff, Recognizance of Special Bail, Appearance of Defendants, &c., See Ante. 21 to 35. Declarations. No. 1. Assault and Battery. '^Supreme Court, or, Court of Common Pleas, County, ss. > — Term, [the Term to which the writ was N returned. A. B. complains of C. D. in a plea of Trespass, for that* * the said (a) The word " whereas " here 713, note (a), would be demurrable ; 2 Chitt. Prec. 308 TRESPASS. Declarations. C. D. on — * at — with force and arms'" in and upon the said A. B. made an assault, and him then and there beat, bruised, wounded and evil entreated, and other enormities to the said A. B. the said C. D. then and there did ; against the peace, and to the damage of the said A. B. — dollars; and thereupon he sues, &c.'= By T. his Atty. No. 2. Assault, Battery and Wounding; 2 Chitt. Prec. 713. [Commence as in No. 1, Ante. 307, — For that the defendant on — at — with force and arms assaulted the plaintiff', and beat, bruised, [pushed, dragged and pulled about, kicked, wounded,''] and ill-trea- ted him, whereby'' the plaintiff' became, and was, sick, sore, lame and disordered, and so continued for a long time, to wit, thence hitherto, during all which time the plaintiff" suffered great pain, and was pre- vented from transacting his necessary affairs and business, and also thereby, the plaintiff was obliged [to incur, and did then and there (a) The exact clay is not materi- al ; 2 Chitt. Prec. 715. " xMade an assaidt^^ on divers days, would be bad on special demurrer ; aliter it seems, if the allegation be " assault- ed" on divers days; See 6 East, 395. There should be a separate count for each distinct assault on sev- eral occasions on the same day, or different days. Upon one count for one assault, no second assault can be proved ; See 1 Saund. 299, note 6 ; 1 Camp. 473. (b) Vi et armis necessary ; Chit. PL 8: 2 Chitt. Prec. 715. (c) Under a count for an assault and battery, the former only may be proved ; Pro. Jib. Trespass, pi. 40 ; 2 Chitt. Prec. 715. All concerned in the commission of a trespass arc principals ; an As- sault and Battery may be committed by a party not present, if he be a principal actor, or adviser and promp- ter in making the attack ; and if one person employ another to commit an Assault and Battery, or any other trespass, and the act be perpetrated, both are guilty ; Bell v. Miller, 5 Ohio Rep. 250. In Assault and Battery, where there is a justification of molliter mcinus, the plaintiff can- not be admitted to prove excess un- less he reply specially ; Parish v. Rigdon, 12 Ohio Rep. 191. Assault and Battery does not lie against a Corporation ; nor can a Corporation be joined in such action with other defendants ; Orr v. Bank U. States, 1 Ohio Rep. 36 ; S. P. Foote v. The City of Cin. 9 Ohio Rep. 31. In Assault and Battery and false impris- onment, if the damages assessed are less than five dollars, the plaintiff re- covers no costs ; Bell v. Bates, 3 Ohio Rep. 380. See Ante. 305, note (a). (d) Use only such of these words as are warranted by the fact; See supra, note (b). (e) Adopt only so much of the following statement of damage as can be proved. In cases of slight as- saults, without special damage, pro- ceed at once to the alia enormia ; 2 Chitt. Prec. 713. TRESPASS. 309 Declarations. incur, or " to subject himself to liability to pay, and became liable to pay"-] great expenses, to wit, to the amount of — dollars, in and about the endeavoring to be cured of the injuries so sustained by him ; and thereby also, divers large quantities of blood which issued and flowed from the said wounds of the plaintiff, ran and flowed on the clothes and wearing apparel, to wit, one coat and one waistcoat, one pair of trowsers and one shirt of the plaintiff, wherewith the plaintiff was then clothed, of the value of — dollars, and greatly soiled and damaged and spoiled the same, so that the same thereby became of little or no use or val- ue to the plaintiff, and other wrongs^ to the plaintiff then did : to wit, at the County aforesaid, against the peace and dignity of the State of Ohio, and to the damage of the plaintiff of — dollars ; and therefore he brings his suit, &c. No. 3. False Imprisonment ;^ 2 Chitt. Prec. 715. [Commence as in No. 1, Ante. 307, — For that the defendant on — at — with force and arms assaulted the plaintiff, and then seized and laid hold of, and beat the plaintiff", and with great force and vio- (a) These words are proper if the expenses were not paid before the ac- tion ; See Pritchett v. Boevey, 1 C. & M. 775. (b) The alia enormia does not ap- pear to be an essential allegation. It is no part of the declaration, and no facts can be given in evidence under it, which might consistently with de- cency be stated in the declaration ; Lowden v. Goodrick, Peake R. 46, 62; 3d ed. 64, 87. Semble, dama- ges and matters naturally arising from the act complained of and sta- ted, may be proved ; Bull. N. P. 89 ; Holt, 699; 1 Stark. R. 98; 1 Ch. PI. 6 ed. 397, 5 ed. 422. (c) What shall be deemed a false imprisonment ; See 1 Chit. G. P. 47 : 2 Stark. Ev. 1 1 1 1 : 3 Bla. Com. 127, 138. Bare words do not in gen- eral amount to an imprisonment. There must be some act whereby the plaintiff was deprived of his person- al freedom for some portion of time, however short ; there must be a lay- ing hold of the person, or some actual restraint on submission without force; and in this instance actual laying on the hand is not necessary ; 2 Stark. Ev. nil, 1112. If an officer or other person say, " You are my pris- oner, &c.," or state that he holds a warrant, and that the party must ac- company him, and he submit, in ei- ther case there is a sufficient impris- onment ; Id. and note (y) ; Bull. N. P. 62; 12 Eng. C. L. Rep. 171; i7 Eng. C. L. Rep. 244 ; and See 21 Eng. C. L. Rep. 449. Where upon a magistrate's warrant being shown to the plaintiff, he voluntarily and without compulsion attended the constable, held no imprisonment ; 2 N. R. 211. And in trespass for false imprisonment, proof must be given of circumstances from which the Court and jury may decide whether there was or was not a re- straint or detention of the person ; and it is not enough for witnesses to swear that they considered the plain- 310 TRESPASS. Declarations. lence pulled and dragged him about,^ and also then and there im- prisoned the plaintiff, and kept and detained him in prison there for a long time, to wit, — then following, [or then and there forced and compelled the plaintiff to go, and caused him to be forcibly conveyed in custody in and along divers public streets and highways to a cer- tain police station, and there imprisoned the plaintiff and kept him detained in prison there without any reasonable or probable cause whatsover, for a long space of time, to wit, for the space of — then next following, to wit, at the County aforesaid, at the expiration whereof, the defendant forced the plaintiff to go, and caused him to be forcibly conveyed in custody to a certain police office, and there again imprisoned the plaintiff for a long time, to wit, — then follow- ing, to wit, at the County aforesaid," of course the above statement must depend on and be varied by the facts,] contrary to law [and under a false and unreasonable assertion, color and charge, that the plaintiff had committed an offence punishable by law, to wit, that he had committed felony,*" whereby the plaintiff was then and there not only hurt, bruised and wounded, and suffered great anguish and pain of mind and body, and was prevented from attending to his lawful affairs, but was also thereby then and there greatly expesed and in- jured in his credit, reputation and circumstances, and was subjected and put to divers expenses, to wit, to the amount of — dollars, in order to obtain, and in obtaining his liberation from the said impris- onment, to wit, at the County aforesaid,"^ [or " in order to obtain his liberation from the said imprisonment was obliged to find and procure and did procure bail, to wit, E. F. and G. H., for his appearance be- fore a justice of the peace, to answer a certain false and unfounded charge then and there made against him by the plaintiff, to wit, at the county aforesaid ;"] and other wrongs, &c. [Conclude as in No. 1 Ante. 308. tiff was in custody, and thought that tention of a party in the street against he was under restraint, nor is it e- his will is an imprisonment, nough to show that the defendant at a police office stood before the plain- (a) If the plaintiff were hand- tiff and said, "You cannot go away niffed, state the fact thus, "and then until the magistrate comes," if it ap- and there put certain handcuffs on pear that he relinquished that atti- the plaintiff's wrist, and handcuffed tndeand went to another part of the the plaintiff and kept him so hand- office before the plaintiff had made cuffed for a long time, to wit, — hours any attempt to depart; 25 Eng. C. then following." L. Rep. 512. An imprisonment m- . . g^^ ^ M. & Sel. 77. eludes an assault; but a mere arrest ^ ' does not constitute a battery; Ske (^ Stark. &c. supra. The forcible de- (d). eludes an as said t; but a mere arrest does not constitute a battery; Ske (c) See Ante. 308, no/fs (c) and TRESPASS. 311 Declarations. No. 4. For Debauching Plaintiff''s Daughter.^ [Proceed as in No. 1, Ante. 307, to the * — the said C. D. on — at — with force and arms, assaulted, debauched, and carnally knew one E. F. then and from thence hitherto the daughter and ser- vant of the said A. B., whereby the said E. F. became pregnant and sick with child, and so continued for a long space of time, to wit, nine months then next following, at the expiration whereof the said E. F. on — at — was delivered of the child with which she was so pregnant as aforesaid ; by means of which said several premises, the said E. F. during all the said nine months, was unable to perform the necessary affairs of the said A. B. so being her father and master as aforesaid ; and thereby the said A. B. was during all the said nine months deprived of the service of his said daughter and servant, to wit, at — - aforesaid ; and was obliged to expend and did expend, divers large sums of money, in the whole amounting to — dollars in the nursing of his said daughter and servant, and in the delivery of the said child, &c. [Conclude as in No. 1, Ante. 308. No. 5. For Taking and Carrying away Goods. [Proceed as in No. 1, Ante. 307, to the * — the said C. D. on — at — with force and arms, took and carried away the goods and chattels, to wit, [describe the property as in Trover, Ante. 301,] of the plaintiff, then and there found and being, of great value, to wit, of the value of — dollars, and converted the same to the use of the said C. D. against the peace, &,c.'' [Conclude as in No. 1, Ante. 308.] No. 6. For Cutting and Carrying away Trees. [Proceed as in No. 1, Ante. 307, to the * — the said C. D. on — and on divers other days and times, between that day and the day of the commencement of this suit, with force and arms, cut down (a) See Form in C«se, Ante. 291. Chitt. PL, 410; 4 Burr., 2455; 3 TFils., 292. The value of the goods (b) It is necessary to allege that should be mentioned ; 2 Lev. 230 ; the goods are the plaintiff's. An Cro. Car., 307. The omission to omission of such allegation is not state the value, is aided by verdict ; cured by verdict ; Stra., 1023 ; 2 Com. Dig. PI., S AL 5 ; 2 Joh7is. Lev., 156; Salk., 549. As to the ^ejo.,421. description of the goods, See, 2 312 TRESPASS. Declarations. and destroyed the trees, to wit, — oaks, — ash, — elms, &c., of the said A. B. of great value, to wit, of the value of — dollars, then growing and being in and upon certain lands there situate, and took and carried away the same, and converted and disposed thereof to his own use ; and other injuries, &c.^ [Conclude as in No. 1, Ante. 308.] No. 7. Trespass quare clausum /regit. [Proceed as in No. 1, Ante. 307, to the * — the said C. D. on and on divers others days and times between tiiat day and the day of the commencement of this suit,'' with force and arms, broke and entered the close of the said A. B. situate, &,c.,'' and then and there cut down and destroyed the trees, to wit, one hundred oak trees, one (a) It is usual where the facts will support the allegation, to declare as Avell for breaking the close, as for cut- ting down the trees ; but where the land has been demised, and the trees were excepted in the lease, and in some other cases, the above count is most proper ; 1 Saund., 322, n. 5 ; 7 T. B., 13 ; 2 Chitt. PL, 420, n. (b) The trespass may be laid with a conlinuando, from such a day to such a day, when the trespass from its nature, is capable of a continuance. Breaking and entering the plaintiff's house or close may be laid with a continuando ; 1 Sid., 319; Ld. JRaym., 240. So, spoiling his grass, cutting his corn, cutting down his wood, &c., Jbid. So, trampling down grass, (fee, with the feet in walking ; Mod., 179. It is said that the act of a man, cannot properly be laid with a conlinuando, because he is necessarily interrupted by sleep, meals, &c. ; Salk., 039 ; Vin. Mg., 1, 2, (kj; 5 Bac. Mg., 192. The first day laid should be that when the first trespass occurred, or before, because the plaintiff would not be permitted tp give in evidence repeat- ed acts of trespass, unless commit- ted during the space of time laid in his declaration. Where a particular space of time is assigned by a con- tinuando for the torts, it seems to be- come a matter of description, and not a mere formal allegation of time ; but the conlinuando may be waived and one trespass, even before the first day laid, may be proved, for a conlinuan- do ought not to place the plaintiff in a worse situation than if one trespass only were laid ; Hume v. Oldacre, 1 Stark. R. 3.51 ; S. C. 2 Eng. Com. Law Rep., 422; 1 Chitt. PL, 289, 438. (c) If the description is general, and the defendant pleads libermn ten- emenlum, the plaintiff must make a new assignment, describing the place, where the trespass was committed, with proper certainty. Great care however is necessary here as well as in a new assignment ; as a material variance is fatal; 1 Saund., 299; Starkie's Ev. Tit. Variance, See Pleas in Trespass, Post No. 4, note (a). It is not correct to describe the close as abutting "towards," instead of "on" another close, &c. : But if premises be described as abutting on a house to the east, it may be north- east or southeast ; 1 Taunt., 495. TRESPASS. 313 Declarations. hundred ash trees, &c., of the plaintiff, of great value, to wit, of the value of — dollars, and the timber and wood thereof, amounting to a great quantity, to wit, — loads of timber, and — cords of wood of the said A. B. of great value, to wit, of the value of — dollars, took and carried away, and converted and disposed thereof to his own use; and other injuries, &c. [Conclude as in No. 1, Ante. 308.] Add count for cutting and carrying away trees. Ante. No. 5. No. 8. Tlie like, for Trespasses in Plaintiff^ s Dwelling House, and seizing Goods therein: 2 Chitt. Prec, 719. For that, the defendant, on [&,c.] at [&c.,] and on divers other days and times between that day and the commencement of this suit, with force and arms, broke and entered a certain dwelling house of the plaintiff, situate — , and then made a great noise and disturbance therein, and continued therein making such noise and disturbance for a long time, to wit, for the space of — , then next following, and then and there forced and broke open, broke to pieces and damaged, divers to wit, — doors of the plaintiff, of and belonging to the said house, and broke to pieces, damaged and spoiled divers, to wit, — locks, — staples, and — hinges, of and belonging to the said doors respective- ly, and of great value, to wit, — dollars, [and also then and there pulled down, prostrated and destroyed divers parts of the walls and partitions, and ceilings, and other parts of the said dwelling house, and also then and there pulled down, tore away, severed, detached and removed certain fixtures and things of the plaintiff, to wit, — , of great value, to wit, — dollars, then affixed to and parcel of the said dwelling house ;] and also, during the time aforesaid, to wit, on the said — day of — , A. D. — , at said county, with force and arms, seized and took divers goods and chattels, to wit, [describe the goods as in Trover, See Ante. 300, note,] of the plaintiff, then and there being in the said dwelling house, and being of great value, to wit, of the value of — dollars, and carried away the same, and converted And it suffices to describe correctly name or abuttals ; Cocker v. Cramp- that part of the close in which the ton, 1 B. & C, 489 ; Cooke v. Jack- trespass occurred ; Bassett v. Mitch- son, 9 D. & R., 495 ; Lempriere v. ell, 2 B. & Ad., 99 ; S. C. 22 Eng. Humphrey, ubi supra. In Walford Com. Law Rep., 34. If the plaintiff i>. Anthony, 8 Bing., 75; 1 M. & give an accurate description of his Sc, 126, the declaration stated, that close by name or abuttals, he is safe, defendants, A. and B., broke a close and need not new assign on a plea of of the plaintiff abutting on a close of liberum tenementum, although the defendants, but it abutted on a close defendant happen to have another of the defendant A. only : — Held, an close in the parish with a similar ambiguity, and not a variance. 40 314 TRESPASS. Declarations. and disposed thereof to his own use, to wit, at the county aforesaid. By means of which several premises, the plaintiff and his family were during all the time aforesaid, not only greatly disturbed and annoyed in the peaceable possession of the said dwelling house, but the plain- tiff was during all that time hindered and prevented from carrying on and transacting therein his lawful and necessary affairs and business ; and other wrongs, &c. [Conclude as in No. 1, Ante. 307.] No. 9. For Mesne Profits, after recovery in Ejectment.' [Commence as in No. 1, Ante. 307, — A. B. complains of C. D. in a plea of Trespass, for that the said C. D. on — ^ with force and arms, broke and entered — messuages, &c., [Describe the prem- ises as in the Declaration in Ejectment in which judgment was obtained] situate, &c., and ejected the said A. B. from his possession thereof, and continued so to keep him from his possession thereof, for a long space of time, to wit, from the day and year aforesaid until — [the day on which possession was obtained] and during that time received to his own use all the issues and profits of the said tenements, being of great value, to wit, of the value of — dollars : Whereby the said A. B. during all the time aforesaid, not only lost the issues and profits of the said tenements, but was deprived of the use and means of cultivating the same, and was obliged to, and did expend divers large sums of money amounting in all to a large sum of money, to wit, the sum of — dollars,'^ in and about the recovering of the possession of the said tenements, to wit, at the county afore- said ; and other wrongs, &c. [Conclude as in No. 1, Ante. 308.] (a) Thisactionmay bein the name according to the fact; 2 Chitt. PL, of the nominal plaintiff, or of the 388. lessor of the plaintiff; if there were several demises, and the party inter- (c) In this action the plaintiffmay ested had no right of possession ante- recover in damages the value of the rior to the day of the demise in the occupation of the premises, together ejectment, it is frequently most advi- with the costs of the action of eject- sable to proceed in the name of the ment, and if any particular damage, former; but otherwise in that of the waste, or injury to the premises Avere latter, in order to recover anterior committed by the defendant, it should mesne profits ; 2 Chitt. PL, 388. be stated specially; 2 Chitt. PL, 388. Where the profits claimed, (b) This is usually the day of the are for a greater length of time than ouster laid in the declaration in eject- four years, the defendant may plead ment, but when the plaintiff's right the statute of limitations. The re- of possession and the defendant's port by a jury, under the Occupying unlawful entry were anterior to that Claimant Law, of a sum in favor of time, it is advisable to state the time the plaintiff, or if no excess be re- TRESPASS. 315 Pleas in Abatement and in Bar. Pleas in Abatement and in Bar. For Pleas in Abatement and proceedings thereon, See Pleas in Abatement in Assumpsit, and in Debt, Ante. 108, 237. Pleas in Bar. No. 1. Not Guilty.^ C— D— , ^ ads. >In Trespass. A— B— , ) And the said C. D. comes and defends, &c., and says that he is not guilty in manner and form as the said A. B. hath complained against him, and of this he puts himself upon the country ; And the said A. B. doth the like. By T. his AtVy. ported in his favor, in either case, the action for mesne profits is barred ; Sivan's Stat., 008, § 7. The jury, however, in assessing damages in this action, are by no means obhged to confine themselves to the annual rents of the land, but may, in every case, assess such damages, as they think will do justice between the par- ties. In 3 Wils., 118, Mr. Justice Gould remarks, that he had known four times the value of the mesne profits given by a jury in this action. If the action be brought in the name of the nominal plaintifi", the Court, before issue joined, will stay pro- ceedings until security for costs be given; Swan's Stat., 665, § 74. (a) In trespass either to 7'eal or personal property, the general issue is, not guilty ; and if the action be concerning the fonner, it puts in is- sue not only the fact of trespass, but also the title, evidence of which, and of the right of possession, is admis- sible ; as a demise from the owner of the land ; 7 T. R., 354. Under this plea, soil and freehold may be given in evidence ; And., 108 ; 3 Kel., 154 ; 8 T. R., 403 ; Com. Dig. PL, (3 M. 11.) ; Story PL, 624. So the defendant may give in evidence, un- der this plea, that he is tenant in common with the plaintiff'; 2 Esp. N. P., 103 ; Gilb. Ev., 487. Other- wise, if the plaintiff" be tenant in com- mon with a third person ; for then it must be pleaded in abatement ; Salk. 4. A license to enter must be plead- ed specially ; 2 T. R., 166. So, a right of way; Gilb. Ev., 217. So, an incorporeal right; Com. Dig. PL, E. 15; 2 Wils., 173, and where the act, would at common law, pritna fa- cie, appear to be a trespass, any mat- ter of justification or excuse, must in general be specially pleaded ; Ibid ; 12 Mod., 120; XV. Petersd. Abg., 136. The plea of not guilty is prop- er in trespass to persons, if the de- fendant committed no assault, battery, or imprisonment, &c., but any mat- ter of justification or excuse, must in 316 TRESPASS. Pleas in Bar. No. 2. Son Assault Demesne.^ C— D— . ^ ads. > In Trespass. A— B— , 3 And the said C. D. comes and defends. 6z.c., and says, that as to the force and arms, and whatever is against the peace, he is not guilty thereof, in manner and form as the said A. B. hath above complained asainst him : and of this he puts himself upon the country, and the said A. B. doth the like, &c. And as the residue of the trespass aforesaid, above supposed to be committed, the said C. D. says, that the said A. B. his action afore- said against him the said C. D. ought not to have, because he says, that at the time and place when and where the said trespass is above supposed to have been committed, to wit, on — at — he the said A. B., with force of arms upon him the said C. D.. did make an assault, and him the said C. D. did then and there beat, bruise, and would have further beaten, bruised and wounded him ; wherefore he the said C. D. did then and there defend himself against the said A. B. which is the residue of the trespass whereof the said A. B. complains as aforesaid ; and so the said C. D. says, that the damage or injury, if any then and there happened to the said A. B. was from the as- sault of the said A. B. upon him the said C. D. and in his defence ; and this he is ready to verify ; wherefore he prays judgment if the said A. B. ought his action aforesaid to have aorainst him. &.c. generalbepleadedspecially ;2Camp. jBarncs, 251, 364. Not Guilty and 379, 379, 500 ; Co. Litt., 282, b. the Statute of Limitations ; 2 Str. 283, a. : Doug.,611; 1 Saund., 298, 889. Not Guilty and son assault n. 1 ; Com. Dig. PL, 3, 15, 16, 17 ; demesne ; Barnes. 350. Two justi- 2 Bos. and Pull., 224. But if the fications may be pleaded together ; 1 circumstances could not have been Str. 425. Not Guilty and satisfac- pleaded, in justification ; zs z. provo- tion; Barnes, '^oO. Not Guilty and cation, &c., it seems they may be libenim tenementum, if the locus in given in evidence in mitigation; 76 Iff.; quo be not ascertained in the decla- Vin. Abg. Ev., (L. b.) ; 12 Mod., ration ; Barnes, 350. It was for- 332. " raerly held, that not guilty and a justification could not be pleaded to- (a) This plea is commonly an- gether, because not gidlty denies the nexed to the General Issue, Not trespass, and a justification admits it ; Guilty. The defendant may plead 2 Str. 876. But now it is a corn- together, Not Guilty and Tender of mon practice to plead them together ; amends ; 2 Bl. 109'; 3 Barnes. 3.59, 2 Car. and P. 33 ; ^rch. PL 252; 366. Not Guilty and a License : Story PI. by 01. 598. TRESPASS. 317 Pleas in Bar. No. 3. Property in Defendants, &fc. C— D— , et. al. ^ ads. > In Trespass. A— B— , ) And the said C. D., E. F. and G. H. come and defend, &c., and as to the force and arms, and the whole trespass aforesaid, except the taking and driving away one heifer of the said cattle, say that they are in no wise guilty ; and of this they put themselves upon the country, and the said A. B. doth the like, &.c. And as to the taking and driving away the same heifer, the said C. D., E. F. and G. H. say, that the said A. B. his action aforesaid against them ought not to have, because they say, that long before the said trespass is supposed to have been done, the property of the same heifer was in the said C. D. and E. F., and they being possessed of the same heifer as of their own property, before the time when, &c., delivered the same heifer into the possession of one T. S., at — to be safely kept and pastured ; and afterwards, and before the said time when, &c., the said A. B. took and drove away the same heifer from the possession of the said T. S., and afterwards at the said time when, Slc, the said C. D. and E. F., in their own right, and the said E. F. as servant of the said C. D. and E. F., and by their order, took and drove away the said heifer, as they lawfully might do ; and this they are ready to verify ; wherefore, &c. Replication thereto. And the said A. B. says that, by reason of the matters in bar plea- ded by the said C. D., E. F. and G. H. he the said A. B. ought not to be barred from his action aforesaid, because he says, that the said C. D., E. F. and G. H. by force and arms, at &,c., aforesaid, took and drove away the said heifer, as the said A. B. in his declaration has al- leged, without this, that the property of the said heifer at the time of the said trespass, was in the said C. D. and E. F. as the said defen- dants have alleged ; and this, &c. No. 4. License. And for a further plea in this behalf the defendant says, [or if the plea be to part only of the trespasses, state " and for a further plea 318 TRESPASS. Pleas in Bar. as to the breaking," &.c. enumerating the licensed trespasses,] the defendant says that the plaintiff ought not to maintain his aforesaid action thereof against him, because he says, that he, the defendant, at the said times when, &c. by the leave and license of the plaintiff to him for that purpose first given and granted, committed the tres- passes in the said declaration mentioned [or, " the trespasses in the introductory part of this plea mentioned,"] and this the defendant is ready to verily. =" No. 5. Replication De Injuria sua pr'opria absque tali causa, in Trespass ; 2 Chitt. Prec. 728. And the plaintiff, as to the said — plea, saith, that the defendant, at the said time when, &c. [or, " times when, &c." if several days or times be laid in the declaration,] of his own wrong and and with- out the cause by him in his said — plea alleged, conmiitted the said trespasses in the said declaration mentioned ; and this the plaintiff prays may be inquired of by the country, &c. No. 6. Liberum tenementum.^ C-^ D- In Trespass. [I. Not Guilty. Ante. 315, No. 1.] — And for a further plea in this behalf the said C. D. and G. H. say that the said A. B. ought (a) When there are several tres- should be replied; See 1 Saund. passes laid in the declaration, and 300, a; 2 /(/. 5, note 3. A replica- the defendant pleads license, it seems tion to a plea of hcense, denying it, that he must prove a license com- should not, it seems, be de injuria, mensurate with and covering all the in the common form ; but " that de- trespasses proved upon the declara- fendant at the said times, when, &c. tion, and will fail as to such as are of his own wrong, and toithoiit the not shown to have been hcensed, and lease and license of the plaintiff to that in such case a new assignment him the defendant first given and is not necessary; Barnes v. Hunt, granted, committed," &c, 11 East, 451 ; Hapward v. Grant, 1 C. & P. 448. And in general a rep- (b) This plea is contrary to the Ucation or new assignment of excess general rules of pleading, as not- is not necessary; Symons v. Hear- withstanding the truth of it, the plain- son, 12 Price, 309. It seems that tiff may have a good cause of action; where there has been a revocation of and every plea in bar, admitting the the license before the trespass, it facts stated in it to be true, ought to TRESPASS. 319 Pleas in Bar. not to have his aforesaid action against them, because they say, that the said close in said declaration mentioned, now is and at the said several times when the said several trespasses are supposed to have been committed, was the close, soil and freehold of the said C. D. to wit, at the County aforesaid ; wherefore the said C. D. in his own right, and the said G. H. as his servant and by his command, commit- ted the said several supposed trespasses in the said declaration men- tioned, in the said close of the said C. D. as they lawfully might do; and this they are ready to verify ; wherefore they pray judgment if the said A. B. ought to have his aforesaid action against them, &c. be a full bar to the action. This plainly is not so ; for the plaintiff might have a lease from the defen- dant, or claim under any other per- son, who conveyed the reversion to the defendant, or even if he had no right at all, if he had been in quiet possession a length of time, as in that case the person claiming a right must bring an ejectment, and cannot enter by force ; the plaintiff' might sustain his cause. The reason why this plea was introduced, was because formerly most declarations in Tres- pass were general, only for breakmg and entering the plaintiff"'s close in such a place, without describing or giving any name to the close. It Avas thought a great hardship in such case to oblige the defendant to ans- wer such a general charge ; for if the plaintiff" had a large estate in the parish, the defendant could not tell in which of the closes he would as- sign the trespass ; and therefore the Courts gave the defendant leave to plead liberum tenementum, which obliged the plaintiff to make a new assignment, and ascertain the place in his replication. If the plaintiff" did not, the hardship would be turn- ed on himself ; for if the defendant could prove, that he had any freehold estate in any part of the township, the action was gone; 6 Mod. 117, 1 18, 1 19 ; 7 T. B. 335. This plea was sometimes called the general is- sue, sometimes, common bar, bar at large, and sometimes, bla7ik bar. Cro. Car. 384 ; Cro. Jac. 594. But this plea is confined to Trespass quQ,re clausuin (regit ; Carth. 176 ; 6 Mod. 117. The plaintiff" may reply three ways. I. If his title be inconsistent with the defendant's plea, he may traverse the plea, and as the action of Trespass is a possessory action, it is perfectly indifferent whether he sets out his own title or not ; 3 Salk. 354. II. If the plaintiff" derives title un- der the defendant, then the plaintiff must admit the defendant's title, and insist on his lease or other title, and the traverse must come on the part of the defendant. III. If the plain- tiff" has a middle case, and neither derives title from the defendant, nor one inconsistent with his, he may plead as in Cro. Car. 384 ; Avhere the defendant pleaded soil and free- hold, and the plaintiff rephed, that before the defendant had title in the premises, A. A. was seized of them as his freehold, and leased them to B. B. for a term of years now sub- sisting, under whom the plaintiff' now claimed, without either confess- ing or denying the defendant's plea ; and it was holden on demurrer to be a good replication ; See Willes, 218, 225. In this case Willes, C. J. in- chned to think, that if the plaintiff mentioned the place, by name, in his declaration, the defendant could not plead the common bar ; Contra. 2 Bl. Rep. 1089. See Saimd. 299, n. ; Story PI. 625. 320 TRESPASS. Pleas in Bar. New assignment to plea of liberum tenementum. [Precludi non, &c. — because he says that the said piece or par- cel of land, in which, &c. in the said declaration mentioned, at the said several times when, &c. was and is a certain close, situate, &.c. [state the boundaries] which said close now is and at the said several times when, &c. was another and different close from the said close in the said last plea of the said C. D. mentioned, and therein alleged to be the close, soil and freehold of the said C. D., and this he is rea- dy to verify ; wherefore he prays judgment and his damages on occa- sion of the committing of the said trespass newly assigned, &c. Plea to New Assignment. And the defendant, as to the said supposed trespasses above newly assigned, says that he is not guilty of the same or any part thereof; and of this the defendant puts himself upon the country, &c., [or if the plea be not in denial only, but in confession and avoidance, af- ter stating the defence, conclude, " and this the defendant is ready to verify ; wherefore he prays judgment if the plaintiff' ought to main- tain his action thereof against him in respect of the said supposed trespasses above newly assigned." Replication to a Plea to a New Assignment. The plaintiff" as to the said plea to the said trespasses above newly assigned, says that, &c. [either conclude to the country or with a verification, according to the subject-matter of the reply ; the verifi- cation is thus :] And this the plaintiff" is ready to verify; where- fore he prays judgment and his damages by him sustained, on occa- sion of the committing the said trespasses above newly assigned, to be adjudged to him, &c. No. 7. Justification by Schoolmaster ; 12 Ohio Rep. 191. And for a further plea, &c. — actio non — because he says, that the said defendant, at the time when, &-c. was a schoolmaster, teach- ing a school at the County of G. and the said plaintiff" was then and there a scholar in, and attending said school, and then and there be- haved and conducted in an improper and disorderly manner, and re- fused to obey the rules prescribed for the government of the school ; whereupon he, the said defendant, then and there moderately correc- ted him the said plaintiff", for his said misbehavior, which, &c. TRESPASS. 321 Trial by Jury — Verdicts — Judgments. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in As- sumpsit, Ante. 150. Verdicts and Judgments. For general Rules regulating Verdicts and Judgments, See Ver- dicts and Judgments in Assumpsit, Ante. 151. No.l. Verdict and Judgment for Plaintiff on Issue of Not Guilty. In Trespass. This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn, the truth to speak upon the issue joined between the parties, upon their oaths do say* that the said C. D. is guilty in manner and form as the said A. B. hath complained against him, and they assess the damages of the said A. B. by reason of the premises to — dollars : Therefore It IS considered that the plaintitT recover of the defendant the said sum of — dollars, his damages aforesaid in form aforesaid assessed, and also his costs in this behalf expended, taxed to — dollars. No, 2. The like, for Defendant. [Proceed as in the last Precedent to the (*) — That the said C. D. is not guilty in manner and form as the said A. B. hath complain- ed against him : Therefore It is considered, that the defendant go hence without day, and recover of the said plaintiff his costs herein expended, taxed to — dollars. For Forms of Verdicts on Special issues, See Verdicts in Assump- sit and Debt, which, with slight variations, are applicable to Tres- pass. For Forms of other Verdicts and Judgments, See same Titles in Assumpsit and Debt. 41 322 EJECTMENT. Ejectment. EJECTMENT. = The action of Ejectment is commenced by serving the copy of a Declaration and Notice upon the Tenant in possession. (a) Some general Rules regulating the action of Ejectment may be found below, under the following heads : I. Nature of Remedy and When it lies. II. Declaration. 1. Title of Term. 2. Venue. 3. Demise, By Whom. 4. Time of Demise. 5. Description of the Premises, 6. Entry and Ouster. 7. Notice to Tenant. III. Service of Declaration. 1. How, and upon Whom. 2. By Whom. 3. Time when. 4. Affidavit of Service. IV. Defence. 1. Who "may defend. 2. Consent Ride, 3. Pleas in Abatement and Bar. 4. Consolidation. 5. Order of Survey. V. What Title will support an Ejectment. VI. What can, and What cannot, be set up to defeat an Eject- ment. VII. Verdicts and Judgments. VIII. Habere Facias and other Proceedings after Judgment. IX. Amendments. X. Occupying Claimants. EJECTMENT. 323 Declarations. — County, ss. On a single demise. Declarations. Court of Common Pleas : — Term, A. D. — . John Doe complains of Richard Roe, for that A. B. on — at — had demised to the said John Doe the following lands and tenements, to wit, [Here set out the metes and bounds] ; and also — messuages, — cabins, — barns, — stables, — orchards, — out-houses, — yards, — gardens, — acres of arable land, — acres of meadow land, — acres of pasture land, — acres of wood land, — acres of land cov- ered with water, and — acres of other land, with the appurtenances, situate in said County of — To have and to hold the same to the said John Doe from the — day of — in the year aforesaid, for and during the term of — years thence next ensuing :* By virtue of which demise the said John Doe entered into the said tenements with the appurtenances, and was possessed thereof, for the term aforesaid : And the said John Doe being so thereof possessed, the said Richard, afterwards, to wit, on — with force and arms, entered into the said tenements with the appurtenances, and ejected the said John Doe therefrom, and other wrongs to the said John Doe then and there did : To his damage — dollars ; [merely nominal,] And therefore he sues, &c. By S., his AtVy. * 1. Nature of Remedy and when IT LIES. Ejectment is the common reme- dy resorted to in the State of Ohio, to recover the possession of real prop- lerty, either in fee, for life or for years. This action has been modified by Statutory regulations and Rules of Court, but the same general princi- ples prevail here as in England, and in some other States of the Union ; 3 Ohio Rep. 232. It seems, however, that Real Actions may be prosecuted; lb. And in some cases a Writ of Right may be the better remedy, because a judgment therein is a final bar. The general rule is, that Ejectment will he for any thing attached to the soil, of which the Sheriff can deliver possession ; Mams Eject., 16 ; 16 Johns. Hep., 184. It cannot be maintained where the thing to be recovered cannot be delivered in ex- ecution, and Avhereon an entry can- not be made ; B. N. P., 99. So it will not lie for a water course, but it will for the ground over which the water passes ; Felv., 143. The owner of the soil may maintain this action for land which is part of the King's highway ; Burr, 1,33, 145. Wherever a right of entry exists, and the interest is tangible, so that pos- session of it can be delivered, eject- ment will lie ; 9 Johns. Rep., 298 ; S. 324 EJECTxMENT. Declarations. On A DOUBLE DEMISE. At the * in the above Precedent say, " And also for that C. D. on — at — had demised to the said John Doe — other messua- ges, &c., [describing as before] ; To have and to hold the same to the said John Doe from the — day of — in the year aforesaid, for and during the term of — years thence next ensuing. By virtue of which said several demises the said John Doe entered into the said several tenements, first and secondly above mentioned, with the appurtenances, and was thereof possessed for the several terms afore- said, &c. [Conclude as in the last Precedent, using the plural number.] Notice to tenant.* Mr. — Sir : — I am informed that you are in possession of, or claim title to, the premises in this declaration mentioned, or to some part thereof, and I being sued in this action as a casual ejector, and having no title to the said premises, do advise you to appear at the next term of the Court of Common Pleas within and for the County of — , and State P., 1 Tyler, 355; 2 Feates, 331. When a highway is laid out over the land of a private person, the public acquire no more than a right of way, or easement, and the title of the ori- ginal proprietor continues : He may use the land in any manner not in- consistent with the public right, and may maintain trespass or ejectment in relation to it ; 1 Burr, 143; 1.5 Johns. Rep., 447 ; S. P. 2 Johns. Pep., 357 ; 15 Johns. Pep., 491 ; 1 Cowen, 238 ; 1 Conn. Rep., 103 ; G Pick., 59; 16 Mass., 35; 14 Jb., 256; 6 Jb., 456; 2 Jb., 127; 1 Veafes, 167; 3 Rand. Rep., .563. Ejectment will not lie against a per- son for setting up a stall in a street. The remedy is trespass by the owner of the soil ; 1 Carr. and P., 123. Ejectment will not lie by the owner of the soil, for land, which is subject to a passage over it, as a pubhc high- way, or common; 6 Peters., 431: See 11 Png. Com. Latv Rep., 339. For the Nature and History of this Action, See Ld. Mansfield's Opin- ion, 3 Burr. 1290; 9 Vin. Abg., 325; 5 Monroe, 538; 28 Eng. Com. Law Rep., 200. Motion to stay Proceedings upon a second eject- ment'— Vex. Cur,, We never grant this without an affidavit, that it is the same land, the same lessor, and the same title ; 9 Vin. Mg., 328. Where one co-tenant evicts another. Ejectment lies ; White's Lessee v. Sayre, 2 Ohio Rep., 110. After for- feiture, the mortgagee may maintain Ejectment ; Ely's Lessee v. Mc- Giiyre, 2 Ohio Rep., 223. Execu- tor or administrator of mortgagee may maintain Ejectment ; Swan's Stat., 350, 362. (a) See note (a) Ante. 322. EJECTMENT. 325 Affidavit of Service. of Ohio, and make yourself defendant in my stead, otherwise judg- ment will then be entered against me by default, and you will be turned out of possession. Richard Roe. Dated, &.c. Affidavit of Service. John Doe ex dem. A. B. ^ Richard Roe. ) C. D. of — makes oatii, and says that he, on — did personally serve E. F, tenant in possession of the premises in the within decla- ration mentioned, or of part thereof, with a true copy of the within declaration and notice, and at the same time acquainted the said E. F. with the intent and meaning of the said declaration and notice, and of the service thereof. C. D. Sworn to, &c. The like — Service on the Wife. — on — did serve E. F. tenant in possession of the premises in the ivithin declaration mentioned, or of part thereof with a true copy of the within declaration and notice by delivering the same to the wife of the said E. F. upon the premises aforesaid, \or, at the dwell- ing house and place of residence of the said E. F. situate in — ] ; and this deponent at the same time read over to the said wife of the said E. F. the said notice, and explained to her the intent and mean- ing of the said declaration and notice, and of the service thereof. The like — Service on any other of the Family. [ Commence as in the last Form — by delivering the same to the son of the said E. F. upon the premises aforesaid, and this deponent at the same time read over to the said son of the said E. F. the said notice, and explained to him the intent and meaning of the said dec- laration and notice, and of the service thereof: And this deponent further saith that afterwards, on — this deponent saw the said E. F. and conversed with him upon the subject of this action, when the said E. F, told this deponent that he had received the copy of the declaration and notice last aforesaid on — . (a) See note (a) Ante. 322. 326 EJECTMENT. Affidavit of Service. The like — Service in another way. Commence as before — by delivering the same to a woman ser- vant of the said E. F. upon the premises aforesaid, and this deponent at the same time read over to the said woman servant the said notice, and explained to her the intent and meaning of the said declaration and notice, and of the service thereof: And this deponent further saith that previously to such service of the said copy of the declara- tion and notice aforesaid, he this deponent called several times at the dwelling house of the said E. F. upon the premises aforesaid, for the purpose of serving him personally with a copy of the declaration and notice aforesaid, but the said E. F. was always at such times denied to this deponent ; and this deponent hath made diligent search and inquiries for the said E. F. for the purpose aforesaid, but hath not been able to find him ; And this deponent saith that he hath since heard, and verily believes, that the said E. F. [keeps out of the way to avoid being personally served with a copy of the said declaration and notice, or, has absconded, and gone to , or, has gone to reside in — or, as the case may be.] Upon this affidavit the plaintiff is entitled to judgment by default within the term to which the tenant had notice to appear, unless the tenant, or landlord, or other proper person, apply to be made defend- ant and enter into the Consent Rule; Swan's Stat., 664, ^ 71. And such judgment is a matter of course ; 4 Ohio Rep., 442 : See Post, Verdicts and Judgments in Ejectment. II. Declaration. vice ; 6 Cowen, 597. So, though it be without any title at all ; Ibid. 1. Title of Term. There is no lis peyidcns till the Dec- laration is filed, and proof of notice ; The Declaration is commonly but when filed is good by relation to entitled of the Term next prece- the day of service ; 8 Dana, 178. ding the vacation in which it is served : but any omission or mis- 3, Venue. take in this respect is immaterial, as the consent rule precludes the de- The Venue is local and confined fendant from raising any objection to the County in which the lands are on that account ; Saund. PL and situated ; Jidams Eject., 186 ; 6 j&u., 540. The title to the Declara- Mod., 222; Coivp. 161, 176; 10 lion in ejectment is mere form, and Ohio Rep., 209. good, though of a Term after its ser- EJECTMENT. 327 Order for leave to Defend. Order for leave to Defend.^ John Doe on the Demise of A. B. ') V. Richard Roe. In Ejectment. On application to the Court, 07% by consent of parties, It is ordered that John Smith be made defendant herein in the place of the now defendant Richard Roe. 3. Demise, By Whom. The nominal plaintiff, in the Courts of the U. States, must have the same character as the lessee, in reference to citizenship ; 5 Crunch, 75 ; See 8 Pet. 218. A Demise by " John Gilkerson, att'y in fact for the heirs of James Gilkerson," is bad ; 4 Bibb, 410. Motion to enlarge a Demise is discretionary, and cannot be taken to the Supreme Court; 10 Fet. 366; See 14 Pet. 147. After issue, no exception can be taken to the Dec- laration; 1 Marsh. 6. After issue joined, a new claim may be put into the Declaration, by amendment; but it will relate only to the time of a- mendment ; 3 Marsh. 19 ; See 5 Monroe 123, 442; 6 do. 260 : 3 Litt. 287, 334. A new Demise from oth- er lessees cannot be put in by amend- ment; 5 Litt. 307. The defendant may have a Rule to be informed of the residence of the lessor of the plaintiff; 3 Dana, 230. Solicitors and agents in Ejectment committed till they find a plaintiff able to pay the costs, or pay the costs themselves ; 9 Vin. Abg. 323; See Swan's St. 664, § 72, 73. Tenants in Com- mon may count on a joint Demise ; Lessee of Massie's heirs v. Long, 2 Ohio Rep. 287 ; Wilkinson's Les- ses V. Fleming, 2 Ohio Rep. 301. A Prochein amie cannot make a De- mise ; 76. Under the 70th Section of the Judiciary Act (Swan's St. 662,) which provides, "that in all actions of Ejectment, the plaintiff shall have the same benefit from a joint demise that he could from sev- eral demises, and separate demises shall only be laid in the names of tenants in common," — one who is sole owner of lands, cannot unite with himself in a joint Demise, oth- er persons having no title ; Adam's Lessee v. Turner, 7 Ohio Rep. 136, Part 2d. On a joint Demise in the names of three, proof of title in one of them alone will not enable the plaintiff to recover ; but he may a- mend on payment of costs ; Buck- ley's Lessee v. Osbiirn, 8 Ohio Rep. 180; See 1 Marsh. 41. Under a Demise in the name of Futhuff^, it seems, a deed to the ancestor of the Plaintiff's lessor, in the name of Biddulph, is admissible by showing that Biddulph, Bottolph, Potherf and Puthuff were different modes of speUing the name of the some per- son ; Pillsbury's I^essee v. Dugan, 9 Ohio Rep. 117. But a misnomer is fatal ; as Elisha for Elijah; 5 Monroe, 215; See 3 Wend. 149; Cro. Eliz. 776. One whose estate is saved by the Act of Limitation, cannot recover it in a joint 'Demise with others whose rights are barred ; Moore's Lessee v. Armstrong, 10 (a) See note (a) Ante. 322. 328 EJECTMENT. Consent Rule and Plea. Consent Rule and Plea.* John Doe ex. dem. A. D. V. John Smith. In Ejectment. And the said John Smith comes and confesses the lease, entry and ouster in the said declaration mentioned, and admits himself to be in possession of, &c. [defining the extent and boundaries of so much Ohio Rep. 11. A Demise, except by one holding a present interest, will be struck out on motion ; saving only the case of a cestui que trust, who may use for this purpose the name of his trustee ; Egs;leston v. ^rof^on/, lOOhioRep. 312. The Demise is merely fictitious, but still it must be consistent with the title of the lessor ; such a Demise must be supposed to be made, as would if ac- tually made, have transferred the right ot possession to the lessee ; Adams Eject. 186; 6 Co. 15, b. So, when the Demise was laid as joint, when it was made by tenants in common, it was held bad ; because tenants in common cannot make a joint Demise ; 2 Wils. 232. Joint tenants or parceners, may declare upon a joint Demise, or several De- mises may be laid from each ; 1 Ld. Raym. 126; 1 Jnis. 1; 12 East. 01,39; 6 76.182; 3 Camp. 190. If the rightof entry bein husband and wife, in right of the wife, the De- mise may be laid, either by husband and wife, or by the husband alone ; Saund. Pleadings and Ev. 546 : Cro. Jac. 332; 76. 617. But a De- mise by husband and wife, when the title is in the husband alone, is bad ; 2 Marsh. 459. When Demise is from a corporation, it is unnecessary to allege, as formerly, that it was un- der a power of attorney, and by deed; Adams Eject. 190; 1 Esp. Rep. 198; 1 Ld. Raym. 136. Where any doubts exist as to the person in whom the legal interest is vested, it is advisable to allege several distinct Demises by persons severally inter- ested ; Chitt. PL 879 ; Adams Eject. 184. It is necessary to obtain the consent of the person under whom a Demise is claimed, to be permitted to make use of his name, and if no such consent be procured, the Court on affidavit, will set aside the ver- dict ; 2 Chitt. Rep. 170; S. C. 18 Eng. Com. Law Rep. 288 ; Saund. PI. and Ev. 547. A variance in the name of the lessor will be fatal ; Cro. Eliz. 776. Where the demise is by an infant, it is usual, with re- gard to the costs, to make his father or guardian, the plaintiff", instead of a fictitious person ; Str. 694 ; Cowp. 182. Although the Demise is a fic- tion, still the fiction must be such as might by possibility have been true : The lessor is supposed to have been capable of making a Demise not on- ly at the time when the Demise is alleged to have been made, but when the suit was brought ; 3 Wend. Rep. 154; S. P. Chipman, 69, 74. The plaintiff' cannot recover under a De- mise from a lessor who has released his interest ; 15 Johns. Rep. 488. A Demise from a man who was dead at the commencement of the suit. (a) See note (a) Ante. 322. EJECTMENT. 329 Consent Rule and Plea. of the premises as he defends for] parcel of the premises in the said declaration mentioned ; and for plea says, that he is not guilty of the trespass and ejectment in the said declaration alleged against him, and of this he puts himself upon the country ; And the said John Doe doth the like. By T. his AWy. may be objected to at the trial, and is cause of non-suit ; 5 Monroe, 123. A lessor must be capable of making a Demise, not only at the time alleged in the declaration, but also when the suit is commenced ; 3 Tfiend. Rep. 149. Where the plaintiff" declares on separate Demises by two, each for a moiety, and fails to prove title in one of the moieties, he may nevertheless recover, according to the title proved in the other lessor ; 2 Bibb, 21. If the Declaration calls the lessors of the plaintiff'" heirs," they may show themselves " devisees ;" 2 Litt. 269. The Court are bound to lake notice of the real parties litigating ; 1 Feates, 20. Tenants in common may recover on a joint Demise ; 1 Hawk. Rep. 469. Or. on separate Demise ; 2 Caines, Rep. 169. Ten- ants in common cannot make a joint Demise ; 4 Bibb, 241. One of sev- eral coparceners may make a sep- arate Demise; 1 Johns. Ca. 331. Separate Demises from several les- sors, may be laid in the declaration, and the plaintiff' may give in evi- dence the separate titles of the sev- eral lessors to separate parts of the premises, and recover accordingly ; 12 Johns. Rep. 185 ; S. P. 7 Ha'rr. and Johns. 1. Joint tenants must join in ejectment, and one of three joint tenants cannot recover a third part of the premises of a stranger ; 4 Feates, 577. The plaintiff" shall re- cover according to his right ; if the whcle be demanded, the jury may find for a moiety ; Chipman, 74. Under a declaration for a moiety, a third may be recovered ; 2 Hayw. 150. So, if the plaintiff" sue for a 42 ninth, he may recover an eighteenth; 2 Hayw. 222 ; S. P. 1 Cooke, 333 ; 9 Cranch, 151 ; 3 Bibb, 2. The plaintiff" cannot recover a greater quantity or interest than he declares for, but he may recover less ; 1 Bibb, 110. If the demise be laid from two heirs, and it appear that there were three, yet the plaintiff" shall recover an undivided interest of two-thirds ; 3 Bibb, 304 ; 4 Id. 358. 4. Time of Demise. The Demise must be laid as of a day subsequent to that when the les- sor's right accrued ; T. R. 680 ; B. N. P. 105 ; ^ B. and C. 754 ; 5 D. and R.711; 15 East. 286; 1 Johns. Ca. 283. The day of the Demise need not be stated; 13 Pet. 1. In ejectment by mortgagee against mort- gagor or those claiming under him, the demise must be laid as of a day subsequent to a default in payment ; 6 Cowen. 147. A Demise laid be- fore the title of the lessor of the plaintiff accrued, cannot be taken advantage of after issue joined ; 2 Rand. 353 ; 3 Call, 362. Contra ; 3 Bibb. 297. The plaintiff must show title at the date of his Demise; 3 Marsh. 134 : 2 Dana, 68. The Demise should be laid as far back as the title of the lessor will admit, with a view to the mesne profits, as the plaintiff' is entitled to all such as may accrue subsequently to the day of the demise ; Burr. 665. Whenever doubts exist as to the exact period, it is usual to insert different demises and diff'erent days ; Mams Eject. 185 ; 2 Chitt. PI. 880. The dura- 330 EJECTMENT. Consent Rule and Plea. The Consent Rule is filed with the other papers, and the case, without any change in the declaration, is considered at issue, and is thenceforward entitled, John Doe ex. dem. A. B., or, The Lessee of A. B. V. John Smith, and under this title is carried on to final judg- ment and execution. tion of the term as alleged to have been demised is not material ; so, the plaintiff may declare on a demise for five years though the lease be only for three years ; S T. B.IS; B. N. P. 106; 1 Mod. 10; overruling; 2 Lev. 140. 5. Description of the Premises. No determinate rule exists as to the description of the premises ; Adams Eject. 20. It was consider- ed an estabhshed principle until with- in the last fifty years, that the des- cription must be so certain, that the Sheriff could deliver possession Avith- out any information from the lessor ; this maxim has however been abol- ished, and it is now the practice for the Sheriff" to deliver possession ac- cording to the direction of the claim- ant, who therein acts at his peril ; 5 Litt. 323 ; Adams Eject. 21 ; Burr. 62:3, 630, 2672. An issue may be directed to try whether the Sheriff has delivered possession properly : 5 Burr. ^.tilf^. An ejectment for " four corn mills" is good; 1 Mod. 90. So, for " a stable and cottage ;" Cro. Eliz. 848; " for a house " -'a pas- sage room " "a room and chamber in the second story ;" Ld. Raym. 1470; 3 Leon. 110. In ejectment for land the particular species should be mentioned, whether ^jos/wrc, mea- dow, ^•c, because land means only arable land; Coivp. 346, 349; 11 Co. 55. " Ten acres of underwood" "Fifty acres of furze," "Ten acres of peaze," have been sufficiently certain ; 2 Poll. Pep. 482 ; 1 Mod. 90 ; 1 Broivn, 149. " The ancient rule required the description to be so certain, that the Sheriff might know from his execution, exactly of what to deliver possession. The relaxation of that rule has opened the Avay for numerous and vexatious applications to correct the errors of the Sheriff in delivering possession ; and the set- tled rule of the Supreme Court, where a general verdict is given for the plaintiff, is, to restrict him to the taking possession of so much only as he gave evidence of his title to on the trial ;" Spencer, Senator, 8 Coicen, 427. The word tenement in a declaration is sufficiently certain; 1 Hay IV. 24. A plaintiff claiming under a deed conveying " the bal- ance of a tract of land " must show what the balance is and where situ- ate or he cannot recover ; 3 Marsh. 19. It is not necessary to name the Parish or Hamlet; 4 Taunt. 671. The number of messuages, acres, &c., mentioned in the demise, need not correspond with the number to which the lessor claims title. He may declare for an indefinite num- ber, as ten messuages, ten acres of meadow land, &c., and care should be taken that the number specified in the demise be larger than the num- ber claimed; Adams Eject. 198; Burr. 326, In Ohio there is no re- ported decision upon this subject. In practice, the premises are sometimes described specifically, by 7netes and bounds, and sometimes a general description only is given, as ten mes- suages, five hundred acres of arable land, &c. Nor is it necessary to name the toivnship or any other civil division, except the county within which the lands are situated. It is however said to be the better prac- EJECTMENT. 331 Order of Survey Order of Survey.'' The Lessee of A. B. ^ V. >In Ejectment. John Smith. j By consent of parties, or, on motion of the plaintiff, or, defendant, it is ordered that the Surveyor of tliis County do go upon the lands in controversy on the — day of — if fair, if not, the next fair day, and survey and lay off the same, as either party shall require, and return four fair plats and reports thereof, to the next term of this Court together with the testimony of such witnesses as may be brought before him by either of the parties, touching the lines and corners of the lands in controversy. tice, to specify the metes andboiinds in the first instance, and then add a general description. See, Prece- dents. 6. Entry and Ouster. The Entry of the plaintiff need not be alleged to have been made on any particular day, though in the Precedents it is usually so done. It is sufficient if it be declared gener- ally that the plaintiff entered by vir- tue of the demise ; Adams Eject., 198. The statement of Ouster is necessary, and the day on which it is stated to have taken place should be after the commencement of the supposed demise. It is usual, though not necessary to mention a particular day; Cro. Jac, 311; Saund. PI. and Ev., 455. A mistake in the statement of the day, especially if the words, "afterwards, to wit," are introduced before it, would not, it seems, be material ; Cro. Jac, 96 ; B. N. P., 106. 7. Notice to Tenant. The Notice should be directed to the tenant in possession, by his name ; 7 T. P., 477; 1 Chitt. Pep., 215; I Moore, 113; 2 Chitt. Pep., 179. It is best to insert both Christian and Surname ; 1 Chitt. Pep., 573 ; S. C. 18 Eng. Com. Law Pep., 166. When there are several tenants in possession, it is usual to prefix the names of all the tenants to each dec- laration, though this is not absolutely necessary ; 7 T. P., 477 ; 5 Moore, 72. The Term should regularly be mentioned by name, but if the No- tice and declaration otherwise show what Term is meant, it will be im- material ; Adams Eject., lOS.fa.) The Notice should be regularly sub- scribed with the name of the casual ejector, but it will suffice if it be sub- scribed with the plaintiff's name ; Barn., 173, 3 T. P., 351 ; Saund. PL and Ev., 551. The Notice is in the nature of Process, and cannot be aided by any statement of the per- son serving the declaration, or by the defendant's appearing and excepting, unless he enter into the common rule; 3 Marsh., 252. Notice to appear " on the first day of the next Term of the — Circuit Court" with- out naming the Court, is bad ; 1 Marsh., 154. The Notice may be amended after service, by striking (a) See note (a) Ante. 322. 332 EJECTMENT Judgment by Default. Form of Judgment by Default.* John Doe ex dem. A. B. Richard Roe. This day came the said John Doe by Mr. S. his attorney ; and the said Richard Roe though solemnly called came not but made default ; Therefore, It is considered that the said John Doe recover against the said Richard Roe his said term yet to come in the tenements aforesaid with the appurtenances. out one day and inserting another ; 4 Halsted, 254. The Notice need not be in the name of the Plaintiff, but, if in the name of the lessor of the plaintiff, or even any other person, the court will pei-mit the rule for judgment to be drawn up ; 5 Barnw. and Md., 849 ; S. C. 7 Eng. Com. Law Rep., 279. Service of Notice upon an infant is a nullity ; 4 /. /. Marsh., 568. III. Service of Declaration. 1. How, and upon Whom. The Declaration being a kind of Process to bring the party interested into Court, its delivery to the tenant resembles the service of a Writ ; and as it is the only warning which the tenant receives of the proceed- ing against him, the Courts are care- ful that a proper dehvery be made, and that the nature and contents of the declaration be explained at the time, to the party to whom it is de- hvered; Mams Eject., 209. The service, in general, should be made personally upon the party in posses- sion of the premises, at the time of the service ; or, when the possession is divided among several, upon each party separately ; B. N. P., 98. When personal service can be made. it is immaterial whether it be upon the premises demised, or elsewhere ; Strang. ,\QQ<\. When from the wil- ful or accidental absence of the tenant, personal service cannot be made, the declaration may be delivered to one of the family, nailed to the door of the house, or in some other manner left upon the demised premises ; and such service will be deemed good or otherwise, according to the circum- stances of the case. The power ex- ercised by the Courts in this respect is altogether discretionary ; Jidams Eject., 211. When a printed dec- laration and notice were served upon an illiterate tenant, who was told merely that they were a declaration in ejectment, without any further ex- planation, but it appeared from cir- cumstances that he must have known the nature of the papers, the Court considered this a good service ; 1 Cowen, 222. When a defendant, on being served with a declaration in ejectment, assented to the character of tenant in possession, and after- wards appeared and pleaded — Held, that it was sufficient evidence for a jury to find that he was tenant in possession, although it also appeared that he was in the situation only of servant, and managed the business for the real owner on the premises ; (a) See Verdicts and Judgments, note (a) Ante. 322. EJECTMENT. 333 Verdict and Judgment for Plaintiff Verdict and Judgment — for Plaintiff.* The Lessee of A. B. ^ V. > John Smith. } This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F., &c., who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say, that the said John Smith is guilty of the trespass and ejectment, or, the several trespasses and ejectments, laid to his charge, 2 Bary^. ^- ML, 371. Where two tenants are in possession of the same premises, service upon one of them will be good service upon both ; but service upon the wife of one of two tenants will not bind the co-tenant ; 1 £. S,- P., 369. In ejectment for premises which had been demised on lease to one person, who had un- derlet to others, it was held to be ne- cessary to serve all the under-tenants with a copy of the declaration ; 4 Barn. ^' Cress., 259. The return of the Marshal that he had served the declaration on A. and B. on the premises, by showing it to A. and delivering a copy at the dwelling house of A. and B. on the premises, said B. being absent, and the copy left in the presence of his wife, is defective, in not stating that a copy of the declaration was delivered to A. and another to the wife of B., and that the notice was read and explain- ed to them. It should also have been stated that A. and B. were tenants in common ; 3 Wash. Cir. Ct. Rep., 356. If both tenants inhabit one house, and this appears by the return, it is sufficient to deliver one copy ; Ibid. A tender of the declaration, and reading the notice aloud, though the tenant refuse to receive it, or run away and shut the doors, or threaten with a gun to shoot the person serv- ing it, if he should come near; throwing the declaration in at a win- dow, sticking it against the door, or leaving it at the house, upon the ser- vants' refusing to call their master, and the hke, have been held good service; Mams Eject. ,2X4^. When there are several tenants on the same land ; 9 Dana, 454. 2. By Whom. Any competent person, whether an Officer of the law or not, may serve the declaration ; 2 ^. ^' P., 120 ; 3 Wash. Cir. Ct. Rep., 356. The practice in Ohio varies in differ- ent Circuits ; in some, a declaration is filed with the Clerk, who makes out a certified copy under the seal of the Court, and this copy is delivered to the Sheriff, and by him served upon the tenant ; in others, the dec- laration is first given to the Sheriff, and he makes out the copy and serves it vipon the tenant, retaining the original, upon which he makes his return at the next term of the Court ; and in other Circuits, a copy is served by an agent or friend of the plaintiff, and the original is either filed with the Clerk, in vacation, or retained in the hands of the Attorney (a) See note (a) Ante. 322. 334 EJECTMENT. Verdict amd Judgment for Defendant. in manner and form as the said John Doe hath complained against him, and they assess the damages of the said John Doe, by reason thereof, to one cent : Therefore, It is considered that the said John Doe recover against the said John Smith his said term, or, terms, yet to come of and in the tenements aforesaid with tlie appurtenances, and also his said damages by the jurors aforesaid assessed, together with his costs herein expended, taxed to — dollars. Verdict and Judgment — for Defendant. The Lessee of A. B. ^ V. > John Smith. } This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F., &c., wlio, being empannelled, and sworn the until Term. But the Declaration must be filed and proper entries made at the Term to which the ten- ant is Avarned to appear, or the case is not in Court; 7 Monroe, 406. An affidavit of Service is necessary only where it is not done by an offi- cer of the Court ; 3 JFash. Cir. Ct. Rep., 356. 3. Time When. It is provided by Statute, (Swan's Stat., 662, § 7,) " that no plaintiff' shall proceed, in Ejectment, to recov- er any lands or tenements against a casual ejector, without ten day's pre- vious Notice being given to the ten- ant in possession, if any there be." This Notice has been considered as legally given by the service of the Declaration with the common Notice attached, ten days before the first day of the term to which it is return- ed ; 2 Ohio Rep., 263. The doc- trine of Notice to quit, as it is appli- ed in actions of ejectment, depends on statutory provisions, and on rules of Court, which have often been changed, and differ materially in dif- ferent tribunals. The only Notice required by the laws of this State, is a Notice of ten days to the tenant in possession, before a plaintiff' in eject- ment can proceed against the casual ejector ; lb. There is no lis pendens until the declaration is filed and proof of Notice ; but when filed it is good by relation to the day of service; 8 Dana, 74. 4. Affidavit of Service. The Affidavit, in general, must state that the Declaration was deliv- ered to the tenant in possession, or his wife, &c., and that the Notice, thereto annexed, was read and ex- plained at the time of the delivery ; or generally, that the tenant was in- formed of the intent and meaning of the service; Mams Eject., 217. Affidavit of service is necessary only where it is not done by an officer of the Court ; 3 Wash. Cir. Ct. Rep., 356. The Affidavit should regu- larly be made by the person who served the Declaration, though the Court have been satisfied with the Affidavit of a person, who saw the EJECTMENT. 335 Verdict and Judgment for part. truth to speak upon the issue joined between the parties, upon their oaths do say, that the said John Smith is not guilty of the trespass or ejectment laid to his charge in manner and form as the said John Doe hath complained against him: Therefore, It is considered, that the said John Smith go hence without day, and recover of the said A. B. [the lessor of the plaintiff] his costs herein expended, taxed to — dollars. Verdict and Judgment — Where Part only is recovered. Commence as before — who being empanneled, &c. As to all that part of the tenements, with the appurtenances, in the said dec- declaration served upon, and heard it explained to, the tenant in posses- sion ; 2 B. ^'P., 120. The Affida- vit must allege that the persons were served with copies of the Declaration and Notice ; 4 Bibb, 167. Wheth- er the tenant is in possession, is not a question upon the merits, but merely of irregularity, and affidavits may be heard upon it on both sides ; 1 Coiven, 222. It must appear by Af- fidavit that the Declaration and No- lice were served upon the tenant in possession, before a default can be tp.ken against the casual ejector ; Jbid. IV. Defence. 1. Who may defend. The Court, on application for that purpose, may make the tenant or landlord, or both, or any other per- soa claiming title to the premises, defendant, in the place of the casual ejector ; Swmi's St. 662, § 70. But the Court has no power to compel the tenant, or any one else to make defence ; a discretionary power only is vested in the Court, to admit the tenant, landlord, or other proper per- son, upon application for that purpose; 4 Ohio Rep. 442 ; The defendant's name will not be struck out, in order to substitute the landlord, without the consent of the plaintiffj but the land- lord may be made a co-defendant ; 3 Sergt. and Bawle, 130. A motion to admit a landlord to defend, may be grounded on the affidavit of his agent shewing the relation of landlord and tenant between him and the tenant in possession ; 1 Cowen, 134. A party will not be admitted to defend on an affidavit that he claims title to the premises, and has a real and substan- tial defence to make ; 4 Caines Rep. 151. If a person be admitted to de- fend, on payment of costs, and after entering into the consent rule, keep out of the way, to avoid being served with a copy of the ca. sa. against the casual ejector, a rule will be granted to show cause, why an attachment should not issue against him ; and that service of the rule at the de- fendant's house shall be sufficient ; 2 Caines Rep. 368. A mortgagee in possession may be let in to defend ; 11 Johns. Rep. 407. The landlord will not be permitted to defend alone, until the tenant first neglect or refuse to appear, which should be stated in the affidavit for the motion ; 1 Coiven, 134. Where a widow is in posses- sion before dower assigned, the heir may be admitted to defend ; 3 Marsh. 258. A person claiming to be let in to defend must show that his tule is con- 336 EJECTMENT. Verdict and Judgment for part. laration mentioned within the metes and bounds following, that is to say, Beginning, etc. \ description,] say upon their oaths that the said John Smith is guilty of the trespass and ejectment, [or, trespasses and ejectments,] above laid to his charge, in manner and form as the said John Doe hath above complained against him ; and they assess the damages of the said John Doe, by reason thereof, to one cent : And as to the residue of the tenements, with the appurtenances, in the said declaration mentioned, the jurors aforesaid, upon their oath nected to and consistent with the pos- session of the occupant ; 1 Bibb. 128 ; 3 do. 266 ; 4 do. 88 ; 6 /. ./. Marsh. 40. A landlord proving that the tenant entered on the land under him, will be permitted to defend the action, though it appears that the tenant has been found guilty of a for- cible detainer against the landlord ; 3 Bibb, 266. One claiming in oppo- sition to the title of the tenant is not entitled to be admitted defendant with the tenant ; 2 Coiven, 594. The tenants in possession are the proper defendants to an action of ejectment, although the landlord has a right to be made a defendant, to prevent his be- ing injured by a combination be- tween the lessor and his tenant ; but he may waive his right, or having asserted it, may relinquish it by con- sent of the plaintiff; 2 Call, 498. Every person may be considered as a landlord, for the purpose of being admitted to defend, " whose title is connected to, and consistent with, the possessionof the occupier ;" 1 Wend. 316. A person may be admitted to defend as landlord, between whom and the defendant a privily of inter- est exists, although he do not receive rents, which is not the true test ; Col. Sf' Caines Can. 56. The assign- ee of a mortgagee may be let in to defend ; 17 Johns. Rep. 1 12. When the landlord unites with the tenant in defending the suit, it is sufficient to prove the tenant to have been in pos- session at the commencement of the suit, and his possession is deemed to be the possession of the landlord ; 11 Johns. Rep. 434. When the plaintiff claims to recover no more than the interest of the tenant in the premises, subject to the rights of the landlord, or claims nothing inconsis- tent with the rights of the landlord, the landlord will not be let in, for he has no interest to defend ; 1 Wend. 103. When the lessor claims an in- terest inconsistent with the title of the landlord, the latter may defend ; 1 Wend. 317- Persons cannot be admitted defendants after their agent, whom they permitted to defend for them, has been admitted and con- fessed a judgment ; 5 Lift. 129. If a party should be admitted to defend as landlord, whose title is inconsist- ent with the possession of the tenant, the lessor of the plaintiff may apply to the Court, and have the rule dis- charged with costs ; Mams Eject. 232. If, however, he neglect to do so, and the party continue upon the record as defendant, such party will not be allowed to set up such incon- sistent title as a defence at the trial ; 4 M. 6,- S. 347. The affidavit on which to move that the landlord may defend, should show the relation of landlord and tenant ; That the tenant claims no interest except as tenant to the landlord, is not sufficient ; 6 Cow- en, 594. On motion to be received to defend as landlord, it is competent for the i)laintiff to show that the land- lord had, after the lease, conveyed away all his interest in the premises; 5 Co wen, 447. When the declara- EJECTMENT. 337 Verdict and Judgment for part. aforesaid, say, that the said John Smith is not guilty of the trespass and ejectment, [or, trespasses and ejectments,] above laid to his ciiarge : Therefore It is considered, that the said John Doe do re- cover against the said John Smith his said term [or terms] yet to come of and in all that part of the tenements, with the appurtenan- ces, in the said declaration mentioned v^^ithin the metes and bounds following, that is to say, Beginning, &.c: [same description as in the tion was served on landlord and ten- ant, and the landlord alone defended, and there was judgment for him, there can be no judgment by default against the tenant ; 8 Dana, 178 ; When there are several tenants ; 9 Bana, 454. 2. Consent Rule. The Common Consent rule, as known in England, and in some of the United States, has been abolished in Ohio by a rule of the Sujireme Court, adopted at the December Term of the Court in Bank, 1831. This rule de- clares, that in all cases where any person is admitted to defend in eject- ment, in place of the casual ejector, he shall be required to confess the lease, entry and ouster, to admit him- self in possession of so much of the premises as he defends for, defining the extent and boundaries of that possession, and to plead not guilty, all which shall be reduced to writing and signed by counsel, whereupon the issue shall be considered as made up, without any change of the dec- laration. After Consent rule enter- ed, the defendant is bound to admit possession ; 14 Pet. 323. After is- sue joined, no exception can be ta- ken to the declaration ; 1 Marsh. 6. Where several defendants hold dis- tinct parcels, but join in a plea, they cannot afterwards object that there ought to have been several suits ; 1 Marsh. 107. Nor need it be proved that they entered or held jointly ; Id. 151. Confession of lease, entry and 43 ouster, its effect ; 2 Dana, 40. When two defendants are sued jointly, they have no right to enter into separate Consent Rules in name of each alone ; 3 Cowen, 356. When the action is brought by a joint tenant, parcener, or tenant in common, a- gainst his companion, to support which an actual ouster is necessary, the defendant ought to apply to the Court upon affidavit for leave to en- ter into a special rule, confessing the lease and entry, but not ouster, and this special rule will always be gran- ted, unless it appear that the claim- ant has been actually obstructed in his occupation ; Mains Eject. 236 ; Burr. 1895; 2 Taunt. 397; 18 Johns. Rep. 398. An affidavit that the tenant '^ claims as tenant in com- mon with the lessors of the plaintiff, and that as he is advised by counsel and believes, he is tenant in com- mon " with them, is sufficient to en- title him to enter into the Consent Rule specially ; 6 Cowen, 391 ; 2 lb. 585. But an affidavit " that, as as he this deponent, verily believes, this ejectment will involve a question between tenants in common " is not sufficient ; Ibid. To obtain leave to enter into the Consent Rule special- ly, the defendant must apply to the Court, and is, therefore, entitled to have the costs of such application taxed in the final bill of costs, if he be successful ; 4 Cowen, 16. The lessor of the plaintiff is not bound, of course, to enter into a special con- sent rule, but only on application to the Court ; 2 Cowen, 442. If the 338 EJECTMENT. Verdict and Judgment for part. Verdict,] and also his damages by the jurors aforesaid, in form afore- said, assessed ; together with his costs herein expended, taxed to — dollars : And as to the residue of the tenements, with the appurte- nances, in the said declaration mentioned, whereof the said C. D. is acquitted in form aforesaid, that the said C. D. go hence without day, &.C. For Forms of Special Verdict, See Verdicts in Assumpsit, Ante. 153. For Forms of Habere Facias, See Executions, Post. defendant claim title as tenant in common, he cannot object that no ac- tual ouster was proved at the trial ; 4 Johns. Rep. 311. In an action by one tenant in common, who has not been ousted, apjainst his cotenant, the latter may enter into the Consent Rule, where he does not dispute the title as to part of the premises only, and the plaintiff may take judgment as to the residue, and recover the mesne profits thereof from his coten- ant ; 1 1 Johns. Rej). 461. It seems, that in such case, when the title is not denied, the tenant need not stip- ulate to confess ouster ; Ibid. 3. Pleas in Abatement and in Bar. For general Rules regulating Pleas in Abatement and in Bar, See Same Titles in Assumpsit, and Debt. Not Guilty, is, in general, the only admissible plea in Ejectment ; Ad- ams Eject., 243. Matter of defence arising after issue joined must be pleaded puis darrein continuance ; 3 Cowen, 75; .5 Ohio Rep., 452. A release from the lessor, after issue joined, cannot be plead, John Doe being the real plaintiff on the record ; 4 M. .V ,S'., 300; U) Johns. Rrp., 108. It is no cause of Abatement that the plainliffentered into possess- ion of the premises pending the ac- tion ; 1 Root, 73. The death of the lessor, will not abate the action, nor can it be pleaded puis darrien con- tinuance; Strange, 1055; Adams Eject., 289 ; 18 Johns. Rep., 495 ; 1 Wend., 27; 3 TFend., 153 ; 2 Bibb, 148; 9 Ohio Rep., 45 ; 2 do., 301, 287. Nor is the action abated by the death of the defendant ; Sivan's Stat., 669, § 88. Marriage of feme lessor does not abate the suit ; 2 Bibb, 535. 4. Consolidation. When several tenants are in pos- session, to whom the claimant deliv- ers declarations for different premises, the Court will not join them in one action, on the motion of either party, although the claimant has but one title to all the lands ; for if the motion be made on the part of the plaintiff, the Court will object, that each de- fendant must have a remedy for his costs, which he could not have if all were joined in one declaration, and the plaintiff prevailed only against one of them ; and if it be made on the part of defendants, that the lessor might have sued them at diflt^rent times, and it would be obliging him to go on against all, when perhaps he might be ready against some of them only; Adams Eject., 237; Strange, 1 149. But when several ejectments, arc brought for the same premises, upon the same demise, the Court on motion will order them to be consolidated ; 7 T. R., 477 ; Ad- ams Eject., 237. Also, when the premises are different, though the EJECTMENT. 339 Writ of Restitution. Writ of Restitution.'* [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas by our Writ reciting, That whereas John Doe on the — day of — A. D. in our Court of Common Pleas within and for the Court will not consolidate the actions, yet where thirty-sevtn actions were brought against separate individuals, and all depending upon the same ti- tle, Lord Kenyan said it was a scan- dalous proceeding on the part of the claimant, and ordered the proceed- ings in all the cases to be stayed, and abide the event of a verdict in one of them ; 2 Sell. Prac, 144 ; Adams Eject., 237. When a num- ber of causes are brought and all de- pend upon the same title, and the questions to be litigated, and the ev- idence are the same in all, it is com- petent for either party to make an application to the Court, that only one of the causes be tried ; and that the plaintiff be not prejudiced by his omission to try the others ; and in a clear case, that they abide the event of the case to be tried. In passing upon such a motion, the Court will be guided by the admission of the party against whom the motion should be made. If the affidavits of the parties should agree that the points of inquiry and the evidence would be the same in all the causes, the motion would be granted. If they should disagree, though they should only leave the matter in doubt, the motion would be denied ; 4 Co wen, 78 ; S. P. 5 Coiven, 282. Though a plaintiff cannot compel two defend- ants, having several interests, to sub- mit to a joint trial, yet they may con- clude themselves, by a joint appear- ance and plea ; 4 Yeates, 272. De- fendants, after they have taken a joint defence, are not permitted at the trial to sever this defence ; 1 Harr. 4* Johns., 182. Where sev- eral defendants hold distinct parcels, but join in a plea, they cannot after- wards object that there ought to have been several suits ; 1 Marsh., 107. Nor need it be proved that they en- tered or held jointly ; /(/,, 151. 5. Order of Survey. Unless the Order of Court name a day certain, reasonable Notice of the time of making the survey is to be given to the adverse party ; Swanks Stat., 893, § 6. The Surveyor may call upon the Sheriff' to remove force, &c. § 9; and may take the testimony of witnesses on the ground touching corners, lines, &c, himself adminis- tering the oath ; § 6. V. What Title will support an Ejectment. Plaintiff' cannot prove there was no consideration for a deed set up against him, if one is expressed ; but he may show the consideration vi- tious ; 2 Marsh., 299. Plaintiff" un- der a deed for " the balance of a tract of land," must show what that balance is ; 3 Marsh., 20. Twenty (a) See note (a) Ante. 322. 340 EJECTMENT. Writ of Restitution. said County of — recovered against John Smith his term yet to come in [Two messuages, &fc., as in the Habere Facias] situate in your bailiwick, which John Rogers had demised to the said John years adverse possession is a good title to maintain ejectment upon ; 3 Marsh., 30. The plaintiff must show that he had title at the com- mencement of his action ; 2 Dana, 68. And the service of the declara- tion is the commencement ; Id. It is sufficient for the plaintiff to show a forcible trespass, without color of title; 5 Dana, 397. The assignment of a debt secured by mortgage does not pass the legal title; 1 Blackf., 139. Against judgment debtor, it is enough to show— a judgement — execution — and Sheriff's deed ; but not against a stranger in possession ; 1 Blackf., 372: See ^Fng-/i/, 51, 458. Plain- tiff may produce defendant's deed to show a common source of title ; 14 Pet., 84: See tVright, 366. One having title to wild lands, who pays taxes, and exercises acts of own- ership over it, has a possession that will maintain ejectment ; Wright, 330. A wife under a decree giving her the use of a house and lot for alimony may recover the possession in ejectment ; Wright, 205. For other cases in Ohio, See Wilcox's Digest, 215. VI. What can, and What can- not, BE set up to defeat AN Ejectment. Lessor and Lessee — Lessor, at the execution of the lease, has an equit- able title only, and afterwards exe- cutes a mortgage of " all his inter- est" — Lessor brings ejectment ; Les- see may set up want of title in Les- sor ; 2.5 Eng. Com. Law Rep., 359: See 4 Blackf. 448. A contract of purchase performed, is good to pro- tect the possession against Vendor ; 14 Wend.,227; 7.7. J. Marsh,318. So, if the purchaser be in no defaidt; 15 Ohio Rep., 408; Wright, 18. Marriage of baron and feme Lessors, must be proved ; 3 Wend., 149. Misnomer in demise is fatal on non- suit ; 3 Wend., 149. So Elisha for Elijah; 5 Monroe, 215. Sheriff's deed under which plaintiff claims may be impeached for fraud and cov- in ; 3 Bibb, 217. Defendant cannot show an adverse grant of the same date with plaintiff's unless he con- nects himself with it ; 4 Bibb, 520. A sale by lessor, lis pendens, does not abate the suit ; 1 Marsh. 166 ; 2 Ohio Rep., 287; 4 M & S., 301. Defendant cannot impeach plaintiff's deed for fraud ; 2 Marsh. 204. A prior surrender of possession is no bar to a subsequent ejectment ; 3 Marsh. 170. A Vendee who has sued on his title bond, for want of title, and obtained satisfaction, can- not deny his Vendor's title ; G J. J. Marsh. 607 ; 7 Monroe, 105. If the declaration calls the lessors "heirs," they may show themselves " devis- ees ;" 2 Litt., 269. Vendee in pos- session — Vendor sells to another — Vendee may buy in an outstanding title to protect his possession ; 7 Monroe, 105. A subsequent deed cannot be set up against a prior un- recorded deed to show outstanding title, unless the defendant claims un- der it ; 7 Monroe, 267. If defend- ant sets up an outstanding title in a stranger, and it appears the stran- ger's right is tolled by adverse pos- session, the defendant cannot avail himself of such outstanding title ; 4 Dana, 562. Whether a sale of land on execution was void or not may be tried in Ejectment ; and it makes no difference if the sale was in the Courts of the United States ; 5 Da- EJECTMENT. 341 Writ of Restitution. Doe for a term not yet ended, we lately commanded you, that you should cause the said John Doe to have his possession of his term aforesaid yet to come, in the tenements aforesaid with the appurte- na, 278; 8 do., 200. One Avho comes ivrongfully into possession cannot set up an outstanding title ; 5 Liu., 318: Ske 1 Blackf., 136; Wright, 53. After 20 years' pos- session under a title bond a deed may be presumed ; 9 Dana, 393 : See 16 Pick., 137. One in possession under title bond cannot be sued in ejectment until demand of possess- ion ; 5 Black/., 570. When several defendants hold distinct parcels, but join in a plea, they cannot afterwards object that there ought to have been several suits ; 1 Marsh. 107. Nor need it be proved that they entered or held jointly ; Id., 151 : See 9 Dana, 454. The plaintiff must show title at the date of his demise ; 3 Marsh., 134. For Cases in Ohio, See Wilcox's Digest, 215. VIl. Verdicts and Judgments. The jury may find by metes and bounds, and Judgment is rendered accordingly ; 6 Pet. 212. After con- sent rule, the defendant is bound to admit possession ; 14 Pet. 322. The Judgment must be for the premises in the declaration mentioned, and not for lands in a plat referred to ; 3 Marsh. 136. A Verdict being for the plaintiff, for the lands laid down in a survey made in the cause, as comprehended within certain lines described by the jury ; a Judgment that the plaintiff recover his term yet to come, of and in the lands in the declaration mentioned, is errone- ous ; 2 Wash. 276. Where a dec- laration was served on landlord and tenant, and the landlord alone de- fended, and Judgment for him ; there can be no Judgment by default a- gainst the tenant ; 8 Dana, 178. For the effect of a Judgment in E- jectment in collateral cases, See 1 Ed. Ch. Pep. 331. Judgment gives the plaintiff a right of entry ; 7 J. J. Marsh. 628 : And that, too, before improvements, &c., are assessed ; 3 Monroe, 13 ; 4 do. 357. In Eject- ment against several defendants, who possessed the premises in separate parts, and who entered into the con- sent rule and pleaded jointly, the jury found each defendant separately guilty, as to that part of the premises in his separate possession, and not guilty as to the other parts possessed by the other defendants ; the Verdict is good, and the plaintiff is entitled to Judgment against all the defend- ants, severally, according to the find- ing of the jury ; 5 Johns. Rep. 278. When several defendants appearand plead jointly, and enter into the con- sent rule jointly, the plaintiff is bound to prove a joint possession of all the defendants ; and if on the trial it appear that two of the defen- dants occupied distinct parcels in severalty J and that the other defen- dants possessed the residue of the premises jointly, the plaintiff can have Judgment only against the de- fendants holding jointly, and the de- fendants holding in severalty, will be entitled to Judgment ; 2 Johns. Rep. 438. But See 1 Marsh. 107, 151: Where it is held that where several defendants hold distinct par- cels, but join in a plea, they cannot afterwards object that there ought to have been several suits ; nor need it be proved that they entered or hold jointly. A Judgment for the plain- tiff on a single demise, contained in a single count, that he recover his term in two parcels of land, being erroneous as to one parcel, is so in 342 EJECTMENT. Writ of Restitution. nances, and how you should execute that our writ you should make appear to the Judges of our said Court of Common Pleas, on the first day of their then next Term ; By virtue of which writ you caused toto ; Per Spencer, 8 Cotven, 406. Otherwise, perhaps, where the dec- laration contains more than one count; Jb. Where the title of the lessor, being a life estate, ends before the trial, the plaintiff is entitled to Judg- ment, but Avith a perpetual stay of the writ of possession, so as to ena- ble him. to bring an action for the mesne profits ; 18 Johns. Rep. 295. The jury may find a general Verdict for the plaintiff, if the defendant pro- duce a patent of elder date for a part of the land, Avithout designating what part ; 4 Bibb, 285. When the dec- laration contains two demises, one valid and the other void, and the Judgment is, that the plaintiff recover his term, in the singular, it shall be adjudged to have been rendered on the valid demise ; 3 Lilt. 334. If several demises are laid in the decla- ration, from several lessors, and the Court give Judgment for the plaintiff to recover " his term yet to come," the Judgment will be sustained, and the plaintiff can only have one exe- cution ; 3 Rand. 462. The usual Judgment is for the premises in the declaration mentioned; and a Judg- ment for all the lands that the tenant had not enclosed on a certain day is good ; 5 Litt. 322. A Judgment in Ejectment, until reversed for error, or rendered void by a subsequent ad- verse recovery, is conclusive between parties and privies, for the time laid in the declaration ; Hinton v. Mc- Neil, 5 Ohio Rep. 509. A Judg- ment is no bar to a subsequent E- jectment ; lb. A subsequent ad- verse recovery in Ejectment vacates the former Judgment ; lb. In Eject- ment, new trials are granted more readily Avhen the Verdict is against the defendant than when against the plaintiff; for the plaintiff has but the costs to pay, and begin again ; Les- see of Muhlenburgh^s heirs v. Flor- ence, 5 Ohio Rep. 245. After Ver- dict for the defendant, a new trial is hardly ever granted ; the plaintifl' may as well begin anew as to pay the costs on a new trial ; Lessee of Glov- er'' s heirs v. Rvjffin, 6 Ohio Rep. 255. Courts of Justice are liberal in their rules for setting aside Judgments a- gainst the casual ejector, although regularly obtained ; and will grant them even after execution executed, upon affidavit of merits, or other circumstances, which at their discre- tion they may deem sufficient ; Ad- ajns Eject. 224; Burr, 1,996; Strange, 975 ; 5 Taunt. 305. The regular mode of setting aside such Judgments is by rule of Court, for the party to redehver the possession ; but if circumstances requiiiE it, the Court will order a writ of restitution ; Adams Eject. 225 ; TV. Blk. 892. When the tenant swears to merits, and no trial has been lost, a regular default will be set aside on payment of costs, to let in the tenant, to defend his possession ; 4 Johns. Rep. 489. The Court will go further to protect the possession, where it can be done without injury to the plaintiff, than it is willing in other cases to pro- ceed ; 1 Caines Rep. 503. Where there has been a Judgment by de- fault against the casual ejector, and a Hcdjere facias issued thereupon, the Court will, on affidavit of fraud or surprise, and of a real defence, and on payment of costs on the Judgment, set aside the Habere, and order restitution; 2 Halstead, 161. In a Judgment against the casual ejector no costs are recovered. The plaintiff has to pay them. If one EJECTMENT. 343 Writ of Restitution. the said John Doe to have possession of his term aforesaid in the tenements aforesaid, as by your return thereof appears : And because that writ did wrongfully, unadvisedly and erroneously, issue out of or more of several defendants are acquitted by a jury, they are entitled to costs ; Swcm^s Stat. 6G3, § 68. VIII. Habere Facias, and other Proceedings after Judgment. An alias Habere may issue after the execution of the original, if be- forc the return day, the possession is forcibly retaken by the defendant, or one claiming under him ; 1 1 JVend. 184. Otherivise where the return day has passed, or the plaintiff has taken possession peaceably, and is disturbed; 7 /. /. Marsh. 42; 5 Ohio Rep. 509. The Court will compel the real defendant to pay the costs though he is not a party to the record; 21 Eng. Com. Laiv Rep. 138. An ■'issue may be directed to try wheUle^r the Sheriff has deliver- ed possession properly ; 5 Burr. 2672. If one who was neither par- ty cr privy is turned out by Habere, he may sue Forcible Entry ; 1 Marsh. 333. A purchaser, lis pendens, may be evicted on Habere without being made party; 2 Marsh. 40. The plaintiff cannot have possession of lands not in the possession of the de- fendant when the suit was brought ; 2 Marsh. 2(J2. The judgment gives plaintiff a right of entry ; 7 J. J. Marsh. 628 ; and that too before im- provements, &c. are assessed ; 3 Monroe, 13; 4 do. 357. What may be taken possession of on Ha- bere, where there is a tenant; ^Mon- roe, 541. No Habere can issue after the expiration of the demise •,^ Monroe, 601; 6 Dana, 429; 3 Marsh. 393. Two Ejectments by different plaintiffs, at same time, a- gainst same defendants — One recov- ers and has his Habere — The other then recovers — The latter cannot have an Habere, but is put to a new suit; 2 2}a?2a, 33. An Habere need. not actually turn a party off the premises ; if he submits, it is e- nough ; 5 Dana, 378. The Sheriff delivers possession as the plaintiff di- rects, and he acts at his peril ; bLitt. 323. In trespass for mesne profits improvements cannot be set up ; 8 Dana,m. See 1 Blackf. 255. The Sheriff may break open House, &c. on Habere; 4 Blackf. 18. Where A. after a Judgment in his favor a- gainst B,, but before execution, con- veys the land toC, who prevails on B.'s tenant (the defendant in Eject- ment,) to go out peaceably: and C. then takes possession ; and after- wards B. in another Ejectment, re- covers against C on a better title, and ousts him by an Habere — C. cannot now sue out an Habere on A.'s old Judgment — That is functus officio ; Hinton v. McNeil, 5 Ohio Rep. 509. Judgment may be re- vived by Scire Facias ; 14 Pet. 147. Where an abortive execution has been issued, another may issue with- out a Sci. Fa. though the year has passed since the judgment ; 3 Marsh. 522. Against Avhom Sci. Fa. ought to issue if one of two defendants be dead; 1 /. /. Marsh. 209; and the like on a joint Judgment; 1 Lilt. 243. It must appear in the Sci. Fa. that the term has not expired ; 1 J. J. Marsh. 212; 7 Monroe, 601. Persons who enter as tenants, after judgment, need not be parties to Sci. Fa.', 5 /. /. Marsh. 105. To a Sci. Fa. to revive, it is a good plea, that the demise was extended by an ex parte order; 2 Dana, 57. See 6 Dana, 429. In a Scire Facias to 344 EJECTMENT. Writ of Restitution. our said Court of Common Pleas, Therefore we command you that without delay you restore to the said Joseph Smith his full possession of said tenements, with the appurtenances, from him so unjustly revive a joint Judgment, in Eject- ment, against several defendants, the plaintiff', it seems, cannot proceed in his case, till all the defendants are before the Court, either by actual service, or by two nihils; Hough'' s Lessee v. Norton, 9 Ohio Rep. 45. It is not enough in such Scire Facias, to recite that a Judgment was "late- ly" recovered, &c.; it ought to ap- pear that the Judgment had become dormant by lapse of time or other- wise; lb. If the plaintiff in Eject- ment, after Judgment, takes posses- sion without writ, and " after a lapse of years," the defendant again enters upon him, the plaintiff', it seems, is put to a new action ; lb. So, if the plaintiff after Judgment, lease to the defendant, who fails to paj^ rent, the owner has to bring a new action ; lb. And if the plaintiff, after Judgment, contract to sell the lands to the de- fendants, no Habere can afterwards issue on the Judgment; not even in default of payment; for the making- such a contract, not merely suspends the right to issue execution, but takes it away forever ; lb. The Sci. Fa. must be against both heirs and t.enc- tenants ; 14 Pet. 153. In Ken- tucky, the demise cannot be enlarged after judgment, though the proceed- ings were stayed by injunction ; 3 Bibb, 27. Miter if there be any fraud or artifice; J. J. Marsh. 263. See 4 Monroe, 354; 7 do, COl. But if the demise is about to expire, the Injunction will be dis- solved unless the party will agree to enlarge the Term; Dana, 429. Enlarging the demise is matter of discretion ; 9 Wheat. 576 ; A Pet. 155; 2 B. & A. 773 ; 6 Binn. 115. There must be a Rule to show cause ; 8 Eng. Com. Law Rep. 38 ; 4 Burr. 2447 ; 6 Munf. 185 ; 14 Pet. 153 ; 1 Mcl^ene, 143. It will not be done where it brings neiv parties on the record; 14^ Pet. 153; 9 Ohio Rep. 45. Nor where the Statute of Hmi- tations has attached ; 1 Cowen, 1 56. In 7 Pet. 144, the demise was ex- tended after Judgment — Then a writ of error coram Vobis to set the order aside, and it was done — Then a writ of error to the Supreme Court, to vacate that judgment, and the writ was quashed there on motion. The practice now, in England, is to send the plaintiff into Equity to correct the mistake; 8 Eng. Com. Law Rep. S8. See 2 B. & A. 773; 4 Monroe, 3.50, 354. If Habere be set aside. Restitution may be awarded; 3 Bibb, 315. A Sheriff exceeding his authority cannot give a valid ])os- session, and restitution may be had ; 2 3Iarsh. 262. A Sci. Fa. for res- titution may be resorted to; 1 J. J. Marsh. 270. For general rules regu- lating restitution of possession. See 3 Marsh. 393, 521 ', 2 J. J. Marsh. 388 ; 3 fZo. 5 ; 7 do. 628 ; 1 Monroe, 15; 3f/o. 51; b do. 542; 1 LAtt. 237; 5 c/o. 304; 6 Dana, 127; 8 do. 313. Casual ejector may main- tain error on judgment by default; 3 Ohio Rep. 26. ^ Contra; 1 Black/. 214. In such case, the tenant can- not sue error, but casual ejector on- ly ; 3 ^i66, 433. A joint judgment against several, one being dead, is erroneous; Adams Eject. 300, Er- ror in fact lies on judgment in the Circuit Court of the U. States; 7 i^l44; 1 McLene, 143. See 20 fVc7ul. 626; 19 ^/o. 620. Who may bring error; 8 Co?t'en, 333, 336 ; 10 Muss. 73; See Error, Post. EJECTMENT. 345 Writ of Restitution. taken as aforesaid : And how you shall execute this writ, make ap- pear to the Judges of our said Court of Common Pleas, on the first IX. Amendments. The old rules in regard to Amend- ments have been relaxed ; and the demise, term, &c., are now con- sidered as formal only, and may be amended if necessary ; Adams E- ject. 202. Where the demise was laid anterior to the time of the entry to avoid the fine, and the suit was staid by injunction, for more than five years after the fine was levied, so that the lessor was not in time to make a second entry, or bring a second e- jectment, the Court permitted him to change the day of the demise, to a day subsequent to the day of entry ; Burr. 2417; S. P. Adams Eject. 203. This permission will not be extended to the injury of the defen- dant, and therefore the Court will not suffer the day of the demise to be altered to a day subsequent to the day of the delivery of the declara- tion, for this would give the lessor a right of action which did not exist at the commencement of his suit ; Ad- ams Eject. 204. The term also may be enlarged after its expiration upon payment of costs, although the issue be made up, and the cause ready for trial; 2 W. Bl. 940; Cowp. 841. A plaintiff ought not to be permitted to add a new count stating a demise alter the commencement of the suit, but if such amendment were not ob- jected to by the defendant, and he appears to have sustained no injury in consequence of it, the judgment will not be reversed; 3 Litt. 333. The declaration may be amended as in other actions : 2 Penn. Rep. 710. A motion to file a new declaration, the original being lost out of the of- fice, and the defendant served with a notice to produce a copy, was refu- sed ; 1 Murphy, 268. An amend- 44 ment, by inserting a new demise, is generally allowed, of course, where the proposed lessor has a subsisting title; 1 Cowen, 156, Otherwise where the Statute of hmitations has attached ; Ibid. The plaintiff may amend by changing the time of the demise, at any time before verdict, on such terms as will impose no hard- ships on the defendant : 3 Harr. ^ Johns. 13. So, to make the demise subsequent to the date of his title ; 4 Bibb, 480. Another count cannot be added containing a demise from another person, and for a tract of land not before claimed ; 1 Marsh. 450. The demise may be enlarged; 1 Hayw. 501. The declaration may be amended after issue joined, by in- troducing a new claim, but such in- troduction has no relation back to the service of notice ; but the suit, as to the new claim, originates with filing the amendment : 3 Marsh. 19. It is doubtful whether a Court, under any circumstances, will permit a new count to be added, laying a demise from a different person; 3 Litt. 237. Several demises added on payment of costs, it appearing that new lessors had a subsisting legal title ; 3 Cow- en, 356. Cause must be shown by affidavit for leave to add a new de- mise ; 6 Cowen, 39. Contra ; 2 Cable's Rep. 261 ; 2 Cable's Rep. 177. After six year's service of the declaration, leave was given to a- mend, by adding new demises, on the plaintiff's paying all the costs, in case the defendant should choose to relinquish his defence ; 1 Caine's Rep. 231. Anew demise will not be allowed from a person who has no claim, or any subsisting title to the premises ; 4 Johns. Rep. 83. The defendant may at any time, move to have the demise of a lessor 346 EJECTMENT. Writ of Restitution. day of their next term ; And have you then there this writ. Witness, F. C, Clerk of our said Court of Common Pleas, at C, this — day of — , A. D. — . F. C, Clerk. who died before the commencement of the action, struck out of the dec- laration, without costs ; 1 Cable's Rep. 20; Cole. Cas. 102; 3 Johns Rep. 259. A lessor may be struck out of the declaration, on affidavit of his having no interest in the premises ; 10 Johns Rep. S68. The general rule is, that a lessor ought to have a subsisting title or in- terest in the premises ; but under special circumstances, the Court will permit his demise to be retained ; Jbid. The date of the demise may be altered ; 3 Halsted, 366. A mo- tion to enlarge the term of the de- mise, where judgment was rendered in 1790, was refused in 1822; 5 Harr. fy Johns. 437. A party be- ing prevented from suing out execu- tion, by an injunction which contin- ued in force for many years, during which, the term in the declaration expired, the Court would not permit it to be enlarged, unless it were quite clear that the amendment would work no injustice to the opposite party ; 1 Barnw. 4' Cress. Rep. 121. The demise cannot be enlarged after judg- ment and expiration of the demise, though the proceedings were stayed by injunction ; 3 Bibb, 27. The date of the demise may be amended, during the trial, so as to conform to the title; 7 Crunch. 471. Declar- ation amended by altering the' time of the demise, which was laid before the title accrued, upon payment of the costs of the motion, though the case had been twice brought to trial ; 6 Coiven, 590. The demise may be amended after non-suit, on the ground that the lessor was a feme covert at the time of the demise ; 2 South. 850. If the demise expire before the verdict and judgment in the Court below, error lies ; 3 Harr. 4' Johns. 228. In such case, the Court below, under a Procedendo directing a new trial, may enlarge the term of the demise ; Jbid. An amendment may be made so as to change the de- mise from a joint one by all the les- sors, to separate demises for undivi- ded portions ; 3 Harr. <5" Johns. 378. The Court will exercise a discretion in allowing an amendment, but when the Court refuse an amendment, it is no ground of error ; 9 Wheat. 576. The expiration of the term previous to decision on an appeal, is of no im- portance ; 1 Hen. Sf Munf. 177. If the term expire before trial, leave will be given to amend ; 1 Munf. \11 ; or a new demise may be added on payment of costs ; 18 Johns. Rep. 510. If the objection, on the ground of variance, is made at the trial, and the plaintiff is non-suited, it seems, that the Court will set aside the non-suit, and give leave to amend on payment of costs ; Ibid. Where the term expires before the trial, al- though possession of the property cannot be recovered, yet the plaintiff may proceed for damages for the trespass and for the mesne profits ; 1 Pet. C. C. Rep. 291, 299. Where the title of the lessor, being a life es- tate, ends before trial, the plaintiff, though he cannot turn the defendant out of possession, is entitled to judg- ment, so as to enable him to recover the mesne profits, but with a pcrpet- ual stay of execution; 18 Johns. Rep. 295. The general rule is, that a plaintiff shall recover according to his right at the time of the suit brought ; but if pending the suit, his title is divested, either by act of law I EJECTMENT. 347 Occupying Claimants. Occupying Claimants.'' In all cases where an Occupying Claimant being in quiet possess- ion of any lands or tenements, for which such person can show a plain and connected title, in law or equity, derived from the records of some public office ; or being in quiet possession of, and holding the same by deed, devise, descent, contract, bond or agreement, from any person claiming title as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded ; or being in quiet possession of, and holding the same under sale on execution, against any person claiming title as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded ; or being in possession of, and holding any land under any sale for taxes, authorized by the laws of this State, or the laws of the or his own act, he shall not recover possession against the will of the party in whom the title is vested, but he is entitled to his damages and costs ; 4 Feafes, 382. " So, under the acts of 1806, and 1807, he may recover nominal damages and full costs, though he has conveyed the title to a third person pending the suit; 4 Sergt. 4- Baivle, 130." When the rights of the defendant are not affected, or he consents, the name of a lessor may be struck out, on motion of such lessor, at any stage of the proceedings, though he origi- nally consented to its insertion, but it must be on payment of his share of the costs ; 5 Coiven, 418. For Amendments of Demise, &c., after Judgment, See Habere Facias and other Proceedings after Judgment, Ante. 343. X. Occupying Claimants. In 1640 there was in Virginia a Statute for the valuation of Improve- ments, &c. : See Preface to Virginia Statutes at Large. General Rules for estimating improvements. &c., at Law and in Equity, before the Stat- ute ; Hardin, 597 : See, also,7 /. J. Marsh. 381 ; 1 Monroe, 36, 162; 2 do., 34, 130; 5 do., 131 ; 7 do., 538; 2 Litt. 165,208,280 ; 8 Dana 66 ; 1 Blackf, 377; 1 Johns. Ch., 287. In account for rents and profits Chan- cery sometimes goes back to the com- mencement of the title — sometimes is governed by the Statute of Limita- tions-^and sometimes goes back only to the time of filing the bill ; 4 Br. Ch. Rep., 345, note : See 3 Bibb, 31. How the Occupying Claimant Law is carried into effect in the Courts of the United States, See 2 Pet., 526 ; 3 Monroe, 58. Commis- sioners may be appointed at a term subsequent to the judgment; 1 Marsh. 187 ; 2 do., 26, One in possession, bona fide, beheving the land to be his own, but without any title legal or equitable, is entitled to pay for im- provements on general principles of Equity, aside from the Statute ; 1 Marsh. 246. S. P. Where parties claim under, the same patent ; 2 Marsh. 214: See 3 Marsh. 181,202, 389 ; 1 J. J. Marsh. 404 ; 2 do., 519. The successful claimant elect- (a) See note (a) Ante. 322. 348 EJECTMENT. Occupying Claimants. territory northwest of the river Ohio ; or any person in quiet possess- ion of any land, claiming title thereto, and holding the same under a sale and conveyance made by executors, administrators or guardians, or by any other person or persons, in pursuance of any order of Court or decree in Chancery, where lands are, or have been directed to be sold ; and the purchaser has obtained title to and possession of the same, without any fraud or collusion on his part ; cannot be evicted, by any person who shall set up and establish an adverse and better title, until the Occupying Claimant, or his heirs, shall be paid the value of all lasting and valuable improvements made on the land, by the Occupying Claimant, or by the person under whom he claims, previous to receiving actual notice, by the commencement of suit on such adverse claim, by which such eviction may be effected, unless the Occupying Claimant shall refuse to pay the successful claimant, the value of the land, without the improvements ; Small's Stat., 605. Upon the rendition of Judgment in favor of the plaintiff, either party may apply to the Court for the benefit of the Statute : Thus — John Doe ex. dem. A. B. ^ V. > In Ejectment. John Smith. ) This day A. B. the Lessor of the plaintiff, or, John Smith, the defendant, by Mr. O. his counsel, made application to the Court, for the valuation of improvements and assessment of damages under the Statute for the relief of Occupying Claimants, and the Court having ing to pay for improvements is enti- set aside on slight grounds ; 3 Marsh. tied to the crop growing on the pre- 502. The Statute does not extend mises when possession is taken ; 1 to profits after eviction ; 3 Marsh. Marsh, 367. When there are sev- 519. If the occupant delay nine eral claimants in the same suit, and months after the appointment ofCom- they elect to take the value of the missioners, the Court will set aside land, they must unite in the convey- the Order, and award execution ; 1 ance ; nor can the occupant be com- J. J. Marsh. 79. If Vendee, on pelled to pay for a part of the land, eviction, receives pay for his im- and receive pay for part of the im- provements, and afterwards the Ven- provements ; 1 Marsh. 382. The dor makes the title good, the vendee plaintiff must release the title at the shall refund to the evictor ; H J. J. time the bond for the value is given ; Marsh. 257. The Landlord may set 3 Marsh. 15. The Statute does not up a claim for improvements, when apply when the claim is brought in the Tenant omits to do it ; 5 /. J. after suit brought, or when the pos- Marsh. 315. The report by a jury session and previous claim are not of a sum in favor of the plaintiff, or connected ; 3 Marsh. 59. The Re- if no excess be reported in his favor, port of Commissioners is not to be in either case, the action for mesne EJECTMENT. 349 Occupying Claimants. considered of the same, are of opinion that he is entitled thereto : Wliereupon, It is ordered that further proceedings may be had in the premises agreeably to the provisions of said Statute. The application having been allowed by the Court, the Sheriff and Clerk, when requested by either party, are required by the Statute, to meet, and draw a jury of twelve men, in the same manner that juries in other cases are drawn ; and thereupon the Clerk issues an order to the Sheriff, under the seal of the Court, setting forth the names of the jury, and the duties to be performed by them. These duties consist, in making an assessment of the value of all lasting and valuable improvements made on the land, by the occupying claimant, or by the person or persons under whom he claims, previous to re- ceiving actual notice, by the commencement of the action of eject- ment ; and also of the damages, which the land may have sustained by waste, together with the net annual value of the rents and profits which the occupying claimant may have received, after notice of plaintiff's title, by the service of the declaration, and deduct the amount thereof from the estimated value of such improvements. The jury also must assess the value of the land, without regard to any improvements, or damages sustained by waste ; and the report, signed and sealed, must be deposited with the Clerk, before the first day of the term next after the date of the order ; Small's Stat., 605, The Form of the Order to the Sheriff may be thus : profits is barred ; Swan's Stat. 608, stead of a jury ; HunVs Lessee v. § 7. The proceedings under the McMahan, 5 Ohio Rep. 133. A pur- Occupying Claimant Act, are not a chaser on execution, on being evict- continuation of the action of eject- ed, is entitled to the benefit of the ment, but a separate matter, in which Occupying Claimant Law ; Seller's the party prevailing is entitled to Lessee v. Corwin, 5 Ohio Rep, 398. costs ; Martin'' s Case, 1 Ohio Rep. A purchaser at administrator's sale, 156; S. P. Patterson'' s Lessee v. if evicted by the heir, is entitled to Prather, 11 Ohio Rep. 35. An Oc- the benefit of the Occupying Claim- cupying Claimant is entitled to pay a.ntLa.w ; Longworth v. PFolJington, for improvements made before his 6 Ohio Rep. 9 ; S. P. 13 Ohio Rep. title commenced ; Martin v. Boon, 308 : See Wright 386. The office 2 Ohio Rep. 237 ; S. P. 13 Ohio of Township Trustee is a pubhc of- Rep. 308. Equity has, no jurisdic- fice, within the Occupying Claimant tion to allow an Occupying Claimant Law, as to leases of school lands ; payment for his improvements : He Lessee of HarVs heirs v. Johnson, has an adequate remedy at Law ; 6 Ohio Rep. 538. One who pur- luiehy v. Par/cs, 4 Ohio Rep. 469. chases from a judgment debtor, after The Occupying Claimant Statutes execution actually levied, is not en- (prior to the Act of 1831) are not titled to the benefit of the Occupying void, as against the Constitution of Claimant Law; Vincent v. Goddard's Ohio, because the improvements are Lessee, 7 Ohio Rep. 188, Part 2d. to be valued by Commissioners, in- Where Equity sets aside the deed of 350 EJECTMENT. Occupying Claimants. Order to Sheriff for Valuation of Improvements, &c. The State of Ohio, To the Sheriff of — County, Greeting : Whereas on the — day of — A. D. — , the lessor of A. B. recov- ered a judgment against C. D. in a certain action of ejectment lately pending in our Court of Common Pleas, within and for the said County of — for his term yet to come in the following lands and tenements, to wit, [Here describe the lands as in the declaration in ejectment, or, as in the judgment, when the lands are described in the judgment,^ and whereas, also, upon the rendition-, of said judg- ment, our said Court of Common Pleas, on application for that pur- pose, granted to the said C. D. the benefits of the statute for the relief of occupying claimants : We therefore command you, that without delay, by the oaths of E. F,, &lq,.,^ [Names of Jurors] and upon actual view of the premises, you cause to be made a just and true assessment of the value of all lasting and valuable improvements made upon the lands and tenements aforesaid, by the said C. D. or by an person or persons under whom the said C. D. holds the same, previous to the — day of — A. D. — [Date of the service of the declaration in ejectment:] and also, that, in like manner, you cause to be made a just and true assessment, of the damages, if any, which the said lands and tenements may have sustained by waste, together with the net annual value of the rents and profits which the said C. D. may have received from the same, from and after the — day of — Date of the service of the declaration in ejectment] de- ducting the amount of such rents and profits from the estimated value of the lasting and valuable improvements aforesaid ; and also that, in like manner, you cause to be made, a just and true assess- ment, of the value of the said lands and tenements, on the — day of — A. D. [Date of the final judgment in ejectment] exclusive of the improvements made thereon, and of the damages sustained by a Trustee, under an invalid decree it, be given to the adverse party, or of a Court of Chancery, in Virginia ; his attorney of record ; Patterson's the Chancellor will see, that the pur- Lessee v. Prather, 11 Ohio Rep. 35. chasers under such Trustee, are com- Where the plaintiff conveys after pensated according to tlic principles judgment, a deed from his grantee is of the Occupying Claimant Law ; a sufficient compliance with the Henry v. Doctor, 9 Ohio Rep. 49 ; Statute ; 15 Ohio Rep. 285. S. P." 13 Ohio Rep. 368. A valua- tion of improvements, under the Oc- (a) The oath may be administered cupying Claimant Law, is invaHd, by any competent authority ; Swan's unless reasonable notice of making Stat. (305, § 4. EJECTMENT. 35I Occupying Claimants. waste as aforesaid: and of this writ make legal service and due return. Witness, F. C, Clerk of our said Court of Common Pleas, at C, this — day of — A. D. — . F. C, Clerk. Reasonable Notice of the execution of the Order is to be given to the adverse party ; 1 1 Ohio Rep., 35. Form of Notice. John Doe ex dem. A. B. ^ V. > — Common Pleas. Application for John Smith. ) Valuation of improvements, &.c. To A. B., or S. T. his Attorney . You are hereby notified that on — the Sheriff, at my instance, will proceed to execute the Order for the valuation of improvements, &c., granted herein at the last Term of said Court. John Smith. Dated, &c. The Sheriff notifies the Jury, who proceed to view the premises; and after having been sworn or affirmed by some officer of competent authority, they make up their Report ; Swan's Stat., 607, <^ 4. The Report must be under the sign and seal of the Jury, and is to be deposited by them with the Clerk of the Court, by whom they were appointed, before the first day of the next Term after the Order was made ; Jd. <§» 6. Report of Jury. We, the Jury named in the within Writ, having been first duly sworn, upon actual view of the premises in the within Writ de- scribed, do make the assessment therein commanded, as follows, to wit: 352 EJECTMENT Occupying Claimants. We find that the said C. D. previous to the day of — A. D. — [Bate of the ser- vice of the declaration iji ejectment] had erected upon said premises one brick house, which, with the fixtures, we esti- mate at $'1200 00 Also, one barn, estimated by us at 400 00 Also, one log cabin 60 00 We also find that, previous to the same date, the said C. D. had cleared and fenced seventy acres of the said land, the value of which improvement, we estimate at ... . 450 00 He had also planted one orchard containing two hundred apple trees, estimated by us at 300 00 Making the whole amount of lasting and valuable improvements upon said premises, $'2410 00 We further find that said lands have sustain- ed waste, by cutting down of valuable tim- ber, to the amount of $300 00 We also estimate the net annual value of the rents and profits of said lands, since the — Jay of — A. D. — [Date of the service of the declaration in ejectment] at 250 Dollars, which, to this date, (Two years and six months) amounts to 625 00 !925 00 Excess in favor of the occupying claimant.. $1485 00 And we do also estimate the value of said lands on the — day of — A. D. — [Date of final judgment in ejectment] at 6500 Dollars, exclusive of the improvements, and damages sustained by waste as aforesaid. In testimony whereof, we hereto put our hands and seals this — day of — A. D. — . E. F., &c., [seal.] The Court, on application of either party, and upon good cause shown, will set aside the proceedings of the Sheriff and the report of the jury, at the term to which the proceedings are returned, and order a new valuation to be made ; Swan's Stat. 605, <§> 6. EJECTMENT. 353 Occupying Claimants. If the jury report a balance due to the plaintiff' in ejectment, the Court will render judgment for such balance, without pleadings, and issue execution thereon as in other cases ; lb. *§> 7. The Form of the judgment may be thus : Judgment for Plaintiff in Ejectment for balance found by Jury. John Doe ex dem. A. B. ^ V. > Application to assess damages, &c, under John Smith. } Occupying Claimant Law. On motion to the Court, by Mr. O. counsel for the said A. B., and upon producing a report of the jury herein appointed to assess dam- ages, &.C., under the Statute for the relief of Occupying Claimants, whereby it appears that a balance of — dollars is due * to the said A. B. upon such assessment, It is considered that that the said A. B. recover of the said C. D. the said sum of — dollars his damages aforesaid, in form aforesaid assessed ; and also his costs herein ex- pended, taxed to — dollars. If the jury report a balance in favor of the Occupying Claimant, ihe plaintiff in ejectment may elect, either to pay such balance, within a reasonable time to be fixed by the Court, and take possession of the premises ; or he may tender a deed of the land to the Occupying Claimant, and demand the assessed value of the land, exclusive of the improvements ; and if the Occupying Claimant neglect to pay such assessed value, within a reasonable time to be fixed by the Court, the plaintiff in ejectment may sue out a writ of possession ; Swan's Stat. 605, *§) 8. He may also have a writ of possession upon paying the Occupying Claimant, the balance reported due to him, by the jury ; lb. § 9. Or, if the Occupying Claimant neglect or refuse to pay the assessed value of the lands, within the time limited by the Court, he having tendered a general warranty deed to ihe Occupying Claimant; lb. § 10. When the plaintiff in ejectment elects to surrender the land and receive the assessed value thereof, and the Occupying Claimant pays such assessed value into Court, and the plaintiff neglects or refuses to convey the premises, the Occupying Claimant may file a Bill in Chancery, in the Court which rendered the judgment in ejectment, to compel such conveyance; lb. >§> 11. 45 354 EJECTMENT. Occupying Claimants. Order of Court where the Plaintiff elects to pay for Improvements, &c. [Proceed as in the last Precedent to the * — to the said John Smith, upon said assessment, for his improvements, &c., upon said premises ; and the said A. J3. thereupon, in open Court, declaring his election to pay the said sum of — dollars to the said John Smith, according to the provisions of said Statute, It is therefore ordered that day be given to the said A. B. to pay said money until — next. The like, where the Plaintiff elects to take the Appraised Value, and Convey the Land. [Proceed as before — Whereby it appears that the value of said lands, without improvements, &c., is assessed by said jury at — dol- lars ; and the said A. B. thereupon, in open Court, declaring his election to receive the value of said lands, so as aforesaid assessed, and to make a general warranty deed of the same to the said John Smith, according to the provisions of said Statute, It is therefore ORDERED that day be given until — next, as well to tlie said John Smith to pay to the said A. B. the said sum of — dollars, as to the said A. B. to execute and tender to the said John Smith a general warranty deed of the premises aforesaid.'' &"- (a) Where the plaintiff conveys the Statute ; 15 Ohio liep. 286. See after judgment, a deed from his gran- Ante. 347. tee is a sufficient compliance with SCIRE FACIAS. 355 Praecipe, for Scire Facias. SCIRE FACIAS.^ A Scire Facias is issued, as a matter of course, upon filing a Praecipe with the Clerk of the proper Court. J— S— , V. L. M. and O. P. Precipe for Scire Facias. I- Scire Facias. Issue a Scire Facias against L. M. and O. P. upon their recogni- zance of bail at the — Term of the Court of A. D. — in a plea of (a) Origin of the Writ in England, 2 Beeves' Com. Law, 189. It is a writ founded on some matter of Rec- ord, as Judgments, Recognizances, and the like ; and its office is to make known to the defendant some matter, of which, he has a right to be inform- ed, and to afford him an opportunity, if he sees fit, to show cause why this or that step should not be taken against him ; 2 Saund. 71, (4) ; 6 Danes Abg. 463. It is sometimes a New action, and sometimes a mere Continuation of the former action ; Litt. s. 505; F. N. B. 207 ; 1 Saund. 72 ; 2 Wils. 251 ; 1 T. R. 267 ; 4 Ohio Rep. 397. In Ohio it is also a Statutory remedy to subject real estate to the payment of a Justice's Judgment ; Swmi's Stat. 521 — to make executors or administrators, parties to Judgments ; Id. 669 — to make defendants not served with pro- cess, or persons jointly liable, parties to Judgments ; Id. 658 — to revive dormant Judgments against the de- fendant, his heirs, executors or admin- istrators ; Id. 671, 672 — to recover further damages on Judgment for penalty ; Id. 660 — the like, upon of- ficial bonds, and the bonds of execu- tors and administrators ; Id. 1 62 — to make sureties of Sheriffs parties to an Amercement ; Id. 485 — against executors and administrators, sug- gesting Waste ; Id. 356 — in favor of bail, who have paid the Judgment ; Id. 879 ; and in various cases before Justices of the Peace . Where a levy is made on land and the Defendant and Sheriff both die, and afterwards, another^, fa. issues to the successor of the old Sheriff, and another levy is made after the death of the defend- ant, and the land is sold to the judg- ment creditor and satisfaction entered on the record — all these proceedings, after the first levy, are void, and may be set aside on Scire Facias, at the suit of the plaintiff in execution ; Arnolds. Filler's heirs, 1 Ohio Rep. 458. If, after suit brought, one in- dorses the writ, as security for costs, without any oi'der of the Court, a Sci. fa. hes not : Whether the party has any remedy — Queer e; Noble v. 356 SCIRE FACIAS. Writs of Scire Facias. debt or case, &c., at the suit of the said J. S. against I. N. — or, To revive a judgment of the Term of — in the Court of — A. D. — in favor of J. S. against I. N. for — dollars damages, and — dollars costs — or, (as the case may be) returnable at next Term. T. S. Att'y. for Pl'tff. To the Clerk of — Common Pleas. Dated, &c. Writs of Scire Facias. No. 1 . Scire Facias to Revive Judgment in Assumpsit.^ The State of Ohio, To the Sheriff of — County : Greeting. Whereas A. B. lately, to wit, on the — day of — , A. D. — , in our Court of Common Pleas within and for the County of — , by the judgment of the same Court, recovered against C. D. — dol- lars, for his damages which he had sustained by reason of the not performing certain promises and undertakings then lately made by Shearer, 6 Ohio Rep. 426. If the title to land sold on execution fails, after deed made and satisfaction en- tered ; the purchaser has no redress by Scire Facias ; Vattier v. Lytic' s executors, 6 Ohio Rep. 477. Where a judgment debtor dies, and his ad- ministrator makes a sale of real es- tate, but the sale is void for irregu- larity, the judgment creditor may proceed by Scire Facias against the heirs and purchasers in possession, and have execution against the lands ; Mi. Ex. Co. V. Halley's heirs, 7 Ohio Rep. 11, Part 1st. Where one of several judgment debtors dies, a Scire Facias Ues, under the Statute, jointly against the representatives of the deceased and the survivors ; and this, too, though the deceased was surety merely ; Zanesville Canal Co. Granger, v. 7 Ohio Rep. 165, Part 1st. On a general judgment of res- titution in Error, execution cannot be sued out without a Scire Facias ; 4 Ohio Rep. 374. (a) In a Scire Facias to revive a judgment it is unnecessary to aver specifically, that no execution has been issued for five years ; the Court will look at the date of the Scire Facias and of the judgment, and see whether the five years have elapsed or not; 6 Ohio Rep. 418; 11 do. 45. In a Scire Facias to revive a joint judgment in ejectment, against several defendants, the plaintifl^j it seems, cannot proceed, till all the de- fendants are before the Court, either by actual service, or by two nihils; 1 1 Ohio Rep. 45. It is not enough, in such Scire Facias, to recite, that a judgment was " lately " recovered, &c. ; it ought to appear, that the judgment had become dormant, by lapse of time or otherwise ; /(/. It seems, that a Scire Facias to revive a judgment, is only a continuation of the former suit, and is not an origin- al proccedmg ; 4 Ohio Rep. 397. SCIRE FACIAS. 357 Writs of Scire Facias. the said C. D. to the said A. B. ; and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. is convicted, as appears to us of record : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed, that although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied, yet execution of the darnages and costs aforesaid still remains to be made to him : wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf: And we being willing that what is just in this behalf should be done, command you that you make known to the said C. D. that he be before the Judges of our said Court of Common Pleas, on the first day of their next Term, to show, if he has or knows of any thing to say for himself, why the said A. B. ought not to have his ex- ecution against him, of the damages and costs aforesaid, according to the force, form and effect of the said recovery, if it shall seem expe- dient for him so to do ; and further to do and receive what our said Court shall then and there consider of him in this behalf; and have you then there this writ. Witness, F. C. Clerk of said Court of Common Pleas, at C, this — day of — , A. D. — . [Seal.] F. C. Clerk. No. 2. The like, in Debt. Commence as in No. I, Ante. 356, — recovered against the said C. D. a certain debt of — dollars, and also — dollars, whicii in the same Court were adjudged to the said A. B. for his damages whicli he had sustained by reason of the detention of the said debt, and al- so — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. is convicted, as appears to us of record : And now on the behalf of the said A. B. in our said Court, we have been informed that although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied, yet execution of the debt and damages, and costs aforesaid still remains to be made to him ; where- fore the said A. B. hath besought us to provide him a proper remedy in this behalf; And we being willing that what is just in this behalf should be done, command you that you make known to the said C. D. that he be before the Judges of our said Court of Common Pleas, on the first day of their next Term, to show, if he has or knows of any thing to say for himself, why the said A. B. ought not to have his execution against him, of the debt and damages and costs afore- said, according to the force, form and effect of the said recovery, &c. [Conclude as in the last Precedent. 358 SCIRE FACIAS. Writs of Scire Facias. No. 3. The like, in Covenant. Commence as in No. 1, Ante. 356, — recovered against C. D. — dollars, for his damages which he had sustained by reason of the breach of a certain covenant made between the said A. B. and C. D. ; and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. is convicted, &.c. No. 4. The like, in Case. — For his damages which he had sustained by reason of a certain grievance then lately committed by the said C. I), and, &c. No. 5. The like, in Replevin. — For his damages which he had sustained by reason of the wrongful detaining of the cattle, goods and chattels of the said C. D. and, &c. No. 6. The like, in Trespass. — For his damages which he had sustained by reason of certain trespasses then lately committed by the said C, D. and, &c. No. 7. The like, in Ejectment. Commence as in No. 1, Ante. 356. — Whereas A. B. lately, to wit, on the — day of — , A. D. — in our Court of Common Pleas within and for the said County of — by the judgment of the same Court recovered against C. D. his term yet to come of and in one messuage, &,c. [Describe the piremises as in the Declaration or Verdict,^ in your County, which E. F. on the — day of — , A. D. — had demised to the said A. B., to have and to hold the same to the said A. B. and his assigns, from the — day of — then last past, for and during and unto the full end and term of — years from thence next ensuing, and fully to be complete and ended ; by virtue of which said demise, the said A. B. entered into the tenements aforesaid, with the appurtenances, and was thereof possessed, until the said C. D. afterwards, to wit, on the — day of — in the — aforesaid, with force and arms, &c., entered into the tenements aforesaid with the appurtenances, which the said E. F. had demised to the said A. B. SCIRE FACIAS. 359 Writs of Scire Facias. in manner and for the term aforesaid, which is not yet expired, and ejected the said A. B. from his said farm ; and also — dollars, for the damages which the said A. B. had sustained by reason of the trespass and ejectment aforesaid ; and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. is convicted, as appears to us of record : And now on the part of the said A. B. in our said Court of Common Pleas, we have been informed, that although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, revers- ed, paid off, or satisfied, yet execution of that judgment still remains to be made to him ; wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf: And we being willing that what is just in this behalf should be done, command you that you make known to the said C. D. that he be before the Judges of our said Court of Common Pleas or\ the first day of theirnext Terrii, to show, if he has or knows of any thing to say for himself, (or if the judgment was against the casual ejector, or if the Scire Facias be against him, &c., the Sheriff should be commanded to make known to the said C. D. &c., and also to — and — the tenants of the ten- ements aforesaid, that they be, &c., to show, if they have or know, or if either of them hath or knoweth of any thing to say for themselves or himself,) why the said A. B. ought not to have the possession of his said term yet to come of and in the tenements aforesaid with the appurtenances, and also execution of the damages, costs and charges aforesaid, according, (Ssc. [Conclude as in No. 1, Ante. 356. No. 8. Scire Facias for a Surviving Flaintiff. "' Commence as in' No. 1, Ante. 356, — Whereas A. B. and C. D. lately, to wit, on the — day of — , A. D. — , in our Court of Com- mon Pleas within and for the said County of — , by the judg- ment of the same Court, recovered against E. F. — dollars, &c., whereof the said E. F. is convicted, as appears to us of record ; and afterwards, to wit, on, &c., at, &c., the said C. D. died, and the said A. B. then and there survived him, as by the information of the said A. B. in our said Court of Common Pleas we have been given to un- derstand : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed, that although judgment be thereupon given, which, &c. [as in No. 1, Ante. 356. No. 9. The like, against a Surviving Defendant. Commence as in No. 1, Ante. 356, — Whereas A. B. &c. — re- covered against C. D. and E. F. &,c. — whereof the said C. D. and 360 SCIRE FACIAS. Writs of Scire li'acias. E. F. are convicted, as appears to us of record ; and afterwards the said E. F. died, to wit, at, &c. and the said C. D. survived him, as by the information of the said A. B. in our said Court of Common Pleas we have been given to understand: And now on the behalf of the said A. B. in our said Court of Common Pleas we have been in- formed, that although judgment be thereupon given, &c. [as in No. 1, Ante. 356. The like, against a Surviving Defendant and the Administrator or Executor of a Deceased Defendant, jointly.' Commence as in No. 1, Ante. 356, — Whereas A. B. &c. — re- covered against C. D. and E. F. &.c. — whereof the said C. D. and E. F. are convicted, as appears to us of record ; and afterwards, the said C. D. died, having first duly made and published his last will and testament in writing, and thereby constituted and appointed J. S. ex- ecutor thereof; after whose death the said J. S. duly proved the said last will and testament of the said C, D. and took upon himself the burthen of the execution thereof, (or, if he died intestate, say, " the said C. D. died intestate, and the said E. F. then survived him,") and administration of all and singular the goods, chattels and credits which were of the said C. D. at the time of his death, by the Court of — was granted to J. S. in due form of law ; as by the information of the said A. B. in our said Court of Common Pleas we have been given to understand : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed that although judg- ment be thereupon given, which he avers still remains in full force and efiect, in no wise set aside, reversed, paid oft^, or satisfied, yet execution of the damages and costs aforesaid still remains to be made to him : Wherefore, &c. — We being willing, (fee. — do command you that you make known to the said E. F. and J. S. administrator as aforesaid, that they be before the Judges of our said Court of Com- mon Pleas on the first day of their next Term, to show, if they have or know, or either of them hath or knoweth, of any thing to say for themselves or himself, why the said A. B. ought not to have his exe- cution of the damages and costs aforesaid, as well against the said E. F. to be levied of his own proper goods and chattels, lands and ten- ements, as against the said J. S. to be levied of the goods and chat- (a) Where one of several judg-- and the survivors ; and this, loo, ment debtors dies, a SrAre Facias though the deceased was surety Ues under the Statute, jointly against merely ; Zanesvillc Canal Co. v. the representatives of the deceased Granger, 7 Ohio Rep, 165, Part 1st. SCIRE FACIAS. SGl Writs of Scire Facias. tels which were of the said C. D. at the time of his death, in the hands of the said E. F. to be administered according to the force, form and effect, &c. [as in No. 1, Ante. 356. No. 10. Scire Facias fo?- an Executor. Commence as in No. 1 Ante. 356, — Whereas A. B. lately, &c. — recovered, &.c. — whereof the said C. D. is convicted, as appears to us of record ; and afterwards, to wit, on, &c. the said A. B. died, having first duly made and published his last will and testament in writing, and thereby constituted and appointed E. F. executor there- of; after whose death the said E. F. duly proved the said last will and testament of the said A. B. and took upon himself the burthen of the execution thereof, as by the information of the said E. F. in our said Court of Common Pleas we have been given to understand : And now on the behalf of the said E. F. executor as aforesaid, in our said Court of Common Pleas, we have been informed that al- though judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off, or satis- fied, yet execution of the damages, or debt and damages, and costs aforesaid still remains to be made to him ; wherefore the said E. F. executor as aforesaid, has besought us to provide him a proper reme- dy in this behalf: And we being willing, &c. — command you, &,c. — to show, &c. — why the said E. F. executor as aforesaid, ought not to have, &c. [as in No. 1, Ante. 356. No. 11. The like, against an Executor. Commence as in No. 1, Ante. 356, — Whereas A. B. lately, &c., — recovered, etc., — whereof the said C. D. is convicted, as ap- pears to us of record ; and afterwards the said C. D. died, &c., [as in the last Form to the ivords "execution thereof"] ; as by the in- formation of the said A. B. in our said Court of Common Pleas we have been given to understand : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed that, although judgment be thereupon given, which he avers still re- mains in full force and effect, in no wise set aside, reversed, paid off or satisfied, yet execution of the damages and costs, (or, debt and damages and costs') aforesaid, still remaining to be made to him ; wherefore, &c., — And we being wiUing, &c., — command you, &c., — to make known to the said E. F. executor as aforesaid, that he be before, &c., to show, &c., why the said A. B. ought not to have his execution against him, of the damages, &.c., to be levied of the 46 362 SCIRE FACIAS. Writs of Scire Facias. goods and chattels which were of the said C. D. at the time of his death, in the hands of the said E. F. to be administered, according to the force, &c., [as in No. 1, Ante. 356. No. 12. The like, for an Administrator:^ Commence as in No. 1, Ante. 356 — Whereas A. B. lately, &,c., — recovered against C. D. &.C., — whereof the said C. D. is con- victed, as appears to us of record ; and afterwards, to wit, on, &c., at, &c., the said A. B. died intestate ; after whose death administra- tion of all and singular the goods, chattels and credits which were of the said A. B. at the time of his death, in due form of law, was granted to E. F. as by the information of the said E. F. in our said Court of Common Pleas we have been given to understand : And now on the behalf of the said E. F. in our said Court of Common Pleas, we have been informed that, although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off or satisfied, yet execution of the damages and costs, (or, debt and damages and costs) aforesaid still remains to be made to him ; wherefore the said E. F., administrator as aforesaid, hath besought us to provide him a proper remedy in this behalf : And we being willing, &-c. No. 13. The like, against an Administrator. Commence as in No. 1, Ante. 356, — Whereas A. B. lately, &c., — recovered against C. D., &c., — whereof the said C. D. is convicted, as appears to us of record : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been inform- ed, that although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off or satisfied, yet execution of the damages and costs (or debt and damages and costs) aforesaid, still remains to be made to him ; and the said C. D. is since dead intestate ; and administration, &c., [as in the last Form to the ivords " was granted to E. F."] as by tiie information of the said A. B. in our said Court of Common Pleas we have been given to understand ; Wherefore, &c. ; And we being willing, &,c., command you, &c., — to show, &c., — why the said A. B. ought not to have his execution against him, of the damages (a) Where letters of administration removed administrator, to revive a are revoked, and an administrator de judgment obtained by him while in bonis non appointed, a Scire Facias office ; Weaver v. Reese, 6 Ohio cannot be sued in the name of the Rep. 418. SCIRE FACIAS. 3(33 Writs of Scire Facias. and costs (or debt and damages and costs) aforesaid, to'be levied of the goods and chattels which were of the said C. D. at the time of his death, in the hands of the said E. F. to be administered, accord- ing to the force, &c. [as in No. 1, Ante. 356. Scire Facias, after a former Revival. Commence as in No. ] , Ante. 356, — Whereas A. B. lately, &c., — recovered, &c., — (stating the Judgment,) whereof the said C. D. is convicted, as appears to us of record ; and whereupon it was afterwards, considered in our said Court of Common Pleas at the — Term thereof A. D. — that the said A. B. should have his execution against the said C. D. of the damages and costs (or debt and damages and costs) aforesaid, according to the force, form and effect of the said recovery, as also appears to us of record ; And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed that although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off or satisfied, and execution awarded in form aforesaid, yet execution of the damages and costs aforesaid still re- mains to be made to him ; wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf: And we being willing, &c., command you, &c., — to show, &c., — why the said A. B. ought not to have his execution against him, of the damages and costs aforesaid, according to the force, form and effect of the said recovery, and award of execution, if it shall seem expedient, &-c. [as in No. 1, Ante. 356. No. 14. Scire Facias, suggesting Further Breaches after Judg- ment for Penalty. The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. heretofore, to wit, on the — day of — A. D. — in our Court of Common Pleas within and for the County of — by the judgment of the same Court, recovered against C. D. a cer- tain debt of — dollars, and also — dollars for his damages which he had sustained by reason of the detaining of that debt, and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. was convicted, as by the record 364 SCIRE FACIAS. Writs of Scire Facias. and proceedings thereof, remaining in our Court of Common Pleas aforesaid manifestly appears ; And afterwards, at this day, to wit, on the — day of — A. D. — (date of the writ) the said A. B. by E. F., his attorney, comes into our said Court here, and according to the form of the Statute in such case made and provided, gives the same Court here to understand and be informed, that the said debt so by him recovered as aforesaid, and which he avers still remains in full force and effect, in no wise set aside, reversed, paid off or satis- fied, was and is a certain penal sum of — dollars mentioned in a certain writing obligatory made the — day of — A. D. — at — , &c., sealed with the seal of the said C. D. and bearing date the day and year last aforesaid, and which the said A. B. now brings here into Court, by which said writing obligatory, reciting, &c., it is provided, &c., [setting forth so much of the condition as is necessary for assigning the fwther breaches,^ And the said A. B. also gives our said Court here to understand and be informed, that the writ of him the said A. B. in the said action, in which he so obtained such judg- ment as aforesaid, was sued out of the office of the Clerk of the Court aforesaid on the — day of — A. D. — ; and that the said action was brought and commenced upon and for a certain breach of the condition of the said writing obligatory by the said C. D. before the suing out of the writ aforesaid : But the said A. B. for further and other breaches of the condition of the said writing obligatory, according to the form of the Statute in such case made and provided, gives our said Court here to understand and be informed, &c., [as- signing further breaches, See Debt, Ante. 197,] which said seve- ral breaches of the condition of said writing obligatory so assigned, the said A. B. doth aver and give our said Court here to understand and be informed, are further and other breaches than the breaches for and by reason of which he obtained the said judgment so by him recovered as aforesaid ; and for which said further and other breaches, he hath besought us to provide him a proper remedy : And we being willing that what is just in this behalf should be done, do, according to the form of the Statute in such case made and provided, command you that you make known to the said C. D. that he be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show cause why execution should not be had and awarded against him, upon the said judgment so obtained as afore- said, for damages which the said A. B. hath sustained, by reason of the said further and other breaches of the condition of the said wri- ting obligatory, if it shall seem expedient for him so to do ; and fur- ther to do, &c., \as in No. 1, Ante. 356. SCIRE FACIAS. 365 Writs of Scire Facias. The like, on Official Bonds. ^ The State of Ohio, To the Sheriff of — County, Greeting : Whereas John Stiles, heretofore, to wit, on the day of A. D. — in our Court of Common Pleas within and for the county of — by the judgment of the same Court, recovered against C. D. a certain debt of — dollars, and also, — dollars for his dama'j-es which he had sustained by reason of the detaining of that debt, and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. was convicted, as by the record and proceedings thereof remaining in our Court of Common Pleas aforesaid manifestly appears : And afterwards, to wit, on the — day of — A. D. — (date of the Scire Facias) Thomas Nokes, by E. F. his attorney, comes into our said Court here, and accordinc^ to the form of the Statute in such case made and provided, gives the same Court here to understand and be informed, that the said debt so by the said John Stiles recovered as aforesaid, and which he avers still remains in full force and effect, in no wise set aside, rever- sed, paid off or satisfied, was and is a certain penal sum of dol- lars mentioned in a certain waiting obligatory made the — day of A. D. — at — sealed with the seal of the said C. D. and bearino- date the day and year last aforesaid, a certified copy whereof the said Thomas Nokes now brings here into Court, by which said writing obligatory, reciting, &.C., it is provided, &,c,, [setting out so much of the condition as is necessary for assigning the fuj'ther breaches 1 and the said Thomas Nokes also gives our said Court here to under- stand and be informed, that the writ of him the said John Stiles in the said action against the said C. D., in which he obtained such judgment as aforesaid, was sued out of the office of the Clerk of the Court aforesaid on the — day of — A. D. — ; and that the said action was brought and commenced upon and for a certain breach of the condition of the said writing obligatory by the said C. D. before the suing out of the writ aforesaid by the said John Stiles : And the said Thomas Nokes for further and other breaches of the condition of the said writing obligatory, according to the form of the Statute in such case made and provided, gives our said Court here to under- stand and be informed, &c., [assigning further breaches, See Debt, (a) Any person injured by the ment for the penalty ; and any other misconduct of an executor, adminis- person injured may afterwards sue trator, or other officer, may put his out a Scire Facias upon the judg- official bond in suit, and recover judg- ment; Swan's StaL 162. 366 SCIRE FACIAS. Write of Scire Facias. Ante. 197,] which said several breaches of the conditions of said writing obhgatory so assigned, the said Thomas Nokes doth aver and give our said Court here to understand and be informed, are further and other breaches than the breaches for and by reason of which the said John Stiles obtained the said judgment so by him recovered as aforesaid : And for which said further and other breaches the said Thomas Nokes hath besought us to provide him also a proper rem- edy : And we being willing, &c., [ Conclude as in the last Form, using the name " Thomas Nokes,'' instead of " A. J5."] No. 15. Scire Facias after a Judgment of the Common Pleas af- firmed in the Supreme Court and Mandate sent down. Commence as in No. 1, Ante. 356, — Whereas A. B. lately, &c. — recovered, dsc. — [stating the original Judgment] : whereof the said C. D. is convicted, as by the inspection of the record and pro- ceedings thereof, which we lately caused to be brought into our Su- preme Court within and for the said County of — by virtue of our certain writ of error prosecuted by the said C. D. of and upon the premises, and which now remains in our said Supreme Court in all things affirmed, appears to us of record ; and also — dollars which in our said Supreme Court afterwards, to wit, at the — Term thereof, A. D. — were adjudged to the said A. B. according to the Statute in such case made and provided, for his damages, costs and charges which he had sustained by reason of the delay of execution of the judgment aforesaid, on pretence of prosecuting our said writ of error, by the said C. D., whereof the said C. D. is also convicted as appears to us of record ; and whereas for having execution of the judgment afore- said, our special Mandate was sent down by our Supreme Court afore said, to our said Court of Common Pleas, according to the form of the Statute in such case made and provided, as also appears to us of rec- ord : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed, that although judgment be thereupon given and affirmed, and a mandate sent down in form aforesaid, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied, yet execution of that judgment still remains to be made to him ; wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf: And we being wilHng, &,c. — command you, &c. — to show, &c. — why the said A. B. ought not to have his execution against him, of the damages, costs and charges aforesaid, according to the force, form and effect of the recovery and adjudication aforesaid, if it shall seem, &,c. [as in No. 1, Ante. 356. SCIRE FACIAS. 367 Writs of Scire Facias. No. 16. Scire Facias to make Defendants not served with Orig- inal Process parties to the Judgment. The State of Ohio, To the Sheriflf of the County, of — * Greeting : Whereas A. B. lately, in our Court of Common Pleas within and for the said County of — , to wit, at the — Term thereof, A. D, — , by our certain writ of Summons, impleaded C. D., E. F. and G. H. in a plea of trespass on the case, &c. [or as the plea is] declaring in the same plea against them, (the Sheriff having returned the said writ of Summons, Not found as to the said E. F. and G. H.); For that whereas, &-c. [here recite the declaration,] to the damage of the said A. B. of — dollars, as he said, and therefore he brought his suit, &,c. : And such proceedings were thereupon had, in our said Court of Common Pleas, that afterwards, to wit, on — the said A. B. by the judgment of the same Court, recovered against the said C. D. — dollars, for his damages on occasion of the premises, and — dollars for his costs and charges by him about his suit in that behalf expen- ded, as to us appears of record ; And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed that the said judgment thereupon given, in form aforesaid, still remains in full force and effect, in no wise set aside, reversed, paid off, or sat- isfied ; wherefore the said A. B. hath besought us to provide him a proper remedy against the said E. F. and G. H. in this behalf: And we being willing that what is just in this behalf should be done, com- mand you that you make known to the said E. F. and G. H. that they and each of them be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show, if they have or know, or if either of them hath or knoweth of any thing to say for themselves, or himself, why they and each of them should not be made parties defendants to the judgment aforesaid, and why exe- cution should not issue thereupon against them and each of them, according to the Statute in such case made and provided ; if it shall seem expedient for him so to do ; and further to do, «fcc. \as in No. I, Ante. 356. (a) The County where the defendants to be made parties reside ; Sivan's Stat. 658. 368 SCIRE FACIAS. Writs of Scire Facias. The like, to make the Sureties of a Sheriff parties to a judgment of Amercement. The State of Ohio, To the Coroner of — County, Greeting : Whereas lately, in our Court of Common Pleas within and for the County of — , to wit, at the — Term thereof, A. D. — , A. B. by his certain motion then made to the same Court, impleaded C. D. late Sheriff of the County of — , For that the said C. D. Sheriff as afore- said, refused, &c. [setting forth the charges against the Sheriff,] and such proceedings were thereupon had, in our said Court of Com- mon Pleas, that afterwards, to wit, on — the said A. B. by the con- sideration of the same Court, recovered against the said C. D. Sherift' as aforesaid, a judgment of amercement, for — dollars debt, and — dollars damages, and — dollars penalty, together with — dollars, his costs in that behalf expended, according to the Statute in such case made and provided, as to us appears of record : And afterwards, ^ to wit, on the — day of — , A. D. — (date of the Scire Facias,) the said A. B. by S. his attorney, comes into our said Court here, and ac- cording to the form of the Statute in such case made and provided, gives the same Court here to understand and be informed, that the said C. D. as principal, and E. F. and G. H. as his sureties, by their certain writing obligatory made the — day of — , A. D. — . sealed with their seals and bearing date the day and year last aforesaid, a certified copy whereof the said A. B. now brings here into Court, by which said writing obligatory, reciting, &c., it is provided, &,c., [set- ting out the condition,] and the said A. B. also gives our said Court here to understand and be informed that the said judgment of amerce- ment in form aforesaid given still remains, &.c. ; Wherefore, &-c. [ Conclude as in the last Form. The like, to make per sons, jointly liable, Parties to a Judgment con- fessed.'^ The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, at the — Term of our Court of Common Pleas within and for the said County of — , came into our (a) Swan's Stat. 658. SCIRE FACIAS. ^69 Writs of Scire Facias. said Court, and without process, impleaded C. D. in a plea of As- sumpsit, Slc. [07' as the plea is] ; declaring in the same plea against him ; For that whereas, &c. [here recite the declaration] ; to the damage of the said A. B. of — dollars, as he said, and therefore he complained, &c. : And thereupon the said C. D. afterwards, to wit, on the — day of — , A. D. — appeared in our said Court, without process, and said he could not deny but that he did assume and prom- ise, in manner and form, as the said A. B. had complained against him, and confessed that the said A. B. had sustained damages by rea- son of the premises to — dollars ; and afterwards, to wit, on the same day and year last aforesaid, by the judgment of the same Court, the said A. B. recovered against the said C. D. the said sum of dollars, his damages, so confessed by him as aforesaid, and also — dollars, for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. was convicted, as by the record and proceedings thereof, remaining in our Court of Common Pleas aforesaid manifestly appears : And now at this day, to wit, on the — day of — , A. D. — , [date of the Scire Facias,] the said A. B. by E. F. his attorney, comes into our said Court of Common Pleas, and according to the Form of the Statute in such case made and provi- ded, gives the same Court here to understand and be informed, that the said damages so by him recovered as aforesaid was and is a cer- tain sum of — dollars, and interest thereon, mentioned in a certain promissory note bearing date the — day of — , A. D. — , for the sum of — dollars, payable to the said A. B. or order, in — days af- ter date, which period had then elapsed, and executed by the said C. D. jointly [or jointly and severally] with J. S. and J. N. ; And the said A. B. also gives our said Court here to understand and be in- formed, that the said judgment thereupon given, in form aforesaid, still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied ; Wherefore the said A. B. hath besought us to provide him a proper remedy against the said J. S. and J. N. in this behalf, &-c. [Conclude as in No. 16, Ante. 367. TJie like, to make per s oris, jointly liable, Parties to a Judgment in the Common Pleas on Appeal from a Justice of the Peace.^ The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, on — before S. S., Esquire, a Jus- tice of the Peace within and for the County of — recovered a cer- (a) Sivcm's Stat. 658. 47 370 SCIRE FACIAS. Writs of Scire Facias. tain judgment against C. D. for the sum of — dollars damages, and — dollars, costs of suit, from which judgment the said C. D. took an appeal to our Court of Common Pleas within and for the County aforesaid ; and afterwards the said A. B. in the same Court complain- ed against the said C. D. in a certain plea of assuinpsit ; For that whereas. &.c. [here recite the declaration] ; to the damage of the said A. B. of — dollars, as lie said ; and therefore he brought his suit, &c. ; And such proceedings were thereupon had, in our said Court of Common Pleas, that afterwards, to wit, on — the said A. B. by the judgment of the same Court, recovered against the said C. D. — dollars damages, on occasion of the premises, and — dollars, for his costs and charges by him about his suit in that behalf expended, as to us appears of record ; And now, &.c. [Conclude as in the last Form, No. 17. Scire Facias, By a Surviving Plaintiff against the Administrator of a joint defendant who died pending the suit.' The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. and C. D. lately in our Court of Common Pleas within and for the county of — to wit, at the — Term thereof A. D. — by our certain writ of Summons, impleaded E. F., G. H. and J. S. in a plea of trespass on the case, &c., [or as the plea is,] de- claring in the same plea against them ; For that whereas, &c., [Here recite the declaration,] to the damage of the said A. B. and C. D. of — dollars, as they said ; and therefore they brought their suit, &-c., and afterwards, and before plea pleaded, the said C. D. died, and the said A. B. survived him, to wit, on, &.C., whose death afterwards, at the — Term of said Court, A. D. — , was suggested on the rec- fa) Swa7i's Stat. G69, § 80. show a breach of the condition ; 5 Wliere, in an action on a bond against Ohio Hep. 340. In such case, non four defendants, one of them dies, est factum does not tender an imma- and the suit proceeds to judgment terialissue: but whether, under the against the survivors ; in a Scire Fa- notice attached to that plea, the de- cias to make the representative of the fendant can give in evidence matters deceased a party, it is sufficient to that transpired before the commence- set forth the substance of the bond ; mentof thesuit — Qiixre. ; lb. But and under the plea of ?ioncsf/ac/w7W, in such case damages are not to be with notice of special matter, it is assessed anew : They are to be con- not necessary for the plaintiff to pro- sidered as liquidated in the original duce the record of the judgment, or action ; lb. SCIRE FACIAS. 371 Writs of Scire Facias. ords of the same Court, in due form of law, and thereupon the said E. F,, G. H. and J. S., pleaded in bar of the action aforesaid : That, &€., [Here recite the />/ea,] and of this they put themselves upon the country, &c. ; and afterwards, and before the trial of the issue joined between the parties, the said J. S. died intestate, leaving the said E. F. and G. H., his survivors, and administration of all and singular the goods, chattels and credits which were of the said J. S. at the time of his death, by the Court of — was granted to W. S. in due form of law, as by the information of the said A. B., in our Court of Common Pleas aforesaid, we have been given to understand ; and afterwards, at the — Term of said Court, A. D. — the death of the said J. S. was suggested on the records of the same Court, in due form of law ; and thereupon, at the same Term of the Court aforesaid, and by the judgment of the same Court, the said A. B. survivor as aforesaid, recovered against the said E. F. and G. H., survivors as aforesaid, — dollars for his damages, on occasion of the premises, and — dollars for his costs and charges by him about his suit in that behalf expended ; as to us appears of record : And now on the behalf of the said A. B., survivor as aforesaid, in our said Court of Common Pleas, we have been informed, that the said judg- ment tiiereupon given, in form aforesaid, still remains in full force and effect, in no wise set aside, reversed, paid off or satisfied : where- upon the said A. B., survivor as aforesaid, hath besought us to pro- vide him a remedy against the said W. S., administrator of the said J. S. in this behalf: And we being willing, &c., [as in No. 13, Ante. 362, iising the words " survivor" and "survivors."] No. IS. Scii'e Facias by baron and feme on a judgment recov- ered by the feme dum sola. [Commence as in No. 1, Ante. 356, — Whereas A. B. lately, &c., — recovered, &c., — whereof the said C. D, is convicted, as appears to us of record ; and afterwards, to wit, on, &c., at, &c., the said A. B. intermarried with and took to husband E. F. as by the information of the said E.F. and A. his wife, in our said Court of Common Pleas, we have been given to understand ; And now on the behalf of the said E. F. and A. his wife, we have been informed, that although judgment be thereupon given, which they aver still remains in full ^force and effect, in no wise set aside, paid off or satisfied : yet exe- cution of the damages and costs aforesaid still remains to be made to them: Wherefore, &c., [as in No. I, Ante. 356.] 372 SCIRE FACIAS. Writs of Scire Facias. No. 19. The like, against baron and feme upon a judgment recovered against the feme dum sola. [Commence as in No. 1, Ante. 356, — Whereas A. B. lately, &,c., — recovered, &c., — against C. D., &c., — whereof llie said C. D. is convicted, as appears to us of record ; and afterwards, the said C. D. intermarried with and took to husband E. F. ; And now on the behalf of the said A. B., &c., [as in last Form.] No. 20. Scire Facias against Special Bail.'' The State of Ohio, To the Sheriff of — County, Greeting : Whereas E. F. and G. H. heretofore, to wit, on — in their own proper persons appeared before, &c., [naming the Officer ivho took the bail,] and severally acknowledged themselves to owe unto A. B. the sum of — dollars upon the condition that if C. D. should happen to be convicted, at the suit of the said A. B., in a certain action of Assumpsit, then lately commenced and depending in the same Court, by and at the suit of the said A. B. against the said C. D., (a) See Declarations in Debt, An- te. 235. Special Bail are not liable where the principal dies after the re- turn of the ca. sa. non est, and before the return of the first sci. fa. executed, or second, nihil ; Bank of Mt. Pleas- ant V. Pollock, 1 Ohio Rep. 35. On attachment for contempt, the Sheriff" may take Bail ; Alorris v. Marcy, 4 Ohio Rep. 83. In debt on record, the Court, after suit brought, may or- der special Bail to be given ; and this may be done Avithout any affidavit ; Headly v. Jioby, Ohio Rep, 521. Where appearance Bail is given, the plaintiff waives his bond by accept- ing a plea and taking judgment, no special Bail being entered ; Candce V. Xclscy, 7 Ohio Rep. 210, Part 2d. Nice objections to an affidavit for Bail, such as, Brazilla, instead of Barzillai, in the name of the party, and J. P. for Justice of the Peace, are to be received with circumspec- tion, and if not made on the return of the process, they will not be listened to at all ; Smith v. Madison, 7 Ohio Rep. 236, Part 2d. After the plain- tiff rules the Sheriff to bring in the body he cannot proceed on the Bail bond ; Valentine v. Smith, 8 Ohio Rep. 20. "In or about the sum of $4,930," in an affidavit to hold to Bail is not sufficiently certain ; IJcrf V. Shiilze, 10 Ohio Rep. 2G3. The act of March 19,1838, abolishing Impris- onment for Debt, operates to discharge a recognizance of Bail, entered into before the act took effect ; l^oiisey v. Avery, 1 1 Ohio Rep. 90. Bail are not chargeable until after execution against appellant ; 15 Ohio Rep. 471. SCIRE FACIAS. 373 Writs of Scire Facias. then he the said C. D. should pay the costs and condemnation of the Court or be rendered or render himself into the custody of the Sheriff of said county, for the same, or in case of failure, then the said E. F. and G. H. should pay the costs and condemnation aforesaid for the said C. D., as by the record of the said recognizance still remaining in our said Court of Common Pleas more fully appears : And although the said A. B. afterwards, to wit, on — in our said Court of Common Pleas, and by the judgment of the same Court, recovered in the action aforesaid against the said C. D., — dollars for his damages by reason of the not performing certain promises and undertakings then lately made by the said C. D. to the said A. B., and also — dollars for his costs and charges by him about his suit in that behalf expend- ed ; whereof the said C. D. is convicted, as by the record and pro- ceedings thereof still remaining in our said Court of Common Pleas more fully appears ; yet the said C. D. hath not paid or satisfied the said damages and costs or any part thereof, to the said A. B., or rendered himself, nor hath been rendered, into the custody of the Sheriff of said county, for the same, according to the form and effect of the said recognizance ; and as well the said recognizance, as the said judgment, still remain in full force and effect, in no wise set aside, reversed, paid off or satisfied ; as we have received information from the said A. B. in our Court of Common Pleas aforesaid ; [here aver the issuing of execution as in No. 29, Ante. 235] where- fore the said A. B. hath besought us to provide him a proper remedy in this behalf; and we being willing that what is just in this behalf should be done, command you that you make known to the said E. F. and G. H. that they be before the Judges of the said Court of Common Pleas on the first day of their next Term to show, if they have or know, or if either of them hath or knoweth, of any thing to say for themselves, or himself, why the said A. B. ought not to have execution against the said E. F. and G. H. for the damages and costs aforesaid, according to the force, form and effect of the said recognizance, if it shall seem expedient, &,c., [as in No. 1, Ante. 356.] No. 21. Scire Facias to subject Real Estate to the payment of a The State of Ohio, Justice^s Judgment.^ To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, on — before S. S., Esquire, a Justice (a) A Scire Facias cannot issue justice of the peace, unless the justi- from the Common Pleas to subject ce's transcript shows that an execu- lands to sale on the judgment of a tionwas returned, "no goods," and- 374 SCIRE FACIAS. Writs of Scire Facias. of the Peace within and for the County of — recovered a certain judgment against C. D. for the sum of — dollars damages and — dollars costs of suit ; and the said C. D. issued an execution upon the said judgment, in due form of law ; and the same was returned, No goods found whereon to levy ; and afterwards it was suggested to the said S. S. Esquire, Justice of the Peace as aforesaid, that the said C, D. is possessed of lands and tenements ; as by the inspection of a transcript of the record and proceedings thereof lately filed in our said Court of Common Pleas, appears to us of record : And now on the behalf of the said A. B. in our said Court of Common Pleas, we have been informed, that the said judgment thereupon given, in form aforesaid, still remains in full force and effect, in no wise set aside, reversed, paid off or satisfied, and that execution still re- mains to be made to him thereupon of the goods and chattels, lands and tenements of the said C. D., wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf: And we being wilhng that what is just in this behalf should be done, command you that you make known to the said C. D. to be before the Judges of our said Court of Common Pleas on — to show, if he has or knows of any thing to say for himself, why execution ought not to issue against his goods and chattels, lands and tenements, to satisfy said judgment, and costs ; if it sliall seem expedient, &c., [as in No. 1, Ante. 356.] No. 22. Scire Facias by Sui'eties wlio have paid the Debt, against the Frincijtal.^ The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, on the — day of — , A. D. — , in our Court of Common Pleas within and for the said County of — . by the judgment of the same Court, recovered against C. D., a sug^^cslion made that the defendant on the defendant to plead, at the re- owned lands ; Edmislon v. Edmis- turn term of the Scire Facias : The ton, 2 Ohio Rep. 251. Nor can it return of the Constable cannot be in- issue to another county ; Wright, quired into — His return is matter of 442. On a Scire Facias to subject record and conclusive between par- real estate to a justice's judgment, it ties and privies ; Hill v. Fling, 4 need not appear that the constable Ohio Rep. 135. retained the execution in his hands 30 days : Execution in such case (a) Swa)i's Slat. 879. •may be awarded without taking a rule SCIRE FACIAS. 375 Writs of Scire Facias. E. F. — dollars, for his damages which he had sustained by reason of the not performing certain promises and undertakings then lately made to the said A. B. by the said C. D. and E. F. ; and also ■ — dol- lars for his costs and charges by him about his suit in that behalf ex- pended ; whereof the said C. D. and E. F. were convicted, as to us appears of record : And whereas for having execution of the judg- ment aforesaid, we lately by our writ commanded our Sheriff of the said County of — , that of the goods and chattels, and for want there- of, of the lands and tenements of the said C. D. and E. F. he should cause to be made the damages and costs aforesaid, with interest there- on and costs of increase ; and that he should have that money, &,c., [as in the Execution] ; And our said Sheriff of — on — returned to us that by virtue of the said writ to him directed he had caused to be made of the goods and chattels of E. F. the damages and costs aforesaid, which money he had ready before the Judges of our said Court of Common Pleas at the day and place in the said writ men- tioned, to render to the said A. B. in satisfaction of the damages, in- terest and costs aforesaid : And now at this day, to wit, [the date of the Scii'e Facias,] the said E. F. comes here into our said Court of Common Pleas, and according to the form of the Statute in such case made and provided, gives the same Court here to understand and be informed, that the said damages so by the said A. B. recovered as aforesaid was and is a certain sum of — dollars, and interest thereon, mentioned in a certain promissory note bearing date the — day of — , A. D. — , for the sum of — dollars, payable to the said A. B. or order, in — days after date, and executed by the said C. D. as prin- cipal, and the said E. F. as his surety ; And the said E. F. also gives our said Court here to understand and be informed that although he has been compelled in manner aforesaid to pay the said damages, in- terest and costs, as surety of the said C. D., yet he the said E. F, still remains unpaid and unsatisfied thereof by the said C. D.; where- fore the said E. F. hath besought us to furnish him a proper remedy in this behalf; And we being willing that what is right in this behalf should be done, command you to make known to the said C. D. to be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show, if he has or knows of any thing to say for himself, why the said E. F. ought not to have his execu- tion against him of the damages, interest, and costs aforesaid, ac- cording to the form, force, &-c. [Conclude as in No. I, Ante. 356, 376 SCIRE FACIAS. Writs of Scire Facias. No. 23. Scire Facias against an Administrator- suggesting a Devastavit.'^ The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, on the — day of — , A. D. — , in our Court of Common Pleas within and for the said County of — , by the judgment of the same Court, recovered against C. D. ad- ministrator of E. F. deceased, — dollars for his damages wOiich he had sustained by reason of the not performing certain promises and un- dertakings then lately made by the said E. F. to the said A. B., and also — dollars for his costs and charges by him about his suit in that behalf expended ; whereof the said C. D. as administrator as aforesaid was convicted, as appears to us of record : And whereas for having exe- cution of the judgment aforesaid, we lately by our writ commanded our Sheriff of — County, that of the goods and chattels which were of the said E. F. at the time of his death, in the hands of the said C. D. to be administered, he should cause to be made the damages and costs aforesaid, with interest thereon and costs of increase ; and that he should have that money, &c., [as in the Execution] ; And our said Sheriff of — on — returned to us that by virtue of the said writ to him directed, he had caused to be made of the goods and chattels which were of the said E. F. at the time of his death, in the hands of the said C. D. to be administered, the sum of — dollars, parcel of the damages and costs aforesaid, which money he had rea- dy before the Judges of our said Court of Common Pleas at the day and place in the said writ mentioned, to render to the said A. B. in part satisfaction of his damages and costs aforesaid ; and that no other or more goods or chattels which were of the said E. F. in his life time could be found in the hands of the said C. D. unadminis- tered, whereof he could cause to be made tlie residue of the dama- ges and costs aforesaid, or any part thereof, [or that no goods, ^c, could be found, as the fact may be] ; And although judgment be thereupon given, which he avers still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied, yet execution for — dollars, being the residue of the damages and costs aforesaid, still remains to be made ; And now on this day, to wit, on — (the date of the Scire Facias,) in behalf of the said A. B. in our said Court of Common Pleas, we have been informed that at the time of the award of the said execution as aforesaid, to wit, on — at — , divers goods (a) Sloan's Siat. 356. SCIRE FACIAS. 377 Writs of Scire Facias. and chattels which were of the said E. F. at the time of his death, of great vahie, to wit, of the value of the damages and costs aforesaid, in form aforesaid recovered, had come to the hands of the said C. D. administrator as aforesaid, to be administered, and which said goods and chattels the said C. D. administrator^ as aforesaid, afterwards, to wit, on the same day and year last aforesaid, at, &c. aforesaid, eloigned,* wasted, and converted and disposed of to his own use ; Wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf ; and we being willing that what is just in this behalf should be done, command you that you make known to the said C. D. to be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show, if he has or knows of any thing to say for himself, why the said A. B. ought not to have execution against him of the damages and costs aforesaid, to be levied of his own proper goods and chattels, according to the Stat- ute in such case made and provided ; if it shall seem expedient, &-c. {Conclude as in No. 1, Ante. 356. No. 24. Scire Facias against Heirs and Tertenants, The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, to wit, &.c. — recovered against C. D. &.c. [stating the Judgment as in No. 1, Ante. 356] ; whereof the said C. D. was convicted, as appears to us of record ; And although judg- ment be thereupon given, yet execution of the damages and costs aforesaid still remains to be made to the said A. B. ; and after the giving of the said judgment, to wit, on — at — the said C. D. died intestate, seized in/ee simple of certain lands and tenements, to wit, [here set out the metes and hounds,^^ whereof E. F. and G. H. are (a) As to this averment See 1 the material facts essential to the 'Saiind, 307. right to proceed against the particu- lar lands sought to be charged ; lb. (b) A Scire Facias against the Where a judgment debtor dies, and heir, to subject the real estate of the his administrator makes a sale of real Ancestor, should set out the lands to estate, but the sale is void for irregu- be charged specifically ; 6^moni5a;2A: larity, the judgment creditor may of Georgetown v. The Heirs of proceed by Scire Facias against the Meigs, 5 Ohio Rep. 312. In such heirs and purchasers in possession, cases, it is the better practice, itseems, and have execution against the lands; to suggest in the writ what lands are Mi. Ex. Co. v. Halley's Heirs, 7 descended, who holds them, and all Ohio Rep. 11, Part 1st. 48 378 SCIRE FACIAS. Writs of Scire Facias. tenants; and leaving A. D. and B. D. his heirs at law, him surviving, and to whom tlie lands and tenements aforesaid descended ; and ad- ministration of all and singular the goods, chattels and credits which were of the said C. D. at the time of his death, by the Court of — was granted to J. S. in due form of law ; and the said J. S. after- wards closed and settled up his accounts as administrator as aforesaid, with the said Court of — ; so that in his hands nothing now remains of the goods, chattels or credits which were of the said C. D. at the time of his death ;* and the said judgment still remains in full force and effect, in no wise set aside, reversed, paid off, or satisfied ;'' as we have received information from the said A. B. in our Court of Common Pleas aforesaid ; wherefore the said A. B. hath besought us to provide him a proper remedy in this behalf; And we being willing that what is just in this behalf should be done, command you that you make known to the said heirs at law of the said C. D., and also to the said tenants of the tenements aforesaid, that they be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show, if they have or know of any thing to say for themselves, why the damages and costs aforesaid ought not be levied of those lands and tenements, according to the force, form and effect of the recovery aforesaid ; if it shall seem expedient, &c. [Conclude as in No. 1, Ante. 356. No. 25. Scire Facias quare Restitutionem non, after Reversal and Mandate sent down to the Common Pleas. The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately impleaded C. D. in our Court of Common Pleas within and for the said County of — in a certain plea of tres- pass, [or as the case may be] and such proceedings were thereupon had in our said Court of Common Pleas, that afterwards by the con- sideration and judgment of the same Court, the said A. B. recovered (a) It is necessary to aver that the a Scire Facias is the proper remedy personal estate in the hands of the for a creditor where lands have been administrator has been exhausted; 2 sold by the heir, See 15 Ohio Rep. Ohio Rep. 2^10; 4 do. S97 ; 5 do. 301. 512 ; or, that there are no personal representations ; or, if any, that they (b) It must appear that the judg- have closed their accounts with the ment is in force and unsatisfied ; 2 Court ; 8 Ohio Rep. 209. See Ohio Rep. 246. Swan's Stat. 672, § 102. Whether SCIRE FACIAS. 379 Writs of Scire Facias. against the said C. D. in that plea — dollars for his damages, which he had sustained by reason of certain trespasses alleged to have been committed by the said C. D. and also — dollars, for his costs and charges by him about his suit in that behalf expended ; and thereupon afterwards the said C. D. brought and prosecuted our certain writ of Error in our Supreme Court within and for the said County of — for the reversal of the said judgment ; and such proceedings were there- upon had in said Supreme Court, that it was considered by the same Court that the judgment aforesaid, for certain errors therein by the said C. D. assigned, and for other errors in the record and proceed- ings being, should be reversed, annulled, and altogether holden for nought, and that the said C. D. should be restored to all things which he had lost by occasion of the said judgment, and recover his costs and charges by him about his suit in that behalf expended ; and whereas for having execution of the judgment aforesaid our certain mandate was sent down by our Supreme Court aforesaid to our said Court of Common Pleas, according to the form of the Statute in such case made and provided ; as also appears to us of record : And now on the behalf the said C. D., in our said Court of Common Pleas, we have been informed that the said A. B. hath had his execution of the damages and costs aforesaid, on pretence of the said judgment of our said Court of Common Pleas, and is yet possessed thereof: where- fore the said C. D. hath besought us to provide him a proper remedy in this behalf: And we being willing that what is just in this behalf should be done, command you to make known to the said A. B. that he be before the Judges of our said Court of Common Pleas, on the first day of their next Term, to show, if he hath orknoweth of any thing to say for himself, why the said C. D. ought not to have as well restitution of the damages and costs aforesaid, as execution against him for his costs and charges so as aforesaid recovered by the said C. D., on occasion of his prosecution of the writ of Error aforesaid, ac- cording to the form, force and effect of the said judgment of our Supreme Court aforesaid ; if it shall seem expedient, &c. [ Conclude as in No. 1, Ante. 356.] For the Form of a writ of Restitution, See Ekrok, Post. No. 26. Alias Scire Facias. The State of Ohio, To the Sheriff of — County, Greeting : Whereas, &c., [as in the first writ, inserting these words, after the return of the Sheriff, " as before we have commanded you," and altering the teste and return.] 380 SCIRE FACIAS. Pleadings in Scire Facias. Pleadings in Scire Facias.* In England, and in some of the United States, it is customaiy to file a declaration, upon the return of the Scire Facias. Such dec- laration merelv recites the writ, tiie plaintirt'"s appearance, and the return, and concludes with a prayer for execution ; Tidd. Pr.. lOi'2. This practice does not prevail in Ohio ; and it is the settled rule that the writ of Scire Facias must itself contain every thing necessary to constitute a good declaration : r2 Ohio Rep. -240, 345 : 4 Ohio Bep. 397 ; 5 Ohio Bep. 51*2. The declaration upon a Sci. Fa. is no more than a copy of the writ, and a demurrer to the writ has the same legal eflect and operation as a demurrer to the declaration ; 1 Paine, 65"2. To a Scire Facias, the defendant may plead ^nl iiel j-ecord. This plea is proper in all cases where there is a material variance be- tween the record and judgment, as set forth in the Scire Facias ; 4 Salk. 59S. So a Release of all actions, or executions : Co. Lift. 290, b. 1-2 Mass. '26S ; 2 T. B. 46. Or, that the debt has been levied by execution ; D^er, 299 ; 1 Salk. 271. Or, Payment; 12 Mass. 268. To a Sci7'e Facias upon a mortgage to secure a note, it is a good defence to say that the consideration of the note was an agreement to conceal a felony: 7 Ohio Bep. 11. Part 1st. But nothing can be pleaded in bar that might have been pleaded in the original action ; Cowp.l2$: 1 Salk. 315; 4 Mass. '■2\S : 1-2 Mass. 268 : 8 Johns. Rep. 77. Nor any thing contrary to the title on which the recovery was obtained, or which shows the judgment only erroneous and voidable; Com. Dig. PL. (3 L.) 10. Nor. the ]>end- ency of a writ of error, on the same judgment ; 4 Mod. 247 ; Seiyib. contra, Show. 186; Skin. 590, To a Scire Facias, io revive a judgment in ejectment, for the term and damages, the defendant can- not plead a conveyance made by the lessor of the plaintiff, subsequent to the judgment : 1 Peters C. C. Bep. 446. (a) In most cases, wriis of Scire Fa- or his heirs, or executors or adminis- c»fls,by Slatuton,- provision, are serv'd trators. to revive a dormant judgment, and returned, in the same manner as a upon one writ beincf returned "scire writ of 6V7?JHJO;i*. Upon a .SV/rc /o- feci," or two writs "nihil," the de- cias to subject real estate to a .Tusiice's fendants arc considered in Court and judgment, a return of two nihih, if may be proceeded against according- the defendant does not reside, or can- ly : Suan's Slat. 6V2.§ 103. The not be found in the county, is tanta- same rule holds also in certain cases mount to actual service; Swan's against administrators: Jd. 374, § 5/a/. 532, § 121. In cases of 5'ctrc 15»8. Facias against the original defendant, SCIRE FACIAS. 381 Pleadings in Scire Facias. No. 1. iVwZ tiel record. C— D— , ^ ads. >Sci. Fa. A— B— , ) And the said C. D. comes and defends, &c., and says, that the said A. B. ought not to have his execution against the said C. D. for the damages, costs, and charges aforesaid, because he says, * that there is no such record of recovery against him, the said C. D. at the suit of the said A. B. in manner and form as the said A. B. hath complained against him ; and this he is ready to verify : Wherefore, he prays judgment if the said A. B. ought to have his execution aforesaid, &c. By T., his AWy. No. 2. Payment. {Proceed as in No. 1, to the * — that the said C. D. after the recovery of the judgment aforesaid, and before the issuing of the said writ, to wit, on — paid to the said A. B. the sum of — dollars in full satisfaction and discharge of the said judgment ; and this, &.c. {Conclude as in No. 1. No. 3. Death of Principal before return of Ca. Sa. {Proceed as in No. 1, to the * — that the said E. F. in the said judgment mentioned, before the issuing of the said first writ of Scire Facias, and before the return of any writ of capias ad satisfacien- dum against him, died, to wit, on — at — and this, &c.* [Conclude as in No. 1. No. 4. Plea to a Scire Facias for Costs against Securities that the Summons was not indorsed until after Suit brought.^ And for a further plea in this behalf, by leave, &c., the defendants say, that the plaintiffs ought not to have and maintain their aforesaid action of Scire Facias thereof against them because they say, that the (a) See Scire Facias against Bail, (b) This plea was held good ; 6 No. 20, Ante. 372. Ohio Rep, 436. 382 SCIRE FACIAS. Trial by Jury — Verdicts — Judgments. said H, T., at whose instance said writ of Summons was issued, and ao-ainst whom said judgment was rendered, was at the time of the issuing and return thereof, and for a long time thereafter, to wit, until the month of January in the year of our Lord one thousand eight hundred and twenty-eight, a resident of said county of Hamilton, in the State of Ohio ; and that said writ of Summons was not indorsed by said defendants before the delivery thereof to the Sheriff of said county to be served ; nor until after the said suit of the said H. T. had been continued in said Court of Common Pleas, from Term to Term, from the said February Term A. D. 182G, to the November Term thereof, A. D. 1828 ; and this they are ready to verify : Where- fore they pray, &c. Trial by Jury — Verdicts — Judgments. For general Rules regulating Trials by Jury, See Trials in Assump- sit, Ante. 150. Verdicts and Judgments. For general Rules regulating Verdicts and Judgments, See Ver- dicts and Judgments in Assumpsit, Ante. 151. No. 1 . Verdict and Judgment for Plaintiff on issue to the Country. A— B— , ^ V. > In Scire Facias. C— D— , ) This day came the parties by their attorneys and thereupon came a jury, to wit, E. F., &.C., who being empannelled and sworn the truth to speak upon ihe issue joined between the parties, upon their oaths do say, That, &,c., [stating the affirmative or negative of the issues, according to the finding of the jury ;] in manner and form as the said A. B. hath above in pleading alleged : Therefore It is considered that the said A. B. have his execution against the said C. D. of the damages and costs aforesaid, according to the force, form and effect of the said recovery : [or otherwise according to the prayer of the writ ;] and also that the said A. B. recover against the said C. D. — dollars for costs by him about his suit in this behalf expended. SCIRE FACIAS. 383 Verdicts and Judgments. No. 2. Judgment for Plaintiff on submission to the Court. In Scire Facias. A— B— , V. C— D— , This day came the parties by their attorneys and submit this cause to the Court upon the issue joined, and the Court being fully advised in the premises do find, That, &c. [Conclude as in the last Pre- cedent. \ No. 3. The like, against an Executor or Administrator. Enter the finding of the Court or Jury as before — Therefore, It is considered, that the said A. B. have his execution against the said C. D. as such Executor or Administrator as aforesaid, of the damages and costs aforesaid, to be levied in form aforesaid, according to the force, form and effect of the said recovery ; [or othertvise, ac- cording to the prayer of the ivj'it,] and also that the said A. B. re- cover against the said C. D. his costs by him about his suit in this behalf expended, to be levied of the goods and chattels which were of the said E. F. at the time of his death, in hands of the said C. D. as such Executor or Administrator, to be administered ; [or, if the case be so, to be levied of theprojoer goods and chattels of the said CD.] No. 4. Verdict and Judgment for Plaintiff, on suggestion of Further Breaches, under the Statute, Damages assessed by Jury. A— B— , ^ V. > In Scire Facias. C— D— , ) This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F. &c. who being empannelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say that, &c. [stating the affirmative or negative of the issues, ac- cording to the finding of the jury]; and they assess the damages of the said A. B. on occasion of those other and further breaches of the condi- tion of the said writing obligatory by him in pleading above alleged to — dollars ; Therefore It is considered, that the said A. B. upon the judg- ment aforesaid, have his execution against the said C. D. of the said 384 SCIRE FACIAS. \'erdicti and Judgments. sum of — dollars, his damages aforesaid, in form last aforesaid as- sessed ; and also that the said A, B. recover against the said C. D. — dollars, for his costs by him about his suit in this behalf expended. No. 5. Verdict and Judgment, making Defendants not served ivith p7'ocess, Parties to the Original Judgment. Enter the finding of the Jury or Court as in No. 1, Ante. 382, — Therefore It is consideueu that the said E. F. and G. H. be made parties defendants to the judgment aforesaid, and that the said A. B. upon the same judgment, have his execution against the said E. F. and G. H. of the damages and costs aforesaid ; and that the said A. B. recover of the said E. F. and G. H. — dollars for his costs by him about his suit in this behalf expended. No. 6. Judgment of Revivor, on Default. In Scire Facias. This Day came the said A. B. by E. F. his attorney, and the said C. D. though solemnly called, came not, but made default ;* There- fore It is considered, &c. [Conclude as in No. 1, Ante. 382. No. 7. The like, against an Executor or Administrator on Default. Proceed as in the last Form to the (*) — Therefore It is con- sidered, &c. [ Conclude as in No. 3, Ante. 383. No. 8. Judgment by Default, making Defendants not served with j)rocess, Parties to the Original Judgment. Proceed as in No 6, to the (*) — Therefore It is considered, &c. [ Conclude as in No. 5. (a) On a Scire Facias to revive a Facias and judg-mcnt of revivor be judtrment no new judgment is rcn- for a less sum than the original judg- dered, but the old one is called into ment, the judgment of revivor will action ; Norton v. Beaver, .5 Ohio be reversed on error; ffolfv. Pound- Rep. 178; S. P. Reynolds v. Rocr. ,ford, 4 Ohio Rep. 397. ers, 5 Ohio Rep. 169. If the Scire SCIRE FACIAS. 385 Verdicts and Judgments. No. 9. The like, by Default, on suggestion of Further Breaches after Judgment on Penal Bond. Proceed as in No. 6, Ante. 384, to the (*) — Therefore It is CONSIDERED, &c. [Concludc tts hi No. 4. Ante. 383. No. 1 0. The like, by Default, subjecting Real Estate to the pay- ment of a Justice's Judgments Proceed as in No. 6, Ante. 384, to the (*) — Therefore It is CONSIDERED, that the said A. B. upon the judgment aforesaid, have his execution against the said C. D. of the damages and costs afore- said, with interest thereon, according to the Statute in such case made and provided, to be levied of the lands and tenements of the said C. D. ; and also, that the said A. B. recover against the said C. D. — dollars for his costs about his suit in this behalf expended. No. 1 1 . Judgment for Defendant. Enter the plaintiff '' s Default, or thejinding of the Court or Jury in favor of the Defendant, — Therefore It is considered, that the defendant go hence without day, and recover against the said A. B. — dollars for his costs by him about his suit in this behalf expended. (a) Upon a Scire Facias from a merely is awarded ; Jackman v. Hal- Justice of the Peace to charge real lock, 1 Ohio Rep. 318 ; See Form estate, no new judgment is rendered of Writ, Ante. 373, note (a), in the Common Pleas ; Execution 49 386 ATTACHMENT. Attachment. ATTACHMENT. Attachment is a Statutory remedy, whereby any creditor, whether a resident of the State or not, whose claim rests upon matter of Con- tract. Judgment, or Decree in Equity, may, on making the proper affidavit, seize in tiie first instance tlie property of his debtor, where- ever it may be found, and detain tlie same until final judgment ; Swcm's Stat. 88.» (a) Money collected by a Sheriff', on Execution, cannot be seized in his hands by a Foreign Attachment; and the Sheriff is liable to amerce- ment, if he makes such a return on his Execution ; Dawson v. Holcomb, 1 Ohio Rep. 275. In Certiorari on a judgment in Attachment, it may be assigned as error in fact, That the defendant in the original suit was ac- tually a resident when the Attach- ment was sued out ; Hartshorn v. Wilson, 2 Ohio Rep. 27. In cases certified to the Common Pleas on At- tachment from Justices of the Peace, the jurisdiction of the Common Pleas is original, not appellate ; f^anckve V. M'ilson, 2 Ohio Rep. 202. In Foreign Attachment, under the Act of 1810, a judgment is erroneous un- less three months' notice be given; Colwell V. Bank of Steubenville, 2 Ohio Rep. 229. A Foreign Attach- ment is not sustainable against one member of a Partnership ; Coivdin V. Hurford, 4 Ohio Rep. 132. Nor can it be sustained where one of sev- eral persons jointly liable is a resi- dent of the State, and the others non-residents — All must have ab- sconded, or be non-rcsidenls ; Tay- lor V. McDonald, 4 Ohio Rep. 1 1'u. But where two or more are jointly bound or indebted, either as joint ob- ligors, partners, or otherwise, at- tachment lies against the separate or joint estates, or both, of such joint debtors, or any of them ; Small's Stat. 93, § 13. Under the Attach- ment law of 1805, the indebtedness and non-residence of the defendant, and the levy of the Attachment on property subject to the suit, are ne- cessary to give the Court jurisdic- tion ; MitcheWs Lessee v. Eyster, 7 Ohio Rep. 257, Part 1st. In such case, the omission of the Sheriff to sign the inventory and appraisement, is a mere irregularity, and does not vitiate the proceedings ; lb. Under the Act of 1805, administrators are properly made defendants; Jb. An action on the case lies against one for falsely and maliciously suing out a writ of Attachment, and seizing the plaintiff's goods, though the defen- dant in Attachment was actually in- debted to the plaintiff at the time ; Tomlinson v. IVarner, 9 Ohio Rep. 103. On the 23d of February, 1811, Fuller conveyed certain lands to Griswold ; on the 20th of June, 1812, the same lands were attached, as Fuller's property, at the suit of We.'^t : In June, 1813, before judg- ment in the Attachment suit, Gris- wold put his deed upon record, the Law at that time requiring deeds to ATTACHMENT. 387 Prsecipe and Affidavit. PRiEciPE AND Affidavit for writ of Attachment. A— B— , ^ V. > In Case, &-c., Damages — dollars. C— D— , ) Issue a writ of Attachment returnable at next Term, Indorse, " Suit brought, &c." [See Prcecipe in Assumpsit, Ante. 12. T. S., Att'y for Pl't'ff. To the Clerk of — Com. Pleas. Dated, &c. Affidavit.' The above named A. B. makes oath and says, that the above named C. D. is his debtor, and hath absconded, to the injury of his creditors, or, that the above named C. D. is his debtor, and is not a a resident of the State of Ohio, as he verily believes. A. B. Sworn to and subscribed before me this — day of — , A. D. — . T. X. Justice of the Peace. be recorded in one year from their date : In September, 1813, the lands were sold by Auditors, under order of the Court, and a deed made, and recorded the same day: — Held, That the purchaser, at the Auditor's sale, took the title ; Parker'' s Lessee v. Miller, 9 Ohio Rep. lOS. No- tice of the pendency of the suit may be shown by parol, the Act of 1810 not requiring such notice to be made part of the record ; lb. The return of service upon a writ of Attachment must show that the property attached was that of the defendant ; Pelton v. Platner, 13 Ohio Rep. 209. A judg- ment in Attachment before a justice of the peace in Ohio, without service upon the person, appropriates the property only ; Id. Execution can- not issue, on such judgment, against the person or other property of the defendant, for any balance unpaid ; Id. A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being attached ; Fame's Lessee v. Mooreland, 15 Ohio Rep. 435. If attached and sold as the property of the vendor, a purchaser, without no- tice of the equity, takes a good title as an innocent purchaser without no- tice ; /(/. The Court acquires juris- diction in attachment, by the issuing of process, predicated upon the re- quisite affidavit, and the attaching of the property ; and if, after thus ob- taining jurisdiction, the Court pro- ceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed up- on writ of error ; Id. (a) If the writ issues without the proper oath or affirmation, it will be quashed at the costs of the Clerk ; Swan's Stat. 88, § 1. 388 ATTACHMENT. Writ of AttachmeHt. Affidavit by an Agent or Attornky. T. S. makes oatli and says, that he is the Agent, or Attorney, of the above named A. B. in this behalf, and tliat tlie above named C. D. is the debtor of the above named A. B. and hath absconed, to the injury of his creditors, or that the above named C. D. is the debtor of the above named A. B. and is not a resident, &c. Writ of Attachment. [Seal.] The State of Ohio, To the Sheriff of — County : Greeting. We command you that you forthwith attach the lands, tenements, goods, chattels, rights, credits, moneys and efTects of C. D., whereso- ever they may be found, and the same keep, or so provide that the same or the value thereof be forthcoming, to answer the judgment of our Court of Common Pleas, within and for the said County of — , in a certain action on the Case, therein prosecuted by A. B. against the said C. D. for — dollars damages : And in what manner you shall execute this writ, make appear to our said Court of Common Pleas, on the first day of their next Term ; And have you then there this writ. Witness, T. C. Clerk of said Court of Common Pleas, at C, this — day of — , A. D. — . T. C. Clerk. If the plaintiflf be not a freeholder or a resident of the County, the writ, before service, is to be indorsed by some freeholder of the County as security for costs ; Swanks Stat. 88, <§> 1. The officer goes with the writ to the place where the prop- erty of the defendant is to be found, and in the presence of two freeholders of the county, declares, that by virtue of said writ he at- taches the property, at the suit of the plaintifli'; and thereupon the officer, with the freeholders, who are to be under oath or affirmation, to be administered by the officer, makes out a true Inventory and Appraisement of all the property attached, which is signed by the of- ficer and freeholders, and returned with the writ ; Swan's Stat. 88, ^2. ATTACHMENT. 339 Inventory and Appraisement — Sheriff's Return. Form of Inventory and Appraisement. An Inventory and Appraisement of certain property attached by T. S., Sheriff of — County, in a certain action now pending in the Court of Common Pleas of said county, at the suit of A. B. against C. D., made this — day of — A. D. — by the said Sheriff' together with E. F. and G. H., two freeholders of the same county, in this behalf sworn or affirmed by said Sheriff, in due form of law : To Wit: One Horse, appraised by us at — Dollars ; Another Horse " " — " One hundred acres of land bounded and described as follows, to wit, [setting out the metes and bounds with the same particularity as in deeds of conveyance,] and appraised by us at — dollars. T. S., Sheriff of — County, E. F., G. H. The Inventory and Appraisement is then attached to the writ, upon which the Sheriff indorses his return. Sheriff's Return. I executed this writ on the — day of — A. D. — by attaching, in due form of law, certain property in the possession of T. X., described in the Inventory and Appraisement herewith returned, and which property now remains in my hands, or, was redelivered to the said T. X. upon bond and security. T. S., Sheriff of — County. Dated, &c. The property attached remains in the hands of the Officer, unless the person in whose possession it is found, gives bond with two sure- ties, freeholders in the same county, in double the appraised value, conditioned that the same property, or its appraised value in money, shall be forthcoming to answer the judgment of the Court ; Swan's Stat. 89, <§. 4. Bond to the Sheriff upon redelivery of Property. Know all men by these presents, that we T. F., E, F. and G. F., [Two freeholders of the County,] are held and firmly bound unto 390 ATTACHMENT. Advertisement. T. S.J Sheriff of the County of — in the State of Ohio, in the penal sum of — dollars [Double the appraised value of the property] to the payment of which well and truly to be made we do by these presents jointly and severally bind ourselves, our heirs, executors and administrators : Sealed with our seals, and dated this — day of — A. D. — . The Condition of the above obligation is such, that, whereas, by virtue of a writ of Attachment issued out of the Court of Common Pleas of the said county of — against C. D. at the suit of A. B. bearing date the — day of — A. D. — the said Sheriff hath seized upon and taken the following property, in the possession of the said T. F., to wit, [desci'iption] and which has been appraised in due form of law to — Dollars ; and upon the ensealing of these presents is redelivered to the said T. F. Now, if the said property above de- scribed, or its appraised value in money, shall be forth-coming to answer the judgment of said Court in the action aforesaid, then this obligation shall be void ; otherwise, in full force and virtue in Law. T. F. Seal. E. F. Seal. G. F. Seal. Upon the Return of the writ, it is the duty of the Clerk, to make out an Advertisement, and deliver the same to the Plaintiff, or his attorney, on demand ; who causes the same, within thirty days, to be inserted in one of the newspapers printed in the State, and nearest the place where the attachment issued, for six weeks successively ; and if the plaintiff neglects to have such notice published, the At- tachment will be dismissed with costs ; Swan's Stat. 89, <§> 3. Form of Advertisement. Notice in Attachment. All persons interested will take Notice that A. B. on the — day of — A. D. — sued out a writ of Attachment from the Clerk's office of the Court of Common Pleas of — County, in the State of Ohio, against C. D. for the sum of — Dollars, which writ has been served and returned. Attest : T. C. Clerk. Dated, &-c. A. T., Att'y for Pl'tiff. ATTACHxMENT. 391 Entry of Default at i'irst Term. Affidavit of Publication. — ' J. S., of, &c., makes oath and says, that a true copy of the Notice hereto attached was advertised in a newspaper called — printed in the State of Ohio and in the town of — [nearest the place where the attachment issued] for six weeks successively, commencing on — and ending on — . Sworn to, &c. If the property attached be of a perishable nature, it may be sold by order of the Court, at any time after the return of the writ ; Swan's Stat. 93, <§. 11. Order for Sale of Property of a perishable nature. A— B— , ^ V. >In Attachment. C— D— , > This day came the said A. B. by Mr. E. F., his attorney, and it being made to appear to the satisfaction of the Court, that the prop- erty herein attached by the Sheriff', and now in his custody, is of a perishable nature. It is therefore ordered that the said Sheriff" forthwith proceed to advertise and sell the same in like manner as if said property had been taken by him on execution. At the first, and two next Terms, after the issuing of the writ, the defendant is to be called and his default entered. Entry of Default at the First Term. A— B— , ^ V. > In Attachment. C— D— , ) This day came the plaintiff", by Mr. E. F. his Attorney, and the said C. D., being three times solemnly called, came not, but made default ; and it appearing to the satisfaction of the Court that publi- cation of advertisement herein has been made in due form of law, It (a) It was the early practice to tion is filed in the case. Whatever prove publication by producing in be the form, it seems proper to notice Court the newspapers themselves ; the fact of proof, by an entry, on the but in later times, a copy of the no- record at the first Term ; 9 Ohio tice with an affidavit of its pubHca- Bep. 108. 392 ATTACHMENT. Entry of Default at Second Term — Judgment by Default at Third Term. IS THEREFORE ORDERED that the Same, together with this the first default of the said C. D. be entered ; and the same is accordingly done ; and the cause is continued until the next Term. Entry of Default at the Second Term. A— B— , ^ V. vin Attachment. C— D— , ) This day came again the said A. B., by Mr. E. F., his Attorney, and the said C. D. being again three times solemnly called, came not, but made default ; It is therefore ordered that this his second default be entered ; and the same is accordingly done ; and the cause con- tinued until the next Term. At, or before, the thii^d Term, the plaintiff, and all other like creditors, may file their declarations against the defendant, in the usual form : See Declarations in Assumpsit, Debt, &c. ; and the defendant may, in like manner, file special bail, or surrender himself into custody, or elect to have the property attached remain in custody ; and may plead to any, or all declarations filed against him ; and if no {)lea be put in, judgments by default may be taken, at the third Term, as in other cases ; and the defendant may appear and intro- duce evidence as in other case of default ; and may appeal, move in arrest of judgment, or set aside the proceedings for irregularity. And if the defendant gives special bail, or surrenders himself into custody, the attachment ceases to operate upon the property attached, so far as those plaintiffs are concerned, in whose behalf such special bail was given, or the surrender into custody made ; Swan's Stat. 91, '§. 9: See, Capias in Assumpsit, Ante. 20. Judgment by Default at the Third Term, Damages assessed BY THE Court. ^— B— , > v. } In :- D-, ) A— B— , Attachment. C- This day came again the said A. B., by Mr. E. P., his Attorney, and the said C. D. being again three times solemnly called, came not, but made default ; It is therefore ordered that this his third default be entered, and the same is done accordingly ; and thereupon It is ATTACHMENT. 393 Affidavit for a Writ to another County. CONSIDERED, that the said A. B. ought to recover his damages by reason of the premises ; and neither party requiring a jury, the Court being fully advised in the premises, do assess the damages of the said A. E. to — dollars ; Therefore, It is considered that the said A. B. recover against the said C. D. the said sum of — dollars, his damages aforesaid, in form aforesaid assessed, and also his costs herein expended, taxed to — dollars. For Forms of Verdicts and Judgments upon issues in fact, and in other cases. See Verdicts and Judgments in Assumpsit, Ante. 151. After final judgment, the property attached is sold, as upon other judgments, and the proceeds applied pro rata upon the several judg- ments ; Swan's Stat. 92, § 11. If it liappen tliat the original plaintift', who sued out the writ, be defeated ; or if he in any way fails to prosecute his suit to effect, the other creditors may still pro- ceed on to final judgment ; and the property attached remains in the hands of the officer for their benefit; Sloan's Stat. 91, <§> 9. Proceedings against property in Another County. If the defendant has property in another County, a second writ may be issued to the Sheriff of that County, on making the proper affidavit ; Sivan's Stat. 93, *§> 1 2. Affidavit for a Writ to Another County. A— B— , ^ v. > In Attachment. C— D— , ) The above named A. B. (or his agent or attorney) makes oath and says, that he verily beheves that the said C. D. hath lands, tene- ments and real estate, [or goods and chattels, as the case may be] situate in the County of — [naming the county] in the State of Ohio. Sworn to, &c. Upon this affidavit another writ like the former, is issued ; and the same proceedings are had upon it as in other cases. 50 394 ATTACHMENT. Proceedings against Garnishee. Proceedings against Garnishee, by Notice. Upon the oath of the plaintiff, or other credible person, that he has good reason to, and does verily believe, that a third person has pro- perty of the defendant in his possession, if the sheriff cannot come at the property, he is required to leave with the Garnishee, or at his usual place of residence, a copy of the writ of attachment, and affi- davit, with a written notice for him to appear at the return of the writ, and answer, under oath or affirmation, all questions put to him touching the property and credits of the defendant in his possession, or within his knowledge ; and from the day of the service of the notice, the Garnishee is liable to the plaintiff in attachment for the amount of property in his hands, or the amount he may owe to the defendant in attachment ; Swan's Stat. 89, ^ 5. Form of Affidavit. A— B— , ^ V. > In Attachment. C— D— , ) The above named A. B. [or other credible person] makes oath and says, that he has good reason to, and does verily believe, that T. W. has in his possession the following property, \desc7'ibe it,] belonging to the above named defendant. Sworn to, &c. Form of Notice to Garnishee. A— B— , ^ v. > In Attachment — Common Pleas. C— D— , ) To T. W., of, &c. You are hereby notified to appear before the Court of Common Pleas of — County, on tlie first day of their next Term, to answer such questions as may be put to you touching the property and credits of the above named defendant, in your possession, or within your knowledge ; and abide the order of the Court in the premises. A. B. Dated, &.c. ATTACHMENT. 395 Proceedings against Garnishee. Sheriff's Return. I executed this writ on the — day of — A. D, — , by leaving with T. TV., or, at the usual place of residence of the said T. W., a copy of this writ, and of the affidavit, and notice hereto attached. T. S., Sheriff of — County. Dated, &c. Form of Interrogatories. In Attachment. Interrogatories to be answered by T. W. in pursuance of a notice served upon him in this case as Garnishee in Attachment. I. Do you know the parties, plaintiff and defendant, in this case, or either of them ? II. Do you, &c. [stating such questions as are thought projjer.] Lastly. Do you know of any other matter or thing, or can you say any thing touching the property or credits of the defendant in this case, that may tend to the benefit and advantage of the plaintiff in this case, besides what you have been hereinbefore interrogated ? Form of Garnishee's Answer to Interrogatories. In Attachment. The Answer of T. W. to the Interrogatories put to him as Gar- nishee in Attachment, in this case. I. To the First of said Interrogatories the said T. W. answers and says, That &c. II. To the Second, That, &c. [and so on.] Affidavit. The above named T. W. makes oath and says, that all the several matters and things which are set forth in the foregoing answers as from the information of others, he believes to be true ; and that all the other several matters and things therein set forth are true in sub- stance and in fact. Sworn to, &c. 396 ATTACHMENT. Proceedings against Garnishee If the Garnishee fails to appear and answer the Interrogatories, the Court may proceed against him by Attachment for contempt ; Swan's Stat. 89, >§> 5. See Attachment for Contempt, Post. Title, Chan- cery. After answer to the Interrogatories, no further proceedings are had against the Garnishee, until final judgment in the principal case; and then a Scire Facias is issued against the Garnishee to show cause why the plaintitV should not have execution of the goods and chat- tels of the defendant in his hands, or for the money he owes to the defendant ; Sivan's Stat. 92, >§> 10. Scire Facias against Garnishee. The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, in our Court of Common Pleas within and for the County of — , to wit, at the — Term thereof, A. D. — , by our certain writ of Attachment, impleaded C. D. in a certain plea of assumpsit, &c. [or, as the plea is]: and thereupon such proceedings were had in our said Court of Common Pleas, that afterwards, to wit, on — T. W. was notified, in due form of law. to appear and answer certain interrogatories of the said A. B. touching the property and credits of the said C. D. in the possession or within the knowledge of the said T. W. according to the form of the Statute in such case made and provided ; as to us appears of record ; And whereas also, afterwards, to wit, on — , the said A. B. by the judgment of the same Court, recovered against the said C. D. — dollars, for his damages on occasion of the premises, and — dollars for his costs and charges by him about iiis suit in that behalf expended ; whereof the said C. D. was convicted, as also appears to us of record : And now on the be- half of the said A. B. in our said Court of Common Pleas, we have been informed that the said judgment thereupon given, in form afore- said, still remains in full force and cfifect, in no wise set aside, re- versed, paid off, or satisfied ; wherefore the said A. B. hath besought us to provide him a proper remedy against the said T. W. Garnishee as aforesaid, in this behalf: And we being willing that what is just in this behalf should be done, command you that you make known to the said T. W, Garnishee as aforesaid, that he be before the Judges of our said Court of Common Pleas on the first day of their next Term, to show, if he hath or knoweth of any thing to say for him- self, why the said A. B. ought not to have execution of the goods and chattels of the said C. D., which were in the possession of the said T. W. at the time of the service aforesaid upon him, as Garni- ATTACHMENT. 397 Proceedings against Garnisliee. shee as aforesaid, &c. [or of the money due by him to the defendant, or both, as the case may be] ; according to the Statute in such case made and provided ; if it shall seem expedient for him so to do ; and further to do, &c. [ Conclude as in other writs of Scire Facias, No. 1, Ante. 356. On the return of the Scire Facias the Garnishee may appear, and if by his oath or otherwise, to the satisfaction of the plaintiff, he ad- mits the amount of the debt, or the value of the goods, and delivers the same over to the Sheriff, or pays the value thereof, with all mon- eys he may owe to the defendant, into Court, his liability ceases ; and the costs are paid out of the property attached. But if the Garni- shee does not appear, judgment goes by default, on the return of one writ " served," or of two " nihils," as in other cases. The Garnishee may also plead to the Scire Facias as in ordinary cases ; Swan's Stat. 92, 10. For Forms of Judgment by Default, and upon Ver- dicts, See Scire Facias, Ante. 382. Proceedings against Gaknisee, By Capias. If the plaintiff in Attachment, or other credible person, makes oath or affirmation, that he has good reason to, and does verily believe, that the Garnishee will abscond before judgment and execution can be had against him, then the plaintiff may institute a suit in his own name against the Garnishee by Capias ad Respondendum; Swan's Stat. 20, *^ 6. Precipe and Affidavit for a Capias ad respondendum against Garnishee. In Trover. — Damages — Dollars. Issue a Capias ad respondendum returnable forthwith [if in Term time,] or, at the next Term, [if in vacation,] Indorse, Suit brought against T. W. as Garnishee in Attachment for the goods, chattels, &c. of C. D. in the hands of the said T. W. and for money due from the said T. W. to the said C. D. &c. Hold to bail in — dollars, [Double the amount sworn to.] T. S. Atfyfor PlVff. To the Clerk of — Common Pleas. Dated, &c. 398 ATTACHMENT. Proceedings against Garnishee. Affidavit. The above named A. B. [or other credible person,] makes oath and says, that he has good reason to, and does verily bcheve, that the said T. W. will abscond before judgment and execution can be had against him as Garnishee in a certain suit in attachment now pending in the Court of — , wherein the said A. B. is plaintiff, and C. D. de- fendant, and that he has good reason to, and does verily believe, that the said T. W. has in his possession property, moneys or credits of the said C. D. to the value of — dollars, at the least, or, that the said T. W. is indebted to the said C. D. to the amount of — dollars, at the least. Sworn to, &:c. For the Form of the Writ, See Capias in Trover, Ante. 299. The Garnishee may put in Special Bail ; and the plaintiff declares against him in Trover, as of his own proper goods ; and if occasion requires, may add a count for money had and received, and the parties proceed on to trial as in ordinary cases ; Swan's Stat. 20, <^ 5. See Declarations and other proceedings in Trover and Assumpsit, Ante. 299, 150. A Capias may issue, in like manner, against any other person be- side the Garnishee, who has in possession property of the defendant, or who is indebted to him for money ; Id. <§> 5. The death of the defendant does not abate the suit; Id. >§> 14. An Attachment from the court of Common Pleas is a supersedeas to an Attachment issued by a Justice of the Peace ; Id. 15. PRACTICE. 399 Arbitration. PRACTICE. Arbitration.* All controversies, except such as relate to the possession or title of real estate, may be submitted to Arbitration ; and such submission may be made a rule of any Court of Record in the State ; Swan's Stat. 67, «§> 1. The parties may also enter into arbitration bonds, and may have legal process to compel the attendance of witnesses ; and the award, if for the payment of money, may be enforced by judgment and execution, and in other cases, by attachment, or other like process ; Id. <§> 4, 8, 9. Rule of Reference in a Case pending in Court ; the Award to be entered itp as a judgment without exception to form a sub- stance. This day came the parties by their Attornies, and by consent, sub- mit all matters in difference between them [m this suit] to the final determination of G. S. and T. S. and in case they disagree, to the determination of such other person as they may choose for umpire, so as said award be ready to be delivered to either of said parties, in writing, on or before the first day of the next Term of this Court, (a) The death of either party is a 8. One partner may submit a part- revocation of the submission ; 4 Eng. nership matter to arbitration for him- Com. La7v Rep. 341. For general self and fellows ; TFj-ighf, 420. The rules regulating Awards, See 1 Pet. Statute does not take away the right 222,230; 1 Black/. 433. By ad- to arbitrate at Common Law ; Jd.37. ministrators ; 14 Wend. 90. How If parties, under the Statute, agree overhaled in Equity ; 2 ,^tk. 396. to make the award a rule of a Court May sometimes be specifically en- of record, a Justice of the Peace can- forced in Equity ; 6 Litt. 1 ; Swans- not enforce it ; Id. 86. That the ar- ton, 42. A reference to arbitrators bitrators were sworn may be shown does not take away the jurisdiction by parol ; A/. Where a case pend- of the Court ; 2 Br. Ch. Rep. 270. ing in Court is referred to arbitrators, Attorneys at Law, Trustees, &c. may it is error to make the award a rule consent to a reference ; 1 Blaclf. 8. of Court ; Id. 281. An award, "to A reference from Court, and the ar- deliver up all the books, papers, and bitrator dies — the case is still in accounts, together with a small chest Court; 3 Sivanston, 9L How a and wearing apparel, not otherwise revocation is to be made — by deed, disposed of on the 31st of July, 1826," if reference be by deed ; 1 Blackf. is too vague to be enforced ; Thomas 400 PRACTICE. Arbitration. and which award or umpirage, the parties agree shall be entered up at the next Term as a judgment of this Court, and to such award or umpirage, or the judgment thereon, no exceptions, either formal or otherwise, shall at any time be taken ; and the same is ordered ac- cordingly ; and thereupon this cause is continued. The like, in the Common Form. This day came the parties by their Attorneys, and by their consent, It is ordered, that all matters in diflerence, \in this cause, or, between the parties in this cause,'] be referred to the award, arbitrament, final end and determination of A. C. Esquire, so as the said A. C. shall make and publish his award in writing, under his hand, and ready to be delivered to the said parties, or their attorneys, or such of them as shall desire the same, on or before the — day of — now next ensu- ing, with liberty to the said Arbitrator, by indorsement under his hand upon an authenticated copy of this Rule, to direct that an or- der of this Court shall be applied for, at the instance of either party, to enlarge the time for making his said award, if he shall see neces- sary ; and that the said parties shall do, perform, fulfill, and keep such award so to be made as aforesaid. And by the hke consent as aforesaid. It is further ordered, that the costs of the cause abide the event of the said award, and that the costs of the reference and of this rule, be in the discretion of said arbitrator, who shall direct and award by whom and to whom, and in what manner the same shall be paid ; and that the plaintiff" and defendant respectively be examined upon oath, to be sworn before any Judge of, &c. [or Justice of the Peace,] if thought necessary by the said arbitrator. And by the like V. Molier, ;3 Ohio Rep. 266. An the Law and the Fact, and their a- award must show, That the arbitra- ward is final, and is not to be distur- lors met at the time and place speci- bed, unless it is made clearly to ap- in the submission : So held on error; pear, that they have not regarded the Strum V. C'unninghain,S Ohio Rep. principles of natural justice, in hear- 286. Assumpsit does not lie on an ing the parties, or givingtheman op- award made in pursuance of a sub- portunity of being heard ; or that mission under seal: The action ari- they were partial, or corrupt, or were ses out of the submission, and when imposed on by fraud ; or that they that is under seal, the action must be have made a plain mistake in car- debt or covenant ; 3 Ohio Rep. 510. rying out the principles they had An action lies on an award to pay 50 themselves settled ; 7 do. 98, Part dollars in corn at 25 cents a bushel ; 1st. After hearing the parties and 5 do. 473. An agreement, alter their proofs, arbitrators may meet for award made, to submit the controver- consultation, without giving notice to sy anew, vacates the first award ; .5 the parties ; lb. do. 586. Arbitrators determine both PRACTICE. 401 Arbitration. consent as aforesaid, It is also ordered, that the witnesses of the said plaintiff and defendant resjDectively be examined upon oath, to be sworn in due form of law ; and that the said parties, or their attor- neys, do produce before the said arbitrator, all books, papers and writings touching and relating to the matters in difference between the said parties, as the said arbitrator shall think fit ; and that neither of said parties shall bring any action or suit in any Court of law or in equity, against the said arbitrator, for what he shall do in the prem- ises, or bring or prefer any bill in equity against each other, of and concerning the premises so as aforesaid referred. And by the like consent as aforesaid. It is lastly ordered, that if either party shall, by afiected delay, or otherwise, wilfully prevent the said arbitrator from making his said award, he shall pay such costs to the other as this Court shall think reasonable and just ; and thereupon this cause is continued. A submission may be, by Parol, or by a Written Agreement, or by an Arbitration Bond ; and in each case the submission may be made a Rule of Court. Form of Submission by a Written Agreement. To all to whom these Presents shall come. Greeting : Whereas, certain differences have arisen between John Nokes, of, &c., and Joseph Styles, of, &c., respecting [certain matters of ac- count now open and unsettled betiveen them,] Now Therefore Know Ye, that we, the said John Nokes and Joseph Styles have nominated and appointed, and by these presents do nominate and ap- point, A. C, of, &c., and B. C, of, &c., to be arbitrators between us, to whom we refer as well the said differences, as also all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, accounts, reckonings, quar- rels, controversies, trespasses, damages, whatsoever, both at law and in equity, at any time or times heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depen- ding by and between the said John Nokes and the said Joseph Styles, to hear and determine the same, with liberty to the said arbitrators, [either before they enter upon the said arbitration, or,] at any time pending the said reference, to appoint, choose, and name an umpire ; And loe do furthermore by these presents agree, that this submis- sion may be made a rule of the Court of — , by either party, pur- suant to the Statute in such case made and provided. Witness our hands and seals this — day of — A. D. — . [Seal.] [Seal.] 51 402 PRACTICE. Arbitration. Form of Submission by Arbitration Bonds. Know all men by these presents, that I, John Nokes, of, &c., am held and firmly bound to Joseph Styles, of, &-c., in the sum of — dollars, to be paid to the said Joseph Styles, his certain attorney, ex- ecutors, administrators or assigns ; for which payment well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents : Sealed with mv seal. Dated this — day of — , A. D— . The condition of this obligation is such, that if the above bounden John Nokes, his heirs, executors and administrators, and every of them, do and shall, for his and their part and behalf, in all things well and truly stand to, obey, abide, observe, perform, fulfil and keep the award, order, arbitrament, final end and determination of E. F., of, &.C., and G. H., of, &c., arbitrators indifferently named, elected and chosen, as well by and on the part of the above bounden John Nokes, as of the above named Joseph Styles, to arbitrate, award, or- der, judge and determine, of and concerning, as well certain matters of account now open and unsettled between them, as also all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, accounts, reckonings, quar- rels, controversies, trespasses, damages and demands whatsoever, both at law and in equity, at any time or times heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed or depending by and between the said parties, so as the said award be made in writing, on or before the — day of — now next ensuing ; but if the said arbitrators do not make such their award, of and con- cerning the premises, by the time aforesaid, then if the said John Nokes, his heirs, executors and administrators, do and shall, for his and their part and behalf, in all things well and truly stand to, obey, abide, observe, perform, fulfil and keep the award, order, arbitrament, umpirage, final end and determination of T. W., of, &c., a person indifferently named and chosen as an umpire between the said parties, of and concerning the premises, so as the said umpire do make his award and umpirage in writing, of and concerning the premises, on or before the — day of — now next ensuing ; and so as the said ar- bitration be held on the — day of — now next ensuing, at the office of — , in the town of, &.c.,'' with liberty as well to the said arbitrators, (a) Where ihe submission is by arbitrators or umpire liberty to ad- Jiond, and is to be made a Rule of journ from time to time until the Court, the Statute requires the Bond award or umpirage is made up, some to specify the fime and place of hoi- certain time being fixed for closing ding the arbitration, but giving the the same ; Swan's Stat. 07, § 2, tT. PRACTICE. 403 Arbitration. as also to the said umpire, to adjourn from time to time, until their award, or umpirage, be made up, as aforesaid ; then this obligation to be void, or else to remain in full force and virtue ; And the said John Nokes doth consent and agree, that his submission to the award or umpirage above mentioned, shall be made a rule of the Court of — , pursuant to the Statute in such case made and provided. Sealed, &c. The Election of an Umpire. To all to whom these Presents shall come, Greeting : Whereas certain differences have arisen, &.c., [Here insert the Recitals as in the Submissioii, and then say,] which said differences were referred by the said John Nokes and Joseph Styles to the con- sideration of us, the said A. C. and B. C, to hear and determine the same, and we not being able to compromise and determine such dif- ferences, have therefore elected and made choice of, and by these presents do elect and make choice of O. P., of, &c., for Umpire, to hear and determine the said difierences between the said John Nokes and Joseph Styles. Witness, our hands and seals, &c. Appointment by Arbitrators^ Between John Nokes and Joseph Styles. We appoint Thursday morning next, at eight o'clock, at the office of, &c., for proceeding in this Reference. Dated the — day of — A. D. — . A. C. B. C. Award upon a Reference of a Case pending in Court, where the Award is to be entered as a Judgment ivithout exception to form or substance. We, the undersigned. Arbitrators appointed by the within Rule of (a) An appointment is unnecessa- the Arbitration ; Swanks Stat. 67, ry ii the Submission be by Bond, § 3. In other cases reasonable No- for that is required by Statute to spe- tice is to be given by the Arbitrators, cify the time and place of holding 404 PRACTICE. Arbitration. Court,* having notified and met the parties, and heard their several allegations, proofs and arguments, and duly considered the same, do award and determine, that the within named A. B. shall recover nothing of the witliin named C. D. [07' that neither of the within named jiar ties shall recover any thing of the other] and that each party shall pay his own costs of Court. And that the said — shall pay the costs of this Reference, wliich are taxed at — dollars. Dated, &c. G. S., ) T. S., V Arbitrators. R. N. > The like, in the Common Form. To all to whom these Presents shall come, I, A. C, Esquire, of, &c., send Greeting : Whereas at the — Term of the Court of Common Pleas of the County of — A. D. — , in a certain cause then pending in said Court, wherein John Nokes is plaintiff and Joseph Styles is defend- ant, in a plea of Assumpsit, by consent of parties, it was ordered, in the words following, that is to say, " This day came the parties," &c., [as in the order to the end;] Noav know ye, that I, the said A. C, having taken upon myself the burden of the said reference, and having heard, examined, and considered the allegations, witnesses, and evidences of both the said parties, do hereby award, order, and finally determine the said cause in favor of the said plaintifi'; And I do hereby find and award, that the sum of five hundred dollars was and still remains due from the said defendant to the said plaintifT; And I do further award and direct, that the said defendant, do upon demand, pay to the said plaintiff, or his attorney, the said sum of five hundred dollars, together with the costs of this suit, to be taxed ; and that the said cause be no further proceeded in ; And I do further award and direct, that each of the said parties do pay and bear their own costs of this Reference ; and that the said plaintifl" do pay the expenses of this my award, and that the said defendant do, upon demand, repay to the said plaintiff one moiety thereof. Signed and published by the within named A. C, as his award, this — day of — A. D. — . A. C. (a) If only two of the Arbitrators present at the hearing," having noti- agree, say, » We, the undersigned, fied and met the parties, &c.,~and a major part of the Arbitrators ap- it should be signed, pointed by the tvithin Rule of Court, T. S., ) A major part of G. S. the other Arbitrator, who has R. N. 5 the Arbitrators, not signed the award, having been PRACTICE. 405 Arbitration. An Award by two Arbitrators, on a Submission by Ai^biti'ation Bond. To all to whom these Presents shall come, We, E. F., &c., and G. H., of, &c., send Greeting : Whereas John Nokes, of, &c., and Joseph Styles, of, &c., by their several writings obligatory, sealed with their seals, and dated the — day of — A. D. — , became and were respectively bound to each other, in the sum of — dollars, with conditions thereunder writ- ten, that they, their heirs, executors and administrators, and every of them, did and should, for his and their part and behalf respectively, in all things well and truly stand to, abide, obey, observe, perform, fulfil and keep the award, order, arbitrament, final end and determin- ation of us the said E. F. and G. H., arbitrators indifferently named, elected, and chosen, as well by and on the part of the said John Nokes, as by and on the part of the said Joseph Styles, to arbitrate, award, order, judge, and determine, of and concerning, as well cer- tain matters of account then and still open and unsettled between them, as also all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, accounts, reckonings, quarrels, controversies, trespasses, damages, and demands whatsoever, whether at law or in equity, at any time or times theretofore had, made, moved, brought, commenced, sued pros- ecuted, done, suffered, committed, or depending by and between the parties aforesaid, so as the said award should be made in writing, on or before the — day of — then next ensuing ; but if we, the said arbitrators, should not make such our award, of and concerning the premises, by the time aforesaid, then the said John Nokes and Joseph Styles, their heirs, executors and administrators, did and should, for their part and behalf respectively, in all things well and truly, stand to, obey, abide, observe, perform, fulfil and keep the award, order, arbit- rament, umpirage, final end and determination of T. W., of, &c., a person indiiferently chosen as an umpire between the said John Nokes and Joseph Styles, of and concerning the premises, so as the said umpire should make his award and umpirage in writing, on or before — the — day of — then next ensuing ; and so as the said arbitra- tion should be held on the — day of — A. D. — , at the office of — in the town of — , with liberty as well to us, the arbitrators aforesaid, as to the said T. W., umpire as aforesaid, to adjourn from time to time, until the said award or umpirage should be made up as afore- said ; the said John Nokes and Joseph Styles thereby consenting and agreeing that their said submission should be made a Rule of the Court of — pursuant to the Statute in such case made and provided ; Now KNOW YE, that we, the said E. F. and G. H.,_the arbitrators 406 PRACTICE. Arbitration. aforesaid, liaving taken upon us the burden of the said reference, did hold said Arbitration, between the said parties, on the — day of — A. D. — [and by adjournment from time to time thereafter, if the fact be sg] at the office of — , in the town of — , being the time and place specified in the said conditions of the said several writings ob- li'intory for holding the said arbitration, and having heard, examined, and considered the allegations, witnesses, and evidences, of both the said parties, do hereby find and award, of and concerning the prem- ises, in manner and form following : First, we do award, arbitrate and determine, by these presents, that the said Joseph Styles, his executors and administrators, do and shall pay to the said John Nokes, his executors, administrators and assigns, on demand, the sum of five hundred dollars. Secondly, we do further award, arbitrate and determine, that the said Joseph Styles do pay the costs of this reference, taxed at — dollars. And lastly, we do further award, arbitrate and determine, that each of said parties do, respectively, on demand, make, execute and deliver, each to the other, a general release, in writing, and under their re- spective seals, of all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, accounts, reckonings, quarrels, controversies, trespasses, damages and demands whatsoever, from the beginning of the world to ihe date of these presents.* Signed and published by the within named E. F. arfd G. H., as their Award, this — day of — A. D. — . E. F., G. H. The Statute requires a true copy of the Award or Umpirage to be given, by the Arbitrators or Umpire, without delay, to both the par- ties ; Swan's Stat. 68, »§. 7. (a) If the Award be by an Urn- to the said Joseph Styles, on request pire ; after reciting as above, say, by him to be made, one mahogany And whereas the said Arbitrators did bureau, one silver tankard, &c., all not make any aAvard in the premises, of which were the goods of one O. within the time for that purpose lim- P. and were by him heretofore sold ited as aforesaid ; and by writing to the said Joseph Styles. under their hands, dated the — day To deliver Writings. — That the of — now last past, did give notice said Joseph Styles shall freely deliv- thereof to me, T. W. umpire as er up to the said John Nokes at his aforesaid, Now, &c. The following dweUing house in — within sixty clauses may be inserted according days from the day of the date hereof, to circumstances. the deeds, leases, bills of exchange. To deliver Goods. — That the said notes of hand, &c., following, to Avit, John Nokes shall freely deliver up \_giving aparticular description,'] PRACTICE. 407 Arbitration. If either party neglects or refuses to comply with the Award, the other party may file the Award, together with the Submis- sion, or Arbitration Bond, with the Clerk of the Court named in the Submission ; or if no particular Court be named in the Submis- sion, then with the Clerk of the Court of Common Pleas of the County where the arbitration was held ; And at the next Term of the Court, if no legal exceptions be made, the party seeking to enforce the Award, on proving the due execution of the submission, or Ar- bitration Bond, and that the other party was furnished with a copy of the Award, at least ten days before the Term, is entitled to a judg- ment, as upon a Verdict of a Jury, if the award be for the payment of money ; but if not, then his remedy is by attachment for contempt, sequestration or execution, as the nature of the case may require ; Swan's Stat. 68, <§. 8, 9, 10, 12. If any legal defects appear in the Award or other proceedings, or if it be made to appear, in proper time, by oath or affirmation, that the Award or Umpirage was obtained by fraud, corruption, or other undue means, or that the arbitrators or umpire misbehaved, the award or umpirage may be set aside, or such other order made thereon as may be just or right; Id. >§. 11. Form of Judgment where by consent no Exception is to be taken. This day came the plaintiff] or defendant, and filed with the Clerk of this Court the award of G. S, and T. S. in pursuance of the order herein made at the last term ; Whereupon It is considered, that, &c. [Enter the judgment as the aicard may be. Affidavit for Judgment, Attachment, Sequestration, &fc. John Nokes, ^ V. > Common Pleas. Joseph Styles, ) A. B. of, &c., makes oath and says, that he is acquainted with the hand writing of the above named Joseph Styles, and has often seen To give a Bond, S,-c.,for the pay- seph Styles in the penal sum of one ■ment of Money. — That the said John thousand dollars, conditioned for the Noke,3 shall, within ten days from the payment of five hundred dollars to time he shall have notice of this the said Joseph Styles, his executors, award, well and truly execute and &c., within six months from the date deliver to the said Joseph Styles, his hereof, {or his note of hand, <^-c.] bond in common form to the said Jo- 408 PRACTICE. Arbitration. him write ; that he is also acquainted with the hand writing of E. F. and G. H. whose names apear at the foot of a certain award between the above parties, now on file in the said Court of Common Pleas, dated, &-c., and has often seen them write ; that the name of Joseph Styles at the foot of the submission to arbitration, [07' arbitration bond,] between the above parties, also on file in the said Court of Common Pleas, dated, &c., is of the proper hand writing of the above named Joseph Styles ; and that the names E. F. and G. H. at the foot of the said award are of the proper hand writing of the said E. F. and G. 11. respectively ; And this Affiant further says, that on — last, [at least ten days before the Term,] he delivered to the above named Joseph Styles, in person, a true copy of the said award, and at the same time demanded of the said Joseph Styles the said sum of five hundred dollars awarded to the said John Nokes in and by the said award, but that the said Joseph Styles did not then, or any time since, pay the same, or any part thereof, to this Affiant, or to the said John Nokes, or to any person on behalf of the said John Nokes, and the same now remains due and unpaid to the said John Nokes ; and that, &c. [setting out the particulars of the award and neglect or refusal to perform it. Form of Judgment on an Award for Money. John Nokes, ^ V. > In Arbitration. Joseph Styles, ) This day came the said John Nokes, by Mr. O. his Attorney, and it appearing to the satisfaction of the Court, that the submission to arbitration [or arbitration bond,] between the above parties, filed in this Court, on — last, was duly executed by the said John Styles, and that a true copy of the award between the above parties, also filed in this Court, on — last, was delivered to the said Joseph Styles, more than ten days before the present Term of this Court ; and it further appearing to the satisfaction of the Court, that the said Jo- seph Styles has not paid the sum of five hundred dollars awarded to the said John Nokes, in and by the said award, though due, demand thereof has been made ; Therefore It is consideiied, that the said John Nokes recover against the said Joseph Styles the said sum of five hundred dollars, so awarded to him as aforesaid ; and also his costs in this behalf expended, taxed to — dollars ; and let the said John Nokes have his execution thereof, according to the form of the Statute in such case made and provided. PRACTICE. 409 Repleader — Bill of Particulars. If the Award is for the performance of any act other than the payment of money, the party disobeying it is to be proceeded against by Attachment, Sequestration, or Execution,as the case may require; Swan's Stat. 69, § 10. For Proceedings on Attachment, See Breach of Injunction in Chancery, Post. Repleader. Where the issues are immaterial, the Court will award a Replea- der; 5 Ohio Rep. 88; 7 do. 253, Part 1st. See 14 do. 204. Af- ter a trial on the merits, a Repleader will not be awarded if the Court can safely pronounce judgment on the Verdict ; 5 Ohio Rep. 115. If issue be taken on an immaterial plea, the Court need not award a Repleader, but may, on the trial, direct the Jury to disregard the plea; and so give judgment at once for the plaintiff; 11 Ohio Rep. 299. Agreements between Parties and their Counsel. An agreement to dismiss a suit is not pleadable ; 1 J. J. Marsh. 220. An agreement that one suit shall abide the event of another, will be enforced ; Id. 309. The acquiescence of the attorney of Record to a submission, and reference to a commissioner to state an account, binds the party ; Treasurer v. Norton, 1 Ohio Rep. 270. Where a cause is settled by agreement of parties, and the ques- tion of costs is referred to the decision of the Common Pleas ; the Supreme Court will not review the opinion of the Common Pleas, unless on suggestion of fraud or imposition ; Emrick v. Armstrong, 1 Ohio Rep. 513. Bill of Particulars : of Demand and Set-off'. The plaintiff, on demand, is required to deliver to the defendant a copy of the Account or Bill of Particulars of the demand, or a copy of the Bill, Bond, Deed, Bargain, Contract, Note, Instrument, or other writing, upon which the declaration is founded, or which he intends to offer in evidence at the trial : And the defendant in Uke manner, is required to deliver to the plaintiff any Deed or Instrument of Writing of which he makes profert in his plea ; or a copy of any Bill, Bond, Deed, Note, Receipt, Bargain, Contract, Instru- 52 410 PRACTICE. Bill of Particulars ment of Writing, or Bill of Particulars of any account or demand which he may intend to offer in evidence ; And if either party refuse such copy, he will not be allowed to use the original at the trial ; Sivan's Stat. 670, ^ 94, 95. In proceedings against watercraft, the Bill of Particulars is to be verified by Affidavit ; Sivan''s Stat. 209, «§> 2. See Process, Ante. 17. The Bill'of Particulars should contain the Items of claim, but need not disclose or copy the proof of them ; Wright, 674. A Bill of Particulars before a Justice is certified on appeal, and the evidence in the Common Pleas is confined to it ; Id. 649 ; 6 Ohio Rep. 305, 388. But the Bill of Particulars, it seems, may, under circumstan- ces, be amended in the Common Pleas ; 6 Ohio Rep. 305, 388. Form of Particulars of Demand. Common Pleas. This action is brought to recover the balance of the following ac- count : [Here set out the Items of the account, giving the defen- dant credit for such sums, ^c. as are not disputed.] The above are the particulars of the plaintiff's demand in this ac- tion ; and he intends at the trial to rely on all the counts in the dec- laration, for the recovery of the same. J. S. PlVff's AtVy. Dated, &,c. To Mr. O. P. Defts' AtVy. When a Subsequent Step cures a Previous Irregularity of the Opposite Party. If the plaintiff" amends his declaration, the defendant may plead over — If he does not, but goes to trial, his plea shall stand as to the amended declaration ; 1 Pet. 165. After verdict, an erroneous si- militer, or none at all, is well enough ; 1 Blackf. 30. In a suit by an administrator, non-assumpsit admits (he character of the plaintiflT; Id. 233. If the defendant, by his plea, supplies a defect in the dec- laration, judgment will not be arrested ; 2 Ohio Rep. 197. After a defendant has appeared, and the cause is continued, it is error to dismiss the suit because no security for costs was indorsed on the original writ : A rule ought to be taken to enter security for costs ; McVikar v. Ludlow, 2 Ohio Rep. 259. PRACTICE. 411 Cure for Previous Irregularity. Where a case, not within the jurisdiction of a justice of the Peace, is appealed, the Court, after declaration filed and plea in, will dismiss it, on motion ; because the Court has no jurisdiction over the case ; Nichol V. Patterson, 4 Ohio Rep. 200. But See 15 Ohio Rep. 483. Pleading to the merits, it seems, is an admission of capacity in the plaintiff to sue ; Commissioners of the Canal Fund v. Perry, 5 Ohio Rep. 56. In cases of foreign corporations, the plaintiffs, under the general issue, are bound to show their corporate character ; but in suits by our own corporations, the Court will ex officio take notice of their cor- porate capacity ; Lewis v. The Bank of Kentucky , 12 Ohio Rep. 132. If an infant sue by prochien amie, but the fact of the minority is not averred, the Court, after verdict, will presume the plaintiff to be of full age : So held on error ; Hanly v. Levin, 5 Ohio Rep. 227. In assumpsit by a corporation, the defendant, under the general issue cannot call in question the corporate character of the plaintiff: Such defence can only be made by special plea in abatement or in bar ; Methodist Ep. Church v. Wood, 5 Ohio Rep. 283. Over- ruled — Lewis v. The Bank of Kentucky, 12 Ohio Rep. 132. In Case, for fraud, in making a fraudulent affirmation, a declaration without any specific charge of fraud otherwise than averring at the close. That by means of the premises the plaintiff falsely and fraud- ulently deceived the defendant, though bad on demurrer, it seems, is good after verdict ; Bank of St. Clairsville v. Beebee, 6 Ohio Rep. 497. Where a demurrer to the declaration is overruled in the Common Pleas, and the defendant, on leave, pleads over, and there is a verdict and judgment: The party, it seems, may go behind the demurrer and assign errors on the whole record ; Headly v. Rohy, 6 Ohio Rep. 521. Where a plaintiff sues in a wrong name before a Justice of the Peace, but on appeal to the Court of Common Pleas, declares in the right one, and the defendant pleads over to the merits, the irregular- ity cannot be reached on Error; Wilson v. Trustees of No. 16, 8 Ohio Pvep. 174. Where, (in a criminal case,) a jury is struck at the instance of the defendant, in term time, the defendant cannot, on error, object that due notice was not given ; Sutton v. The State of Ohio, 9 Ohio Rep. 133. If a plaintiff, after demurrer to a plea in bar overruled in the Com- mon Pleas, takes issue upon it, on leave, he cannot afterwards on Error to the Supreme Court, question the validity of the plea : If the plaintiff wished to take the opinion of the Supreme Court on the Plea, he should have permitted judgment to go against him on over- ruling the demurrer, and then prosecuted his writ of Error ; Mitchel V. McCabe, 10 Ohio Rep. 405. 413 PRACTICE. Bills of Exception. Statement of Case for Court in Bank. On the reservation of a Case, upon the Circuit, the Facts material to its decision are to be drawn up in writing, approved by the Court, filed with the papers and sent with them to tjie Court in Bank : Such statement, however, is not often necessary in questions that arise on Pleadings, or in Chancery cases ; Lessee of Ludlow's heirs v. Park, 4 Ohio Rep. 5. Form of Order Reserving a Case for Court in Bank. A— B— , ^ V. > In Chancery. C— D— . 3 This day came the parties by their Attorneys, and thereupon It is ordered by the Court that this cause be reserved for decision at the next Court in Bank ; with leave to take Depositions, &c. [as the case may be.] Clerk's Certificate or Reservation to Court in Bank. The State of Ohio — County, ss. I, A. C, Clerk of the Supreme Court within and for the county of — and State of Ohio, do hereby certify that the foregoing is a true copy of the Journal entries of said Court in the case therein named, and tiiat the papers hereto annexed are the original papers filed in the same Case. Witness my signature, and seal of office this — day of — A. [Seal.] A. C, Clerk. Bills of Exception.* By the Act of 1845, when a party to a suit in tlie Court of Common Pleas, alleges an Exception to any opinion, order, or judgment of the (a) There are Five ways to get Evidence ; 4th, By Oyer ; and 5th, matters of Fact upon the record ; 1st, By Consent: Black/. 40. An a- By Bill of Exceptions ; 2d, By Spe- greed statement of facts can be made cial Verdict; 3d, By Demurrer to part of the record only by Bill of Ex- PRACTICE. 413 Bills of Exception. Court, it is made the duty of the Judges concurring in such opinion, order, or judgment, if required by the party, during the progress of the case, to sign and seal a Bill containing the exceptions, before the case proceeds ; or if the party consents, the signing and sealing may be suspended until the trial is closed ; but the Bill of Exceptions must be signed and sealed during the term, and when so signed and sealed, it may, if the party desire it, be made part of the record in the suit ; Ohio Stat. vol. 43, p. 80, >§> 3. Bills of Exception may also be taken in actions at law, in the Supreme Court, on any ques- tion of law determined by that Court; Swan's Stat. 691, *§> 156. ceptions ; 16 Ohio Rep. 170. Ei- ther party may avail himself of a Bill of Exceptions taken by the other party, to show that instructions ob- jected to by him were given ; 5 Dana, 295. How taken in Courts of the United States, See 4 Fet. 107 ; 5 do., 185, 199. The Bill must be signed by each of the Judges in per- son, and not by one, as an .Attorney in Fact, of another ; JVright, 73. If signed /. Willey, pro tern., it is a nullity; Id. 115. The Bill of Ex- ceptions should be entered of record, or it will not be noticed ; and it must set forth the matter objected to with such particularity as to show the er- ror complained of; and if it be in the admission or rejection of evidence, so much of the case must be set out as will make the supposed error man- ifest, and show the pertinency of the objection ; Id. 290, 355, 437, 545, 659, 647, 678, 547, 72, 240. In forcible entry and detainer, a Bill of Exceptions tested by a by-stander, is of no av^ail ; Murphy v. Lucas, 2 Ohio Rep. 255. A Bill of Excep- tions presenting a mere abstract pro- position, as applicable to one case as to another, cannot be made the found- ation of a writ of Error : The party excepting must distinctly point out Avherein he supposes himself to be aggrieved ; King v. Kenny, 4 Ohio Rep. 79 ; S. P. McDougal v. Flem- ing, do. 388 ; Lewis v. The State of Ohio, do. 389 ; Osburn v. The State of Ohio,! Ohio Rep. 212, Part 1st ; Lewis v. The Bank of Kentucky, 12 Ohio Rep. 132. It is the business of the party, it seems, and not of the Court, to prepare a true Bill of Exceptions ; State of Ohio V. Todd, 4 Ohio Rep. 351. To a Rule for a Mandamus, to the Court of Common Pleas, to sign a certain Bill of Exceptions, it is suffi- cient answer to say, That the Bill of Exceptions as tendered for signature AA-as not a true one ; lb. A Bill of Exceptions not made part of the rec- ord cannot be noticed on a writ of er- ror ; Baldivin v. The State of Ohio, 6 Ohio Rep. 15. In criminal cases it is the duty of the Clerk, under the Statute, to make the Bill of Excep- tions part of the record ; and if he omits to do it, it seems, the party is not without remedy in the Court where the omission takes place ; lb. A separate paper, signed by three judges, attached to the record, and certified, at the bottom, by the Clerk, as being the original Bill of Excep- tions, but without any date, and with- out any thing showing when or where it was taken, or that it was ever filed, or ordered to be made a part of the record — Such paper the Court, on Error, will not regard ; Jlcheson v. The Western Reserve Bank, 8 Ohio Rep. 117. S. P. Wright, 355. Bills of Exception may be taken to Orders granted in the Court below ; Wright, 588, 130. See Error and Certiorari, Post. 414 PRACTICE. Bills of Exception. But Bills of Exception in that Court may be signed and sealed at any time during the Term ; Id. Bills of Exception are allowed also on jury trials before Justices of the Peace ; Swan's Stat. 535, *^ 135. But not in other cases ; Barto v. Abbe. 16 Ohio Rep. 408. By the Act of 1848, Ohio Stat. vol. 46, p. 87, the presiding judge is recjuired, on application of either party, to reduce to writing the charge to the jury on any point of law involved in the case. Bill of Exceptions for Refusing a Nonsuit. John Nokes, ^ V. > In Case. Joseph Styles, ) In the Common Pleas of — County. Be it remembered, that on the trial of this cause, at the — Term of the said Court of Common Pleas, A. D. — , the said John Nokes to maintain the issue on his part, [or the second or third issue, os the case may be] gave in evidence to the jury aforesaid, That, &c., — and further, That, &c., [stating the entire evidence on the part of the plaintiff;] and thereupon the said John Nokes offering no other or further evidence, the counsel on the part of the said Joseph Styles moved the Judges of the said Court to direct the said John Nokes to become nonsuit, in that behalf. But the said Judges then and there held and affirmed, that the said evidence so given to the jury as afore- said by the said John Nokes, was sufficient to maintain the said issue [or issues] on his part, and thereupon overruled the said motion of the said Joseph Styles in that behalf; and the said Judges by their direction to the said Jury, according to their opinion, left the consid- eration thereof to the Jury aforesaid ; and the Jury aforesaid gave their verdict against the said Joseph Styles upon the issue [or issues] aforesaid : Whereupon the counsel of the said Joseph Styles, inas- much as the matters aforesaid do not appear by the record of the verdict aforesaid, prayed that the said Judges would set their hands and seals to this Bill of Exceptions containing the several matters so proved and given in evidence as aforesaid, according to the Statute in such case made and provided ; and thereupon the Judges afore- said, at the request of the said counsel for the said Joseph Styles, did sign and seal this Bill of Exceptions, pursuant to the aforesaid Statute in such case made and provided.* [To he signed and sealed by the Judges.] (a) By the English Practice, the der our Statute, if the party desires Bill is signed by counsel, and tacked it to be made part of the record, it is to the record immediately after the customary to file it with the Clerk, entry of the pleadings and before the and thus make it one of the original award of the Venire ; 3 Burr, 1692, files in the case. 174G; Bui. N. P. 316, 319. Un- PRACTICE. 415 Bills of Exception. The like, for arresting Testimony from the Jury. John Nokes, ^ V. V In Case. Joseph Styles, ) In the Common Pleas of — County. Be it remembered, that on the trial of this cause, at the — Term of the said Court of Common Pleas, A, D. — , the said John Nokes, to maintain the issue on his part, gave in evidence to the jury afore- said. That, &c. — ; and further. That, &.c. And thereupon the said John Nokes offered to prove that, &c. [hei'e state the evidence arrested from the jury \ ; Whereupon the counsel on the part of the said Joseph Styles interposed, and insisted that the evidence so offer- ed to the said jury by the said John Nokes as aforesaid, was not good or admissible in law upon the issue aforesaid, and then and there moved the said Judges to arrest the same from the consideration of the said Jury. And the said Judges then and there held and affirmed, that the said evidence so offered to be given to the said jury, by the said John Nokes as aforesaid, was not good nor admissible in law, upon the issue aforesaid, and thereupon granted the said motion of the said Joseph Styles, in that behalf, and arrested the said evidence, so offered to the said jury as aforesaid, by the said John Nokes, from the consideration of the said jury, and the said Jury thereupon gave their verdict against the said John Nokes, upon the issue aforesaid. Whereupon the counsel for the said John Nokes made their excep- tions to the said opinion of the said Judges ; and inasmuch as the matters aforesaid do not appear upon the record of the verdict afore- said, the counsel on behalf of the said John Nokes prayed that the said Judges would set their hands and seals to this Bill of Exceptions, containing the several matters proved and offered to be proved and given in evidence as aforesaid, &.c. [ Conclude as in the last Prece- dent.] The like, for Refusing a New Trial for misdirection of the Court. John Nokes, ^ V. > In Case. Joseph Styles, } In the Common Pleas of — County. Be it remembered that on the trial of this cause, at the — Term of the said Court of Common Pleas, A. D. — , the said John Nokes 416 PRACTICE. Appeal. to maintain the issue on his part, gave in evidence to the jury, That, &-C. [stating the plaintijf's evidence] ; and that the said Joseph Styles to maintain the said issue on his part, gave in evidence to tlie jury. That, dec. [stating the defendant's evidence] ; and no other or further evidence being offered by either of tlie said parties, the said Joseph Styles moved the Judges of the said Court, upon the evidence aforesaid, to direct the jury. That, &.c. [setting forth the precise di- rections prayed for] ; wliich directions the said Judges refused to give to the said jury, but on the contrary directed the said jury, That, &c. [setting forth the precise di7'ection] ; and thereupon the said ju- ry gave their verdict against the said Joseph Styles, upon the issue aforesaid. Whereupon the counsel on the part of the said Joseph Styles, moved tlie said Judges for a New Trial, upon the issue afore- said, by reason of the supposed misdirection of the said Judges so given as aforesaid, to the said jury. But the said Judges overruled the said motion, and gave judgment upon the said verdict of the said jury, against the said Joseph Styles. Whereupon the counsel of the said Joseph Styles made their exceptions to the said opinion of the Judges in that behalf; and inasmuch as the matters aforesaid do not appear upon the record of the said motion, the counsel on the behalf of the said Joseph Styles prayed that the said Judges would sign and seal this Bill of Exceptions, &-c. [Conclude as before.] See Erkor — Certiorari. Appeal. An Appeal lies to the Supreme Court, from final decrees in Chan- cery in the Court of Common Pleas ; but no Appeal lies from any Court to the Supreme Court, in any action or proceeding at law ; Ohio Stat. Vol. 43, *§> 2. See Chancery, Post. An Appeal lies to the Court of Common Pleas in the cases fol- lowing : From Justices' Judgments, except in cases of confession ; Swan's Stat. .312. From proceedings in Attachment before Justices ; Id. 82, 83, 91 : And in suits for penalties under the Canal Laws ; Id. 199. From proceedings against water craft; Id. 211. From jury trial before justice ; Ohio Stat. Vol. 42, p. 57. In actions of replevin before Justice ; Ohio Stat. Vol. 44, p. 42. From trial of the right of property taken in execution by a consta- ble ; Ohio Stat. Vol. 43, p. 57. From the decisions of County Commissioners ; Swan's Stat. 207 792, 802, 803, 805. PRACTICE. 417 Appeal. In a contested election ; Swan's Stat. 314, 315. From Commissioners of deceased insolvents ; Id. 377, 378. From Mayor's judgments ; Id. 946. In order to perfect an Appeal from a Justice's judgment, the ap- pellant is required to enter into a recognizance, with security, to the adverse party, conditioned according to law, and on or before the second day of the Term next after the rendition of the judgment ap- pealed from, must file with the Clerk of the Court of Common Pleas, to which the Appeal has been taken, a certified transcript of the pro- ceedings before the Justice. The Clerk on receiving such transcript, enters the cause upon the docket* The plaintiff in the Court below (a) The Appeal cannot be docket- ed at any other Term than that to which the appeal is taken ; 6 Ohio Rep. 83. In this case the Court say, " Perhaps cases may occur in which the Court of Common Pleas ought to allow such appeals to be docketed, on a day subsequent to the second day of the Term to which they were ta- ken. This would be, where, by ac- cident or mistake, and without the neglect of the appellant, or by the contrivance of the appellee, the ap- peal was not docketed on the second day." See Wright, 56S. The right of Appeal from Justices' Judg- ments extends to all cases in form civil, where no prohibition is interpo- sed by the Legislature ; 5 Oliio Rep. 541 ; Wright, 314. Where the de- fendant in an action for a nuisance, before a justice of the peace, appeals to the Common Pleas, he may move to quash the proceedings, for want of jurisdiction, although a declaration has been filed, and he has plead to it: In such case no judgment can be giv- en for costs : The Court has no juris- diction at all over the matter ; JVich- olv. Patterson, 4 Ohio Rep. 200. A suit by a supervisor to recover the penalty for obstructing a road may be appealed to the Court of Common Pleas ; Bittle v. Bay, 5 Ohio Rep. 269. In suits before Justices of the peace to recover militia fines, an Ap- 53 peal lies to the Common Pleas ; Wright V. Hunger, 5 Ohio Rep. 441. An Appeal lies to the Court of Com- mon Pleas from the decision of Coun- ty Commissioners on a contract to erect a Bridge ; Com. of Clermont County V. Robb, 5 Ohio Rep. 490. The appellant is entitled to a trans- cript without paying the costs of the suit ; and if he refuses it, or tender of the lawful fee therefor, an action lies against him ; 1 Ohio Rep. 274. The plaintiff is confined to the Bill of Particulars filed before the Jus- tice; 6 Ohio Rep. 305, 388. On Appeal, the Bill of Particulars, and other original papers, used on the tri- al, the Justice is required to deliver or transmit to the Clerk ; but this does not include the Summons or oth- er process ; 6 Ohio Rep. 388. The process issued by the Justice cannot be made part of the record by oyer ; Id. If the suit is stated on the Jus- tice's docket to be in Case, the plain- tiff may declare in the Common Pleas, in Trespass; and so the change may be from Debt to Assumpsit, and e converso ; but whether from con- tract to tort, or tort to contract — Quaere; 6 Ohio Rep. 388. An Ap- peal lies from a Nonsuit before a Justice ; Wright, 70. Bail for stay of execution will not prevent an Ap- peal ; Id. 314, An order of the Common Pleas quashing an Appeal 418 PRACTICE. Appeal. is plaintiff' in the Court of Common Pleas, and the parties proceed on to trial, in all respects, in the same manner as if the action had been originally instituted in the Court of Common Pleas ; Sloan's Stat. 512, ^ 41, 43, 44. The transcript supplies the place of an original writ and forms a part of the final record. A declaration, and other pleadings, are to be filed, and a regular issue is to be made up, in the same manner, as if the defendant had been brought into the Court of Common Pleas, in the first instance, by a Summons or Ca- pias. If the recognizance be deficient, or the Appeal be otherwise im- properly taken, the Court, on motion, will dismiss the Appeal; but if the surety in the recognizance be insufficient, or his testimony be re- quired by the appellant, or the recognizance be insufficient, in form or amount, the Court on motion, will in their discretion order a change or renewal of such recognizance ; Swan's Slat. 514, <§> 52. Orders and Judgments. Appeal quashed. On motion to the Court, by Mr. O., counsel for the appellee, It is ORDERED, that the appeal taken in this cause be and the same is here- by quashed, for the reason that the recognizance was not taken with- in ten days from the rendition of the judgment : whereupon It is CONSIDERED, that tlic appellee recover of the appellant his costs here- in expended, taxed to — dollars.'' for want of Jurisdiction in the Jus- Justice of the peace ought not to be tice, is erroneous, unless the want of quashed because the transcript omits Jurisdiction appears on the transcript testate any form of action, or be- of the Justice, or is made a part of cause he neglects to send up a bill of the record of the Court of Common particulars ; Ilumiston v. Andersoii, Pleas; M 417. Where a plaintiff 15 Ohio Rep. 556. recovers less than twenty dollars, in a jury trial before a Justice of the (a) The cause for quashing the peace, the defendant cannot appeal ; appeal must be stated in the order ; Glover v. Moses, 13 Ohio Rep. 321. Swan's Slat. 514, § 51. A copy of Filing a declaration in such case this order is lodged with the Justice; gives the Court of Common Pleas no Avho thereupon issues execution in jurisdiction; /(/. Cases appealed the same manner as if no appeal had from Justices of the Peace previous been taken ; Ibid. If an appeal be to the Act of March 4th, 1845, are quashed for want of jurisdiction in not subject to its provisions in the the Justice, there can be no judgment taxation of costs : Baker v. Cory, 15 for costs; Wright, 417. Ohio Rep. 1). An appeal froni a PRACTICE. 419 Appeal. Change of recognizance on appeal, in Common Pleas. On motion to the Court, by Mr. O., counsel for the appellant, and it appearing to the satisfaction of the Court, that the testimony of T. W. who is security in the recognizance for the appeal of this cause, is required by the appellant. It is thereupon ordered, that said re- cognizance be changed, and that X. Y. be substituted in the place of the said T. W. and thereupon the said X. Y. appeared in open Court and acknowledged himself to be indebted to the said A. B. in the sum of — dollars, conditioned for the payment of the debt or damages, and costs that have accrued, or that may be adjudged against the appel- lant in this Court ; and It is further ordered, that the recogni- zance of the said X. Y. be certified to A. S. the Justice of the Peace from whose judgment this cause was appealed, or, that the recognizance of the said X. Y. be recorded in this Court. The like, where the recognizance is insufficient i^ form or amount. On motion to the Court, by Mr. O., counsel for the appellant, and it appearing to the satisfaction of the Court, that the recognizance for the appeal of this cause is insufficient inform, or, amount, [as the case may be] : It is thereupon ordered, that said recognizance be renewed, and thereupon X. Y. appeared in open Court and acknowl- edged himself to be indebted, &c. [ Conclude as in last Precedent. Transcript filed by appellee, and Judgment in his favor in Common Pleas. A. B. this day filed a transcript of the proceedings and judgment of A. S. a Justice of the Peace of — Township, in a certain cause wherein the said A. B. was plaintiff and C. D. defendant, and which cause was appealed to this Court by the said C. D. and thereupon on motion of the said A. B. by Mr. O. his counsel, and it appearing to the satisfaction of the Court, that the said C. D. has failed to deliver a transcript of the proceedings and judgment aforesaid to the Clerk of this Court, and to cause his said appeal to be docketed, within the time required by law. It is ordered, that said cause be docketed in behalf of the said A. B. and thereupon on motion of said A. B.* It 420 PRACTICE. Appeal. IS CONSIDERED by tliG Court, that the said A. B. recover of the said C. D. the sum of — dollars'^ together with his costs in this Court ex- pended, taxed to — dollars.'' Transcript filed by appellee, appeal dismissed and cause remanded. [Proceed as in the last Precedent to the (*) — It is ordered, that said appeal be dismissed, at the cost of the said appellant, and that said cause be remanded to the said Justice of the Peace to be proceeded in as if said appeal had not been taken ; and it is further ordered that the costs of said appeal be paid by said appellant within — days. Judgment of nonsuit against appellant, and final judgment in FAVOR OF APPELLEE ; Sivan^s Stat. 514, *^ 46. This day came the said A. B. by his attorney, and the said C. D. be- ing solemnly called came not nor does lie further prosecute his suit. Therefore It is considered, that the said A. B. (the appellee) re- cover of the said C. D. the sum of — dollars [the amount of the Justice' s judgment ivith interest,] together with his costs in this be- half expended, taxed to — dollars. (b) The amount of the Justice's same Term, may file a transcript, Judgment ; Swan's Stat. 513, § 45. and on his motion the Court will or- der the appeal to be docketed, and (c) If the appellant fail to deliver Avill either render final judgment in the transcript and other papers, if his favor, or dismiss the appeal and any, to the Clerk, and cause his ap- remand the cause to the Justice of peal to be docketed, on or before the the Peace, at the option of the ap- second day of the term next after the pellee ; Jd. appeal is taken, the appellee, at the PRACTICE. 421 Error — Nature of Remedy and when it lies. ERROR. Nature of the Remedy and When it lies. By the Act of 1831, organizing Judicial Courts, the Supreme Court, in term time ; or either of its Judges, in vacation ; has power, on good cause shown, to issue writs of Error, agreeably to the usages and principles of law ; Siuan's Stat. p. 222, *§> 3. By the Practice Act of 1831, all final judgments in the Court of Common Pleas may be examined, and reversed or affirmed by the Supreme Court on Error ; Id. p. 678, >§> 119. By the Act of 1837, final judgments in the Supreme Court may, in like manner, be examined, and reversed or affirmed by the Court in Bank ; Id. p. 690, *§> 153. By the Act of 1845, Error lies, as a matter of course, to the Court of Common Pleas, on motions to direct a nonsuit — to arrest testimo- ny from the jury — or for a new trial by reason that the verdict may be supposed to be against law or evidence, or by reason of any sup- posed misdirection of the Court to the jury ; and also where a de- murrer is overruled and the party afterwards proceeds to trial and a verdict is rendered against him ; Ohio Stat. vol. 43, p. 80, "^ 3, 4. By the same Act, Error also lies coram nobis on final judgments in the Court of Common Pleas ; Id. <§> 5. Error also lies, coram nobis, on final judgments in the Supreme Court; 6 Ohio Rep. 518. By the Act of 1844, no writ of Error lies, after trial or judgment, by reason of any objection to the form of action in which the plaintiff" has declared, or by reason of any technical objection to the declara- tion or other pleadings ; Ohio Stat, vol, 42, p. 72, *§> 2. By the Act of 1846, no writ of Error lies in certain cases where Error has been waived by the party or his attorney ; Ohio Stat. vol. U, p. 34 <§> 2. A writ of Error lies only upon a judgment, or an award in the nature of a judgment ; 2 Bac. Abg. 452 ; Co. Litt. 288, b. ; 4 Dallas, 22 ; Wright, 106, 418, 307. Though the judgment be defective, yet if it be final, and one on which execution can issue, Error lies; 3 Dall. 401. If a party be nonsuited, and a judgment be given against him for costs. Error lies ; 2 Johns. Rep. 9; 6 do. 110; 7 do. 373; or for refusing a Nonsuit, in a proper case ; 19 do. 154. Also on an award for refusing to discharge a prisoner on Habeas Corpus ; 6 Johns. Rep. 337. It is the writ that gives authority to the Supreme Court, and a party cannot waive it, though he may a Citation ; the writ is directed to the Court, not to the party ; Wright, 307, 682. 422 PRACTICE. Error — Wature of Remedy and when it lies. It lies for Error in fact, and the Supreme Court may award a Venire to try the issue ; 14 Johns. Rep. 417 ; 5 Mass. 234 ; Doug- las, 731. In the Courts of the United States, the refusal of the Circuit Court to grant a new trial, cannot be assigned for Error ; 5 Ci'anch, 1 1 ; 6 do. 206, 187; 4 Wheat. 213; 7 Wheat. 248; 11 Wheat. 280. Nor that the Court below refused to reinstate the cause after judg- ment of nonsuit; 5 Cranch, 280; 7 do. 152 : or refused to allow a plea to be amended, or a new plea to be filed ; to continue a cause ; 6 Cranch, 206', 9 Wheat. 516; 11 do. 280 ; 1 Mason, 153. Nor on a judgment of nonsuit ; 4 Wheat. 73. Or refusing to set aside a verdict ; 3 JVash. C. C. Rep. 443. Nor generally upon matters of Practice in the inferior Court ; 3 Pet. 445. It lies on a judgment of restitution in ejectment ; and upon executions ; 6 Pet. 656. Error in fact lies in the Circuit Court of the United States ; 7 Pet. 144 ; 1 McLene, 143 ; 3 Dall. 54. It is a remedy incidental to the Court ; Id. Proceedings on Mandamus are liable to Error ; 7 Pet. 633. Who must join in the writ ; 7 Pet. 402 : See 8 Pet. 526 ; 12 do. QQ. Several persons may have Error on the same judgment ; 1 F. N. B. 21 ; 10 Mass. 69 ; 11 do. 379; 2 Sell. Pr. 405 ; Tidd Pr. 1052; Cro. Eliz. 225,273, 558; I Leon. 261 ; 1 iSfran^e, 233 ; 10 Mass. 73 ; Wright, 737. It may be brought by administrator de bonis non on a judgment against former executor ; Per Spencer C. J, ; 8 Cowen, 333, 346. Judgment against two brothers in gavel- kind, the survivor and the sons of the other may join, as one of the brothers was dead before judgment ; 9 Vin. Abg. 497. Hus- band and wife tenants for life and infant remainder may join in a fine — Infant may sue error alone for non age ; Cro. Eliz. 115 ; Leonard 317. Infant and others may join in Error, and infancy saves all from the Statute of Limitations ; 2 Tyler, 44. Where one sues as heir, the writ need not show how he is heir ; Cro. Jac. 160. The assignee of a judgment may prosecute error in the name of the original party ; but if one becomes privy to a judgment, by opera- tion of law, he sues in his own name, and shows his right by aver- ment ; Wright, 737. A purchaser at Sheriff's sale, who is not a party to the suit, cannot sue Error ; Id. 574. All the defendants in a joint judgment must be j)arties to the writ; 3 Dana, 454. To reverse a several de- cree against several persons there must be several writs ; 1 Marsh. 23. A writ containing too many names may be amended by striking out ; 2 Litt. 145. For Proceedings on Summons and Severance, See 4 Litt. 303. If a joint judgment against two be erroneous as to one, it must be reversed as to both ; 1 Blackf. 26. So judgment against several who appeared by attorney reversed as to all on Error in fact for infancy of one; I Blackf. 13: See also 9 Vin. Abg. .501, 502, and PRACTICE. 423 Error — Nature of Remedy and when it lies. 9 do. 581, 583^, 584. HoWs Rep. 360; Hearnes PL cited, 1 Strange, 234 ; 12 Johns. Rep. 434; 11 Wend. 90; 16 do. 48; 1 Ld. Raym. 600. Reversible in toto though all barred but infants ; Hardin, 365, A joint judgment against husband and wife for an assault commit- ted by both is erroneous ; Wright, 9. If A. sues before a Justice, and on appeal, B. declares for the use of A. and obtains a judgment, it is Error ; Id. 35. The omission of " Junior" in one's name is not fatal on Error ; 11 Wend. 522. It is no Error if the plaintiff be called " J. J. Ligg," or " Stothard & Starky ;" 6 Litt. 209 ; but it is if called " Stapp, Lanin &l Co. ;" 3 Black/. 322. It is Error to give damages accru- ing after suit brought; 9 Pet. 116. The word "plaintiff" in a rec- ord includes all the parties who sued ; 4 Bibb, 251. One cannot assign for Error what the Court did at his own request ; 2 Litt. 145. If the record shows an issue in law was, by consent, submitted to the jury, the judgment will not be reversed on that account ; 3 Litt. 1. Seventeen cents too much is not Error enough to reverse a judg- ment ; 1 Dana, 357. When the judgment is too much a remittitur may be entered in the Court of Error, and then the judgment affirm- ed ; 2 Pet. 321; 3 Black/. 133: See 5 Ohio Rep. 259; Wright, 628. A Judge cannot use language calculated to induce the jury to believe, so and so, as by saying, " It is the plainest case he ever saw," &c. ; 2 Dana, 221. Nor can he direct the jury to find such and such facts as proved ; Wright, 334. But he may state any hypothet- ical case in illustration, and comment on the facts in evidence ; Id. 678. Refusing to permit a witness to be inquired of as to declara- tions of another witness, for the purpose of impeaching the latter, is Error ; Id. 42. One cannot assign for Error what the Court did at his own request ; 2 Litt. 145. A judgment for costs against an infant lessor for want of security for costs is erroneous; 6 I^ana, 441. Refusal to grant a continu- ance may be assigned for Error in Virginia ; 1 Blackf. 51. It is not necessarily Error where no order appears for changing Venue ; 2 Blackf. 61. Want of joinder in demurrer is not Error; Id. 71. A plea of the general issue, though called in the record a demurrer, yet the Court will take it for what it is ; 2 Litt. 157. If after continu- ance, the parties appear and go to trial at the same term, there is no Error, though the continuance be not, in form, set aside ; Id. 402. Declaration against two, and all proceedings afterwards against only one, is Error; 4 Blackf. 155. Refusal to grant a new trial on affi- davit of new evidence is matter of Error; 5 Blackf. 103. When the writ abates by death ; 4 Blackf. 155. If the Court order a nonsuit, the order must be enforced ; and the jury cannot be directed to find for the defendant ; Wright, 334, 337, 376, 420. If the pleadings in a case are lost they should be supplied 424 PRACTICE. Error — Nature of Remedy and when it lies. before trial, and it is Error to order a trial before they are supplied ; Id. 368. The daily minutes of the proceedings of the Court form no part of the Record and Error cannot be assigned on them ; Harvey v. Brown, 1 Ohio Rep. 268 ; S. P. Jl right, 307. A levy on real estate is not atibctcd by a writ of Ejror and supersedeas ; Arnold v. Fuller's heirs, 1 Ohio Rep. 458. An injunction against a judgment does not, per se, operate as a release of Error ; Gano v. White, 3 Ohio Rep. 20. On Certiorari to a judgment in attachment, it may be assigned for Error, in fact, that the defendant was a resident when the attach- ment issued; Hartshorn v. /R/so;j, 2 Ohio Rep. 27 ; S. P. 13 Ohio Rep. 548. It is Error to overrule a demurrer on motion ; a Joinder ought to be put in, and so make up an issue to the Court ; Edmiston V. Edmiston, 2 Ohio Rep. 251. After the defendant has appeared, and the cause continued, it is Error to dismiss the suit, because no security for costs was indorsed on the original writ : There should have been a rule to show cause ; McVickar v. Ludlow, 2 Ohio Rep. 259. In an action on a Sherift''s bond it is Error to take judgment for damages only : It ought to be for the debt, with an award of exe- cution for the damages; Smith v. Commissioners of Licking Coun- ty, 2 Ohio Rep. 312. A judgment will not be reversed for an Error tiiat is manifestly beneficial to the party seeking the reversal ; as where a judgment is for ,^'6500, and the verdict for ,$10,953, though there be no remittitur ; Sterret v. Creed, 2 Ohio Rep. 343 ; 4 Bibb, 180; 13 Ohio Rep. 131 ; Bright, 541, 545. Nor where the Court below amerced the Sheriff, for not executing final process, in a less sum than he ought to have been amerced ; Graham v. Newton, 1 2 Ohio Rep. 210 ; S. P. Ferrell v. Humphrey, 12 Ohio Rep. 112. If error be committed by a Court of last resort, it can be corrected only by motion, or writ of Error coram nobis ; Stiver v. Stiver, 3 Ohio Rep, 19. The death of a defendant in Error, after assignment of Errors and joinder, does not abate the suit, and the Court will pro- ceed on to judgment without making the representatives parties ; Spui'k V. Vangundy, 3 Ohio Rep, 307. A writ of Error may be prosecuted in the name of the casual Ejector ; Roe v. Bank of U. States, 3 Ohio Rep, 26; 3 Bibb, 433; Contra 1 Blackf. 214. Where one of several parties to a writ of Error is within the saving clause of the Statute of Limitations, the case is saved as to all ; llilkins v. Philips, 3 Ohio Rep. 49 ; S. P. Massie's heirs v. JVal- lace, 12 Ohio Rep. 351. A writ of Error to reverse a decree in Chancery is not a continuation of the original suit ; Taylor v. Boyd, 3 Ohio Rep. 337. Where it is assigned for Error, That the Court below rendered a judgment, by default, without any Rule for a plea, the Rules of Court ought to be exhibited, that the Court above may see if they have been violated: ///// v. Kling, A Ohio Rep. 135. On a general judgment of restitution, in Error, execution cannot be PRACTICE. 435 Error — Nature of Remedy and when it lies. sued out, without a scire facias ; Cowen v. Hurford, 4 Ohio Rep. 374. On Error to reverse a judgment of revivor, the vi'hole record is before the Court, and if it appears that the original judgment was for one sum, and the scire facias and judgment of revivor for a less sum, the judgment of revivor is erroneous ; TVolf v. Poundsford, 4 Ohio Rep. 397. Duplicity, in a replication, is no ground of Error, after a verdict finding the replication true ; Richmond v. Patterson, 3 Ohio Rep. 368. To refuse such instructions as are applicable to the case, is Error ; Lewis v. The State of Ohio, 4 Ohio Rep. 389. If evidence is properly received, it is no ground of Error that the Court gave a wrong reason for admitting it ; Westerhaven v. Clive, 5 Ohio Rep. 136 ; S. P. 13 Ohio Rep. 21. In a suit on a writ of Error bond, if the plaintiff, under the plea of non est factum, offers in evr idence the record of recovery set forth in the declaration, the admis- sion of such record is no ground of Error : Such proof, under the pleadings, is supererogatory ; Reynolds v. Rogers, 5 Ohio Rep. 169. Where the parties substitute the Court, in the place of a jury, to try the facts of a case, Error does not lie to the opinion of the Court ; Ih.; 3 Litt. 1 ; Wright, 46. A suit against Sureties in a writ of Error bond, can be sustained without first proceeding against the Principal ; lb. A bond on a writ of Error to a judgment upon scire facias reviving a dormant judgment, covers the judgment revived ; lb. In a declaration on a writ of Error bond, it is not necessary to aver that a writ of supersedeas was sued out ; lb. Where a declaration set out, " That the defendants were summoned to answer to A. B., who, by leave of the Court, appeared by his next friend," &c., there being no averment of infancy, the plaintiff is presumed to be of age; and the allegation of curatorship may be rejected as surplusage : So held on Error. Hanly v. Levin, 5 Ohio Rep. 227. Infancy is Error, not matter for relief in Equity ; Wright, 282. Where in trespass against several defendants, who join in the general issue, but each set up for himself, in separate pleas, matters in justification, and the jury return a general verdict of Guilty, without noticing the justification ; It is Error ; lb. S. P. Powell v. Harter, 5 Ohio Rep. 259 ; Headly V. Roby, 6 Ohio Rep. 521 ; Clark v. Irvin, 9 Ohio Rep. 131. Be- fore the Act of 1834, no amendment was allowed after writ of Error sued ; lb. It is Error to give judgment for a greater sum than the damages demanded in the declaration : but whether the Supreme Court after reversing the judgment, may not give such a judgment as the Court of Common Pleas ought to have done, upon a remittitur of the excess — Qucere ; Powell v. Harter, 5 Ohio Rep. 259. A judg- ment in the Common Pleas, without any pleadings, it seems, will be reversed ; and that, too, though the Pleadings are waived by the par- ties ; Mason v. Embree, 5 Ohio Rep. 277 ; S. P. Ferrell v. Humph- rey, 12 Ohio Rep. 112. Motions to rescind former orders, to set a- 54 426 PRACTICE. Error — JNature of Remedy and when it lies. side levies on execution, for new trials, to amend pleadings, &c., arc addressed to the sound discretion of the Court ; and unless that dis- cretion be abused, or some rule of Law violated, the Supreme Court will not disturb the orders of the Common Pleas on Certiorari or Er- ror ; Bliss V. Ensloiv, 3 Ohio R.ep. 269 ; Fowhle v. Walker^ 4 Ohio Rep. 64 ; Avery v. Rnffin, 4 Ohio Rep. 420 ; S. P. imght, 568, 673, 258. If the Court divide in opinion, the Judgment below is affirmed ; Curtis V. The State of Ohio, 5 Ohio Rep. 324. If the Court gives a wrong opinion upon an abstract question of law not involved in the case, it is no ground of Error ; Reed v. McGrew, 5 Ohio Rep. 375 ; S. P. 13 Ohio Rep. 21. Wiiere there are several counts, and entire damages, and one count is bad — This is fatal on Error; Nelson v. Ford, 5 Ohio Rep. 473. A Bill of exceptions not made part of the re- cord cannot be noticed on a writ of error ; Baldwin v. The State of Ohio, 6 Ohio Rep. 15; S. P. Acheson v. Western Reserve Bank, 8 Ohio Rep. 117. An appeal from a Justice's Court was produced, at the second Term to be docketed — the objection to its being docketed was overruled, and issue made, and prosecution to final judgment — The order docket- ing the appeal may be reversed on Error ; Torbet v. Coffin, 6 Ohio Rep. 33. Writs of Error coram nobis may be allowed by the Su- preme Court, for errors in fact; Daws v. Harper, 6 Ohio Rep. 518. All the issues made up in a case must be found one way or another, else Error will lie ; Headly v. Roby, 6 Ohio Rep. 521 ; S. P. Clark V. Irvin, 9 Ohio Rep. 131 ; Hewson v. Saffin, 7 Ohio Rep. 232, Part 2d; See 14 Ohio Rep. 187. To give final judgment while a plea remains on the record without a replication, is Error: Headly v. Ro- by, 6 Ohio Rep. 521. But where in Replevin the defendant plead non detinet, and property in himself ; and the parties went to trial witiiout any replication to the latter plea, and there was a verdict and judgment for the plaintiff, Error will not lie at the suit of the defen- dant ; for the second plea is virtually tried on the issue under the first plea, and Error will not lie where it appears from the record that the party was not prejudiced by the irregularity ; Fei'rell v. Humphrey, 12 Ohio Rep. 112. And the omission to find an immaterial issue is no Error ; Wright, 645. A plea of the general issue, though called in the record a demurrer, yet the Court will take it for what it is ; 2 Litt. 157. Where a record has been read to tlie Jury, there is no Error in the Court refusing to send such record with the jury to their room ; Osburn v. The State of Ohio, 7 Ohio Rep. 212, Part 1st. On a writ of Error nothing is examinable but what is set out in the record ; lb. An Error in law, to reverse a judgment, must appear on the record, and cannot be presumed ; Smith v. Barber, 7 Ohio Rep. 118, Part 2d; 3 Litt. 14. Nor can it be otherwise proven ; Wright, 72, 240, 290, 340, 381, 383, 563, 724. None but parties or privies can prosecute a writ of error; Eiving v. Hollister, 138, Part 2d. In an action by an Informer to recover the penalty under PRACTICE. 427 Error — Nature of Remedy and when it lies. the Statute against gaming, it is Error to compel a party to a wager to give testimony ; Kuder v. Cronice, 7 Ohio Rep. 249, Part 2d. A separate paper, signed by three Judges, attached to the record, and certified at the bottom by the Clerk, as being the original bill of ex- ceptions, but without any date, and without any thing showing when or where it was taken, or that it was ever filed, or ordered to be made a part of the record : Such paper, the Court, on Error, will not re- gard ; Acheson v. The Western Reserve Bank, 8 Ohio Rep. 117. Where a judgment creditor purchases land under his own judgment, and continues the owner, a reversal of the judgment, restores the land to the original proprietor — Otherwise, if the purchaser is a stran- ger to the Judgment; Hubbell v. Broadwell, 8 Ohio Rep. 120. Where a plaintiff sues, before a justice of the peace, in the name of " Jacob Lodge and James Dunkley, trustees of section 16. township 3j range 6," but on appeal to the Court of Common Pleas, declares in the name of " the trustees of school section 16, township 3, range 6, Butler township, Montgomery county," and the defendant pleads over to the merits ; The irregularity cannot be reached on Error ; Wilson V. Trustees of No. 16, 8 Ohio Rep. 174. A general verdict of not guilty against three, two of whom plead son assault, and the other not guilty, is bad on Error ; Nor can such verdict be amended under the Act of 1835, which authorizes the Court after writ of Er- ror, to amend defects in process or pleading : Nor does it come within the Act of 1835, authorizing the Court, before writ of Error, to amend formal defects not pointed out by special demurrer, and af- ter Error, to amend a. judgment or other proceedings : a verdict does not come within any of these statutes of amendment ; Clark v. Ir- vin, 9 Ohio Rep. 131. If a plaintiflT after demurrer to a plea in bar overruled in the Common Pleas, takes issue upon it, on leave, he cannot afterwards on Error to the Supreme Court question the validity of the Plea; Mitchel v. McCabe, 10 Ohio Rep. 405. But See Ohio Stat. Vol. 43, p. 80. A judgment of the Court of Common Pleas, in a Criminal case, may be reversed in part and affirmed in part ; Lougee v. The State of Ohio, 1 1 Ohio Rep. 68 ; S. P. Bonsai v. The State of Ohio, 1 1 Ohio Rep. 72. There is no Error in rendering the common general judgment against sev- eral defendants, without any certificate of suretyship, though the fact that one of the defendants is a surety, appears on the pleadings — There may be good cause why the Certificate is omitted by the Court: If it were refused in a proper case, and the facts appeared in a bill of Exceptions, it might be corrected ; but bare omission can be correct- ed only in the Court where the judgment was rendered ; Kelly v. Collins, 11 Ohio Rep. 310. If an erroneous charge to the Jury be given on an abstract proposition, or on a point entirely out of any case made by the evidence, and the verdict can be supported by the proof made, the judgment will not be reversed ; Creed v. The Com- mercial Bank of Cincinnati,, 11 Ohio Rep. 489. Under the 142d 428 PRACTICE. Error — Nature of Remedy and when it lies. Section of the Practice Act, if a Declaration has one good count and several bad ones, and there is a general verdict for the plaintiff, Er- ror will not lie : The Court will intend that the damages were com- puted on the good count and not on the bad ones, unless the contra- ry appears on the recored ; Johnson v. Miillin, 12 Ohio Rep. 10 ; S. P. on Default, 13 Ohio Hep. 200. A judgment in favor of a for- eign bank will not be reversed, on Error, because there is no evi- dence in the record that the plaintiffs below proved themselves, on the trial, to be a corporation: If the party intended to avail himself of any such defect of proof, he should have seen that the objection was brought on to the record in some way ; Lewis v. The Bank of Kentucky, 12 Ohio Rep. 132. Nor will a judgment be reversed, be- cause there was no other evidence of the amount of costs for pro- testing a bill of exchange than the indorsement of the costs on the Notarial Certificate ; lb. Nor, because, where the Court was substi- tuted by the parties in the place of a jury, the Court probably, in as- sessing the damages, made a mistake of two dollars, making the dam- ages, ^3,355 50, instead of §3,357 50 ; lb. Where a judgment of a justice of the peace is reversed in the Court of Common Pleas, and the cause continued there for trial and final judgment ; and thereupon a writ of Error is prosecuted, and the cause reserved for decision in Bank ; a motion may be made, in Bank, to strike the cause from the docket, on the ground that no final judgment has been rendered in the Common Pleas; Kelly v. Huntei\ 12 Ohio Rep. 216. Where, by consent of parties, a case is tried by the Court, Error lies the same as if the trial was by jury ; Franklin Bank of Cincinnati v. Buckingham, 12 Ohio Rep. 482 ; S. P. 15 Ohio Rep. 58. A judg- ment may be affirmed as to damages and reversed as to costs ; Bridg- man v. IVells, 13 Ohio P^ep. 43. Under the act regulating our practice, a writ of error cannot be allowed during term, except in Court. So on the circuit, where the Supreme Court is sitting in a county, a writ of error on a judgment in that county cannot be allowed unless made in Court and its allow- ance entered upon the minutes, A case occurred some years since, where, during the term in Bank, an allowance was made, out of Court, by the four Judges, but was afterwards dismissed for that ir- regularity ; Lincoln v. Bishop, 13 Ohio Rep. 249; Ohio Railroad Co. v. The State of Ohio, 10 Ohio Rep. 360. It is Error to include attorney's fees in a judgment confessed ; Martin v. Trustees of the Belmont Bank, 13 Ohio Rep. 250. Error does not lie in favor of defunct corporations; Renick v. Bank of West Union, 13 Ohio Rep. 298. Such writ is a nullity ; Id. Proceedings in partition may be reviewed on I'lrror ; Smith v. Fratt, 13 Ohio Rep. 548. The distinction between Error and Certiorari is well marked in England and in some of the States, but in our practice the difference in the forms of these writs — the mode of allowance—the process — the as- PRACTICE. 429 £rfor — Nature of Remedy and when it lies. signment of errors — and the judgment, is so slight that it has almost disappeared ; and although no case is known, or beheved to exist, where judgments proper have been reviewed by certiorari, or where the proceedings of other public bodies, except courts of common law, have been carried up by writs of Error, yet the acts of courts of record, other than their common law proceedings, are daily examined by writs of error, and several reported cases show the existence of the practice; Smith v. Pratt, 13 Ohio Rep. 550 : See 4 Mass. 670 ; 9 lb. 465 ; 4 Pick. 125 ; Wright's Rep. 673 ; 7 Ohio Rep. part 2, 130, 178 ; 9 lb. 142. It is Error in the Court to assume to find a disputed fact, and on that assumption arrest from the jury competent evidence ; Hastings v. Allen, 14 Ohio Rep. 58. If the plaintift' shows a good cause of action in his declaration, although informally and defectively stated, the judgment will not be arrested after verdict ; nor for this cause will a judgment of the Court of Common Pleas, in pursuance of such verdict, be reversed on Error ; Porter v. Kep- ler, 14 Ohio Rep. 127. In an action of assumpsit, when the verdict in favor of the plaintift' substantially negatives the special pleas, the Court will not reverse the judgment based upon such verdict, though it does not, in terms, find that the allegations in the special pleas are untrue ; Martin et al v. The Clinton Bank of Columbus, 14 Ohio Rep. 187. When a demurrer is overruled and withdrawn, and an issue of fact joined, such demurrer constitutes no part of the record, and will not be considered on Error ; Sullenberger v. Gest et al., 14 Ohio Rep. 204 : But See Ohio Stat. vol. 43, p. 80. If an immate- rial issue be joined, and a repleader not awarded, it is Error ; Id. If matter is plead or replied in due form, but which, if found true by the jury, constitutes neither a bar nor answer, there should be judgment non obstante veredicto in favor of the party whose plea is confessed, and not avoided by the fact found by the verdict ; Id. Error and not certiorari is the proper remedy to review the proceedings of the city council of Cincinnati ; Dixon v. Cincinnati, 14 Ohio Rep. 240. The Supreme Court will not reverse the judgment of the Court of Common Pleas, on the ground that it erred in opinion in refusing to grant a new trial, because the witnesses for the State are not credible ; Whitcomb v. The State, 14 Ohio Rep. 282. A judgment in tres- pass de bonis, against several, one being a minor, is erroneous, and bad as to all; Blanchard et al. v. Gregory, 14 Ohio Rep. 413. A plea of release of Error by the infant, after judgment, and after he comes of age, is bad ; Id. When the facts of a case are submitted to the Court instead of the jury, for decision, its judgment will not be reversed on Error, though unsustained by the weight of testimony ; Markle v. Town Council of Akron, 14 Ohio Rep. 586. In cases of Error to the Supreme Court, no writ of Error is required by the statute ; if allowed in Bank, the official signatures of the Judges to the allocatur, or a copy of the journal entry ; if by two Judges in 430 PRACTICE. Error — Nature of Remedy and when it lies. vacation, their official signatures to the allocatur, furnished to tlic clerk of tiie county, is the proper way of officially informing him of the allowance of the writ ; M%Ue v. Ohio, 14 Ohio Rep. 468. But in cases where writs of Error go from the Supreme Court to the Courts of Common Pleas, the cause is not considered before the for- mer until after the service of a writ, with a citation to the opposite party, or an appearance entered with a waiver of notice ; Id. When, from the whole record it appears, conclusively, that the proper judg- ment was entered, the proceeding will not be reversed on Error, even if the Court mistook the law on some of the propositions discussed during the trial ; Harman v. Kelley, 14 Ohio Rep. 502. In exam- ining a record to ascertain whether a jury has been misled by the instructions of the Court, the whole record should be looked into, in order to ascertain the effect of the instructions, and what must have been understood by the jury; Gano v. Samuel, 14 Ohio Rep. 59:2. It is no objection to the charge of the Court that technical phrases are not employed : it is often necessary to employ phrases more famil- iar to unprofessional men ; and if the jury be not misled, there is no Error in so doing ; Id. When the facts of a case are submitted to the Court, instead of the jury, for decision, its judgment will not be reversed on Error, though unsustained by the weight of the evidence ; Markle v. Town Council of Akron, 14 Ohio Rep. 586. The act of March 12th, 1845, entitled "An act to regulate the Judicial Courts, and the practice thereof," does not require a bond to be filed previous to the issuing of a writ of Error ; such bond need only be filed when designed to operate as a supersedeas ; Barker v. Cory, 15 Ohio Rep. 9. When the facts of a case are submitted to the Court of Common Pleas without the intervention of a jury, and Error intervenes in applying the law to such facts, the judgment will be reversed; Bissell v. Couchaine, 15 Ohio Rep. 58. Where the Er- ror assigned is that the defendant in Error was dead at the rendition of judgment, the executor or administrator must be made party de- fendant ; Cisna's Administrator v. Beach, 15 Ohio Rep. 300. Ser- vice upon the attorney after the death of the party is invalid ; Id. A bond filed in a case in Error, must be filed before the Supreme Court obtains complete jurisdiction of the writ, or it is too late to operate as a supersedeas, arid is invalid cither as a common law or a statutory bond; Bayless v. Belmont Bank of St. Clairsville, 15 Ohio Rep. 606. The omission to instruct a jury on a question of law arising in the case, is not Error, wiiore no instructions are asked by the party ; Taft v. JVildman, 15 Ohio Rep. 123. It is not Error if the Court refuse to charge the jury upon an abstract proposition not appearing in the record to arise necessarily in the case ; Cresinger v. fVelch's Lessee, 15 Ohio Ptcp. 156; S. P. Lexington Insurance Company v. Paver, 16 Ohio Rep. 324. It is no Error if the Sheriff's return of the summons states that a copy was left "at the 7'esidence" of the PRACTICE. 431 Error — Wature of Remedy and when it lies. defendant, instead of " the usual place of residence ;" Walker v. Bank of Circleville, 15 Ohio Rep. 288. Upon an issue in fact, on Error, that the defendant was dead at the time of the rendition of tiie judgment, the administrator must be cited to come in ; Cisna v. Beach, 15 Ohio Rep. 300. A citation served upon an attorney after the death of his cUent, is of no vahdity ; Id. One good count in the declaration is sufficient; Spicer v. Giselman, 15 Ohio Rep. 338. It is Error in the Common Pleas to dismiss an appeal from a justice of the peace, for the reason that his transcript does not state the form of action, or that he has omitted to send up a bill of particulars ; Ilumiston v. Anderson, 15 Ohio Rep. 556. A bond in Error must be filed before the Supreme Court obtains complete jurisdiction of the writ of Error, or it is too late to operate as a supersedeas, and is void ; Bayless v. Bank of St. Clair sville, 15 Ohio Rep. 606. An objec- tion that might have been taken to evidence, on a trial to a jury, but which was not taken, will be considered as waived, and will not be noticed on Error ; iVhite v. Richmond, 16 Ohio R,ep. 5. Error does not lie to reverse the judgment of the Court of Common Pleas in a case arising under the act to provide for the maintenance and support of illegitimate children ; certiorari is a proper remedy ; Baxter v. Columbia Township, 16 Ohio Rep. 56. Error only lies in cases of judgments after the course of the Common Law ; Id. Where a cause is submitted to the Court to try the facts as well as determine the law, the finding of the Court cannot be brought under review by writ of error, unless the evidence be made part of the record by bill of exceptions ; Bank of Virginia v. Bank of ChiUicothe, 16 Ohio Rep. 170. An agreed statement of facts forms no part of the record, unless made so by bill of exceptions ; Id. Upon Error, the finding of the Court will be treated precisely as the verdict of a jury ; Id. The judgment for costs rendered in the Supreme Court upon the affirmance or reversal of a judgment, only embraces the costs accru- ing on Error; Cartwright \. Sole, 16 Ohio Rep. 316. The Supreme Court will not reverse the judgment of ah inferior Court, though the Judge may have charged incorrectly upon a matter not material to a correct determination of the case ; Steamboat Albatross v. Wayne, 16 Ohio Rep. 513. It is Error for the Common Pleas to reverse a Justice's judgment without notice to the opposite party ; Wright, 138. So to make an award a rule of Court in a case pending in Court ; Id. 281. So to quash an appeal because the appellant had given bail for stay of exe- cution before he appealed ; Id. 314. A judgment for costs against an officer prosecuting for a penalty is erroneous ; Id. 332. It is er- ror for the Common Pleas, on nul tiel record, to find there is no such record because of irregularities in the record produced ; Id. 438. After judgment, a replication to the country with a verification im- properly added, will be regarded as surplusage ; Id. 332. If the pro- 433 PRACTICE. Error — JNature of Remedy And -when it lies. ceedings in the Common Pleas are so erroneous that the plaintiff could not have judgment, the judgment for the defendant will be af- firmed ; /(/. 579. The omission of the Presiding Judge to sign the record, the want of form in the record, or the absence of a bill of particulars, will not be regarded on Error ; Id. 708, 70. An exparte judgment on a Scire facias issued by a Justice, under the Act of 1824, returnable ybr^/tu^if//, is erroneous; Id. 85. Errors in a judgment at law will not be corrected in Equity ; Id. 729. Where a Justice's judgment is reversed in the Common Pleas on Certiorari, and the case retained for further proceedings. Error does not lie until the case is finally decided ; Id. 307. Error does not lie to review proceed- ings on a petition for a township road ; Id. 740. A judgment by de- fault, upon a Scire facias to subject real estate to a Justice's judg- ment issued to another County, is erroneous ; Id. 442. So is a Justice's judgment against a non-resident of the County, without personal service ; Id. 710. A writ of Error improperly sued out will be dismissed at the costs of the Attorney who ordered it ; Id. 737. It is Error to rule out evidence tending to prove the issue ; Id. 438, 744, 470. So, to set aside a levy and sale on a junior judg- ment in order to revive the lien of a dormant judgment ; Id. 447. So, to charge the jury to disregard a condition upon which a contract was to be performed ; Id. 545. So, on a judgment by default where the summons was left at the Store of the defendant ; Id, 563. So, if a complaint under the Bastardy Act does not show the prosecutor to be unmarried, or if an order of maintenance be granted without a verdict and judgment ; Id. 564. So, to declare in assumpsit, and take judgment, by default, where the writ is in debt ; Id. 574. So, if in a suit against A. the declaration be against A. and B. and a plea by A., and a verdict against the defendant, without assessing any damages, and the judgment be against the defendant for certain dam- ages; Id. 577. So, to render judgment upon a note for a large sum, with leave to take out execution for a less sum due in equity ; Id. 628. So, if evidence, which ought to be rejected, be admitted by a division of the Court ; Id. 707. So, to refuse a motion in arrest of judgment after a motion for a new trial ; Id. 368. So, for a Judge to receive the verdict of a jury at his chambers ; Id. 383. So, to prosecute bail for the stay of execution on a Justice's docket before execution issued and returned against the judgment debtor ; Id. 449. It is not Error to instruct the jury to disregard testimony instead of withdrawing it from them ; Id. 378. Nor, for refusing leave to poll a jury — which is mere matter of practice ; Id. 659. Nor, if evi- dence be admitted without objection ; Id. 678. Nor, if the original writ be defective inform; Id. 672. Nor, to confirm a Sheriff's sale after the judgment is reversed, if the sale was made before ; Id. 520. Nor, for the Court to mould the verdict of a jury into form ; Id. 645. PRACTICE. 433 Error — From Supreme Court to Common Pleas. JVrits of Error from the Supreme Court to the Court of Common Pleas. By the Act of 1831, Writs of Error cannot be brought, but within five years after the rendition of the judgment complained of; or in case the person entitled to such writ be an infant, feme covert, non compos mentis, or imprisoned, then within five years exclusive of the time of such disabihty ; Swan's Stat. 680, *§> 120. By this Act the writ was granted only upon cause shown ; but un- der the Act of 1845, it is issued as a matter of course. The Statute directs the Clerk of the Supreme Court to issue the writ, upon the pra3cipe of the party, and that there shall be annexed to the writ, and returned therewith, at a day and place therein mentioned, the origin- al files and pleadings, together with a transcript of all judgments of the Court wherein the record remains, the assignment of Error, a prayer for reversal, and a citation to the adverse party, or his attor- ney, signed by the Clerk of the Supreme Court ; the adverse party having at least ten day's notice. The Clerk is also required to take bond and security for the due prosecution of the writ ; and unless such bond be given, no writ can operate as a supersedeas ; Ohio Stat. vol. 43, p. 80, <§> 6. Praecipe for the Writ. — Common Pleas. Judgment in assumpsit at — Term, A. D. — , for Damages — dollars. Costs — dollars. Issue a Writ of Error to the Court of Common Pleas against — , at the suit of — returnable on — next. T. S. AtVyforpVVffin Error. To the Clerk of the Supreme Court of — County. Dated, &c. 55 434 PRACTICE. Error — From Supreme Court to Common Pleas. Form of a Writ of Error to the Court of Common Pleas. The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for the County of — , Greeting : [Seal.] Because in the record and proceedings and also in the rendition of judgment in a certain action of Debt, which was lately in our said Court of Common Pleas before you, wherein A. B. was plaintiff, and C. D. was defendant, error has intervened, as it is said, to the dam- age of — and we being willing, that such error, if any there be, should be corrected, and full and speedy justice done in that behalf, do com- mand you that if final judgment be thereupon given, then without de- lay, you send to us distinctly and openly, under the seal of your Court, and annexed to this writ, an authenticated copy of all judg- ments remaining of record in your Court, in the action aforesaid, to- gether with the original files and pleadings therein ;* so that having the same in our Supreme Court within and for the County of — on the — day of — next, at the Court House in said County, we may cause further to be done thereupon in our said Supreme Court, what of right and according to the laws of the land ought to be done. Witness, A. C. Clerk of the Supreme Court within and for the said County of — this — day of — A. D. — . A. C. Clerk. A Transcript of the final judgment and all other Journal Entries in the cause, is made out by the Clerk of the Court of Common Pleas, which, with the original files and pleadings, the assignment of errors, and citation, is to be annexed to the writ and returned there- with. Form of the Transcript. Transcript of the Journals of the proceedings of the Court of Common Pleas of the County of — between A. B. plaintiir, and C. D. defendant, in a plea of assumpsit. (a) In Writs of Error other than inal files and j)leadings arc not re- those from the Supreme Court to the quired to be sent up, but only an au- Court of Common Pleas, the orig- thenticatcd transcript of the record. PRACTICE. 435 Error — From Supreme Court to Common Pleas. March Term — , to wit, March 10th, 1846. In assumpsit. On motion of the plaintiff this cause is continued at his costs. June Term — to wit, June 25th, 1846. A— B— , ^ V. > In Assumpsit. C— D— , > This day came the parties, and the defendant on motion, has leave to amend his second plea, in thirty days, on payment of costs, and this cause is continued, [setting out, in like manner, all the entries verbatim.] Certificate thereto. The State of Ohio — County, ss. I, A. C, Clerk of the Court of Common Pleas of said county, do hereby certify, that the foregoing Transcript contains all the orders, judgments and other Journal Entries of the said Court of Common Pleas, in the above case ; and that the same are truly copied from the records of said Court. Witness, my hand and seal of office, this — day of — , A. D. — . A. C, Clerk. Assignment of Errors.^ And the said — now comes and says, that in the record and pro- ceedings aforesaid there is manifest error in this, to wit : (a) The assignment of errors is in 486. The plaintiff cannot assign er- the place of a declaration, and may ror in fact and error in law together ; be assigned in any part of the record ; for they are distinct things, and re- Vin. Ahg, (Jl. a.) 4 ; 2 Bac. Mg. quire different trials ; viz : Matters 485; 2 Saund. 101, n. (a). Anas- of fact by a jury; and matters of signment, quod in omnibus erratum law, by the judge before whom the est, is not good, for the Court is not record is removed ; Felv. 58 ; 2 Bac. bound to inquire of errors, if the par- Mg. 487 ; 2 Litt. 162; Wright, ty does not show them ; 2 Bac. Mg. 563. But if errors in law and errors 436 PRACTICE. Error — From Supreme Court to Common Pleas. I. The Court erred in charging the Jury, That, &,c. II. The said verdict is manifestly against the evidence in the case. III. The said judgment was given in favor of the said A. B., whereas by the laws of the land it ought to have been given in favor of the said C. D. ; wherefore the said — prays, that a Citation and Supersedeas may issue, and that the said judgment may be reversed, annulled, and held for nothing, and that he may be restored to all things he has lost by reason thereof. By J. S., his AWy. in fact are assigned together, and the defendant in error pleads, in nidlo est erratum ; this is a confession of the error in fact, and the judgment must be reversed ; for he should have de- murred for the duplicity ; Salk. 268 ; Ld. Fuym. 883, 1005 ; 2 Bac. Mg. 488; 9 Johns. Rep. 159; \o Johns. Rep. 159 ; 15 Johns. Rep. 87 ; Lev. 76. But if an error in fact be ill as- signed, in nidlo est erratum, is no confession of it ; Cro. Car. 421 ; 2 Bac. Mg. 488. When error in fact is assigned, the plaintiff must con- clude with an averment, in order to give an opportunity of trying the fact by the country, if the defendant in error chooses it; 1 Burr. 412; 2 Saund. 101, n. (a). Nothing can be assigned for error which contra- dicts the record ; 1 Str. 684 ; 2 Zf/. Raym. 1411 ; 1 Tills. 85. Or, that which is aided by appearance, or by not being taken advantage of in due time ; 2 Bac. Mg. 230 ; IX Petersd. Abg. 52. As a general rule, a party cannot assign that for error which makes to his own advantage ; 8 Co. 39; 2 Bac. Ahg. 490; 5 Pick. 213; 11 Mass. 279; i) Mass. 532; 2 Ohio Rep. 343 ; 13 do. 131 ; 4 Bibb, 180 ; JFright, 545, 547. This rule does not apply to errors of the Court ; 8 Co. 359 ; 1 Gallis. 26 ; 2 Crunch, 1 26. If a plaintiff assign an error in fact, and fail to prove it, he cannot assign another error in fact ; 7 Pick. 145. A man may assign as many errors in law as he pleases, but he can assign only one error in fact; F. N. B. 20; (E.) 5 Dane's Mg. 73. When a thing in the rec- ord is assigned for error, which is not error, yet the Court will view the record, to see if there be any other in it, and if there be, will reverse the judgment ; because no error should be left on the record. For the same reason, if matter of fact is pleaded in bar of a writ of error, and on issue joined, it is found for the defendant in error, yet the Court may examme the judgment, and if error is found in it, may reverse it ; Vin. Mg., Error, (E. c.) 1, 2, Story PL, by 01. 371. So, if there be any matter in the record to affirm the judgment, which is not pleaded, the Court may take advantage of it to sustain the judgment; Ibid. And where error in fact is assigned the Court will ex- amine the whole record and give judgment accordingly ; 24 Eng. Com. Law Rep. where the old cases are cited and commented on. Wheth- er an assignment of errors can be amended in any case — Quere — 3 Lilt. 162. See Ante. 421. PRACTICE. 437 £iTor — From Supreme Court to Common Pleas. Notice and Citation.^ A Citation, signed by the Clerk of the Supreme Court, must be served upon the adverse party, or his attorney, and Notice given, at least ten days before the commencement of the Term to which the writ of Error is returnable ; Ohio Stat. vol. 43, p. 80 <§> G. Form of Notice and Citation. The State of Ohio, To the Sheriff' of said County, Greeting : We command you that you give notice to A. B. of, &,c., that C. D., of, &c., has sued out from our Supreme Court a writ of error upon a certain judgment of the Court of Common Pleas of the said county of — of the — term thereof, A. D. — for — dollars dam- ages, and — dollars costs, in a certain plea of assumpsit then pend- ing in said Court, wherein the said A. B. was plaintiff and the said C. D. was defendant ; and also that you make known to the said A. B. that he be before the Judges of our Supreme Court within and for the said county of — , at the Court House in said county, on the first day of their next term, to show cause, if any there be, why the said judgment should not be reversed, annulled and altogether held for nothing, and why speedy justice should not be thereupon done be- tween the parties in that behalf. Witness, A. C, Clerk of the said Supreme Court, at — this — day of — , A. D. — . A. C, Clerk. A copy of the Notice and Citation is served by the Sheriff', upon the defendant in error, or his attorney, in the same manner as other mesne process ; and the original is annexed to the writ of error, with the Transcript and Assignment of errors, and the whole is thus de- livered to the Clerk of the Supreme Court. The return of the Judges of the Court of Common Pleas to the Supreme Court, may be in- dorsed upon the Writ of Error, as follows : (a) A Citation may be waived by the party ; but a writ of error cannot ; TFrighf, 307, 682. 438 PRACTICE. Error — From Supreme Court to Common Pleas. Form of the Return. The Answer of the Judges of the Court of Common Pleas within named. An authenticated Transcript of the judgments and all things con- cerning the same, together with the original files and pleadings, with- in mentioned, are annexed to this writ, and herewith returned, as within commanded.* Attest : A. C, Clerk of — Common Pleas. Bond and Supersedeas.'' In England, a writ of error sued out after final judgment, and be- fore execution executed, is a supersedeas of execution, /rom the time of its allowance, and not from the time of the service of the allow- ance ; 1 Salk. 321 ; 1 Burr. 340 ; I B. ^ P. 478 ; 1 T. R. 279. The service of the allowance is only material to bring the attorney into contempt for proceeding to sue out execution afterwards ; 1 T. R. 280; Willes.215; 2 Saund. 101, n. (b). But under our Stat- ute, a writ of error does not operate as a supersedeas, unless the Clerk before signing the citation, takes a bond from the applicant to the adverse party, with one or more good and sufficient securities, in double the amount of the judgment, conditioned for the payment of (a) The original files and plead- the peril of the party ; thus, if a sale ings are not at any time taken from be made, pending a writ of error, the custody of the Clerk of the Com- and the judgment be reversed before mon Pleas, until they are delivered, confirmation of the sale, the purcha- by him, Avith the Writ of Error, to ser nevertheless holds the land ; and the Clerk of the Supreme Court. the plaintiff in error looks for his remedy to the plaintiff in the original (b) A writ of error may be prosecu- suit ; fVright, 520. The giving a ted to efTect, without bond or super- bond does not vacate a levy on real scdeas, and if the judgment be re- estate ; 1 Ohio Rep. 458 : The Act versed, the remedy of the party is of March 1845, does not require a by a writ of restitution : If a bond bond to be filed previous to the issu- be given, the Statute does not re- ing of the writ ; the bond need only quire a supersedeas to issue, though be filed when designed to operate as it may be done on application of the a supersedeas ; 15 Ohio Hep. 9. But plainiifT in error ; it is therefore un- the bond must be filed before the Su- necessary to aver in a declaration preme Court obtains complete juris- upon the bond, that a supersedeas diction, or it is too late to operate as was taken out ; 5 Ohio Hep. 169. a supersedeas ; and in such case the But an omission to give bond, is at bond is void ; 15 Ohio Rep. fiOO. PRACTICE. 439 Error — From Supreme Court to Common Pleas. the condemnation money and costs, in case the judgment of the Court below should be affirmed, in whole or in part ; Ohio Stat. vol. 43, p. SO, § 6, Swan's Stat. 680, <§. 121. Form of Bond. Know_all men by these presents, that we, C. D., E. F., Slc.,'' of, &c., are held and firmly bound unto A. B., of, &c., in the penal sum of — dollars, [double the amount of the judgment] to the payment of which well and truly to be made we do by these presents jointly and severally bind ourselves, our heirs, executors, and administrators ; Sealed with our seals, and dated this — day of — , A. D. — . The condition of the above obligation is such, that whereas the said C. D. has obtained an allowance of a writ of error [or has sued out a writ of error] upon a certain judgment rendered in the Court of Common Pleas within and for said county of — , at the — term thereof, A. D. — , in favor of A. B., and against C. D., for the sum of — dollars, damages, and also for — dollars, costs : Now, if the said C. D. shall pay the condemnation money and costs, in case the said judgment of the said Court of Common Pleas shall be affirmed by the Supreme Court, in whole or in part, then the above obligation shall be void ; otherwise, in full force in law. Taken by me, this — day of — , A. D. — . R. B., Clerk Sup. Court, — County. C. D., [seal.] E. F., [seal.] Form of Supersedeas. The State of Ohio, [Seal.] To the Sheriff of — County, Greeting : Whereas by our certain writ of execution we lately commanded you, that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailiwick, you cause to be levied the sum of — dollars, damages, and — dollars, costs ; which by the judgment of our Court of Common Pleas of the said county of — at the — term thereof, A. D. — , A. B. had recovered against the said C. D. with mterest thereon from — until paid ; and also the further sum of — dollars costs of increase, and accruing costs ; and that you (a) A bond executed by sureties plaintiff in error; 10 Ohio Bep. M5. is good though not signed by the 440 PRACTICE. Error — From Supreme Court to Common Pleas. have that money before the said Court of Common Pleas on the first day of the — term thereof, A. D. — , to render unto the said A. B.; But because the said C. D., before the return of our said writ of exe- cution, has sued out of our Supreme Court within and for the said county of — , our certain writ of error upon the judgment aforesaid, and has given bond and security thereupon, in due form of law, as we are informed by the said C. D., therefore we command you, that you forbear all further proceedings upon our said writ of execution against the said C. D., or in any way molesting the said C. D. on occasion of that judgment ; and have you then there this writ. Witness, A. C, Clerk of our said Supreme Court, at — , this — day of — , A. D. — . A. C, Clerk. Demurrer and Pleas. In nullo est erratum, is the common Plea, and is in the nature of a Demurrer. It is frequently called the Common Joinder, and at once refers the whole matter in law, to the judgment of the Court; 2 Saund. 101, n. (a). Form of Common Joinder. A— B— , ^ V. > In Error. C— D— , ) And the said A. B. now comes and says, that there is no error, either in the record and proceedings aforesaid, or in giving the judg- ment aforesaid : And therefore he prays, that the said judgment may be affirmed, and that his costs may be adjudged to him, &c. By. S. his AtVy. Special pleas to an assignment of errors contain matters in con- fession and avoidance, as a Release of errors, the Statute of limita- tions, &c. ; Tidd. Pr. 1120; 2 Saund 101, n. (a^, to which the plainiiff may reply or demur, and proceed to trial, or argument ; Ibid. When several plaintiffs have judgment against them, and af- terwards bring error to reverse the judgment, a release by one of them is a good bar ; SJVlod. 135 ; 2 Cro. 1 17. But when several are sued, and judgment is recovered against them, ii release by one of them will be no bar to a writ of error by the rest ; 2 Cro. 117 ; 6 Co. 254; Story Fl. 372. PRACTICE. 441 Error — From Supreme Court to Common Pleas. Plea of Release of Errors. In Error. And the said A. B. by E. F. his Attorney, comes and says that the said C. D. ought not further to prosecute or maintain his writ of error aforesaid, against him the said A. B., because he says, that after the judgment aforesaid, in form aforesaid recovered, and before the day of suing out the said writ of error, to wit, on, &c., at, &c., he the said C. D. by the name of, &c. by his certain writing of release, sealed with the seal of him, the said C. D., and to the Court now here shown, the date whereof is the same day and year aforesaid, did remise, release and forever quit claim to the said A. B. by the name of, &c., his heirs, executors, and administrators, all and all manner of error and errors, writ and writs of error, and all benefits and advan- tages of the same, and all misprisions of error and errors, defects and imperfections whatsoever, had, made, committed, omitted, done or suffered in, about, touching or concerning the judgment aforesaid, obtained against him the said C. D. by the said A, B. in the said term of — then last had in the said court of — for — dollars dam- ages, besides costs of suit, or in, about, touching or concerning any warrant, process, declaration, plea, entry, or other proceeding what- soever, of or in any manner concerning the same judgment, as by the said writing of release more fully appears ; And this he the said A. B. is ready to verily ; whereupon he prays judgment if the said C. D. ought further to prosecute or maintain his writ of error aforesaid against him the said A. B. &c. See Fleas in Error coram, nobis, Post. Suggestion of diminution and certiorari. It is a general rule, that after the defendant has pleaded, in nulla est erratum, no diminution can be alleged ; Ci'o. Eliz. 84 ; 1 Leon. 22 ; 1 Salk. 269. But it is also a general rule, that at any time pending a writ of error, whether before or after error assigned ; I Str. 440, or, after in nullo est erratum pleaded ; the Court may, ex officio, at their discretion, award a certiorari ; F. N. B. 58, n. (a) ; 2 Ld. Raym. 1005; 2 Bac. Abg. 205; 2 Saund. 101, n. (a) ; 5 Danes Abg. 88. The Court, at any time, may ex officio, award a certiorari to in- form their conscience, to affirm, but not to reverse a judgment ; 1 Black/. 32. 56 443 PRACTICE. Error — From Supreme Court to Common Pleas. The suggestion of diminution, is the assigning of defects in tl»e record returned from the Court below; Tidd. Fr. 1224, 8th edit.; IX. Petersd. Abg. 51. A— B— , ) V. > In Error. C— D— , ) And the said A. B. or C. D. now comes and suggests to the Court here, that in the transcript of the record returned in this case from the Court of Common Pleas, there are certain defects, as follows, to wit, [hej-e set forth particularly the defects,] Wherefore the said A. B. prays the allowance of a Certiorari for a true transcript, of the record and proceedings of the Court below, &-c. By S. his AtVy. Order of Allowance. C— D— , ^ V. > In Error. A— B— , > On motion to the Court, by Mr, O. counsel for the plaintiff in er- ror, it is ordered that a Certiorari issue to the Court of Common Pleas for a true transcript of the record and proceedings in this cause, in the said Court of Common Pleas, returnable on — next. Form of certiorari on suggestion of diminution ; jF. N. B. 25. The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for said County, Greeting : Whereas, at the suit of C. D. suggesting to us, that error had in- tervened, in the record and proceedings, and also in the giving of judgment, in a certain action of debt which was lately pending in our said Court before you, wherein A. B. was plaintiff and the said C. D. was defendant, we heretofore commanded you, that if judgment there- of was given, then without delay you should send to us, under the seal of your Court, distinctly and openly, an authenticated transcript of the record and proceedings aforesaid, with all things concerning the same, so that we might have them in our Supreme Court, within and for the said County of — on the — day of — , at the Court PRACTICE. 443 Error — From Supreme Court to Common Pleas. House in said County ; And now in behalf of the said C. D. it is shown to us, that though you may have sent to us, in our said Su- preme Court, at the time and place aforesaid, an authenticated trans- cript of the record and proceedings aforesaid, in some part thereof; yet other parts of the same, and also other things touching them, still remain before you, to be sent: Therefore we command you, that without delay you send to us, under the seal of your Court, distinctly and openly, a transcript of the record and proceedings aforesaid, and also of all things touching them, which, as is before said, remain be- fore you to be sent ; and this writ ; so that having the same in our said Supreme Court, at the Court House aforesaid, on — next, we may cause to be done thereupon what of right and according to the laws of the land ought to be done. Witness, &.c. This writ is taken to the Clerk of the Court of Common Pleas, who makes out a corrected transcript of the original record, and cer- tifies the same under the seal of the Court, and then indorses the writ as follows :^ The answer of the Judges of the Court of Common Pleas, within named. A true Transcript of the record and proceedings within mentioned, with all things touching the same, is herewith returned at the day and place within mentioned, in a certian record to this writ annexed, as within commanded. Attest : R. C. Clerk — Com. Pleas. The writ thus indorsed, is annexed to the transcript, and filed with the Clerk of the Supreme Court. In England, a Certiorari is often sent down to certify as to certain specific diminutions or defects in the record; Lill. Ent. 556. The form of such writ is as follows : Form or certiorari, on suggestion of specific diminutions. The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for the said County of — , Greeting : Because in the record and proceedings, and also in the giving of (a) The complete record may be 1st. See also, Complete Record in corrected by the files and Journals of Assumpsit, Ante. 183, note (a), the Court ; 7 Ohio Rep. 257, Part 444 PRACTICE. Error — From Supreme Court to Common Pleas. judgment, in a certain action of debt, which was lately in our said Court before you, wlierein A. B. was plaintitV, and C. D. was defen- dant, error had intervened, as it is said, to the damage of the said C. D. a transcript of the record of which said proceedings and judgment before our Supreme Court in the said County of — to correct the errors in the same, we have heretofore caused to be brought by our writ of error: and because the said Supreme Court, for certain rea- sons them moving, before they proceed in this behalf are willing to be informed whether these words, " his certain note'' between this word, " by " and these words, " under his hand,'' are inserted in the said first count of the said declaration ; and whether these words, "pff2/ them" between these words, " j)romise to," and these words, " or order," are inserted in said second count of the said declaration : and whether these words, " next term," between these words, " of our," and these words, " to answer," are inserted in the said writ of summons. [Proceed in like manner to specify all the defects, omis- sions, mistakes, &fc.] : Therefore we command you, that the record of the said^rs^ and second counts of the said declaration, and of the said writ of summons, being searched, what of said words so as aforesaid omitted or inserted therein, you shall find, to the Supreme Court aforesaid, you without delay certify, together with this writ. Witness, &-c. This writ is delivered to the Clerk of the Court of Common Pleas who searches the record, and indorses upon the writ as follows : The answer of the Court of Common Pleas within named. We do hereby certify, that the record of the saidj^r^? and second counts of the within named declaration, and of the within named writ of summons, being searched, we do find, that the words, "Ms certain note," between the word " by," and these words, " under his seal," in the said first count of the said declaration, are inserted ; and that these words, " pay them," between these words, " or order," and these words, "promise to," in the said second count of the said declara- tion, are inserted ; and that these words, " next term," between these words, " of our," and these words, " to answer," in the said writ of summons, are wholly omitted ; as we are within commanded. Attest: T. S. Clerk of — Com. Pleas. The writ, thus indorsed, is filed with the Clerk of the Supreme Court ; and the indorsement, in all the subsequent proceedings, is considered as part of the original transcript sent up with the writ of error. PRACTICE. 445 Error — From Supreme Court to Common Pleas. Amendments. By the Act of 1835, the Supreme Court may, on terms, permit either party to amend, after error or certiorari brought, any formal defect, in the same manner as the Court where the judgment was orig- inally rendered, might have done before error brought ; Swan's Stat. 687, *§, 141. See also, 2 Strange, 863, 902; 2 Ld. Raym. 1587; 2 Johns. Rep. 184; 1 Gallison, 257, 261 ; 1 Black/. 251. But a verdict cannot be amended after error brought under the act of 1835; 9 Ohio Rep. 131. Judgments.'* When a Judgment is reversed in the Supreme Court, in whole or in part, that Court may proceed either to render such judgment as the Court of Common Pleas should have rendered, or remand the cause to the Court of Common Pleas, by writ of procedendo, for such Judgment ; and the Supreme Court cannot issue execution in causes brought before them on error, and in which the Judgment is reversed in whole or in part, but a special mandate is sent down to the Com- mon Pleas to award execution ; Swan's Stat. 121. When the Judg- ment is reversed, the plaintiff in error recovers his costs ; when the Judgment is affirmed, the defendant is entitled to his costs ; and when the Judgment is reversed in part and affirmed in part, the costs are equally divided between the parties; lb. '§> 107. (a) Where the Court of Common are subject to the inspection of the Pleas ought to have reversed a Jus- Supreme Court, and may be used to tice's judgment on Certiorari, but did enforce the party's rights, by proce- not, the Supreme Court, on Error, dendo or otherwise, although errors may do it ; Wright, 85. When the may be improperly assigned upon judgment below is in favor of the them ; /(/. 589. If a case be re- defendant for costs, " saving and re- moved from a Justice into the Corn- serving, by consent of parties, his mon Pleas and reversed, it should be rights as in case of nonsuit," the set for trial on its merits ; and if the Court on reversing the judgment will Common Pleas erroneously affirms render a judgment of nonsuit, and the Justice's judgment, and the judg- leave each party to pay half the costs ment of affirmance is brought into in Error ; Id. 489 ; S. P. Id. 724. the Supreme Court and reversed, the Where the judgment is affirmed in Supreme Court may remand the case part and reversed in part, the costs with instructions to the Common are equally divided ; Id. 332, 577, Pleas to enter a judgment of reversal, 628. If on Certiorari, proceedings and set the case down for trial in that of the Court of Common Pleas are Court ; Id. 370. brought into the Supreme Court, they 446 PRACTICE. Error — From Supreme Court to Common Pleas. By the Act of 1846, on Judgment of affirmance, a penalty is awarded of five per cent, upon the amount due, unless the Court, upon their Minutes, signify that there was reasonable ground for prosecuting tiie writ ; Ohio Stat. Vol. 44, p. 34, >§> 1. No. 1. Judgment of Affirmance, on Default. A— B— , ^ V. > In Error. C— D— , ) This day came the said C. D. by Mr. O., his attorney, and the said A, B. though solemnly called, came not, nor doth he further prosecute his writ, but makes default ; Therefore It is considered, that the said A. B. take nothing by his writ aforesaid, and that the judgment aforesaid, in form aforesaid given, be in all things affirmed, and stand in full force and effect : And It is further considered, that the said C. D. do recover against the said A. B., as well his costs in this behalf expended, taxed to — dollars, as also — dollars," five per centum penalty on the amount due to him on the Judgment aforesaid, now adjudged to him by the Court here, according to the form of the Statute in such case made and provided, which said costs and pen- alty in the whole amount to — dollars : And It is ordered, that a special Mandate be sent down to the said Court of Common Pleas to carry this Judgment into execution. No. 2. Judgment or Affirmance, on Hearing. A— B— , ^ V. > In Error. C— D— , ) This day came the parties by their Attornies, and thereupon this cause came on to be heard as well upon the transcript of the judg- ments and other proceedings between the said parties in the Court of Common Pleas of — county, and the original files and pleadings, brought here by writ of error from this Court to the said Court of Common Pleas,'' as also upon the matters by the said A. B. herein (a) Five per cent, upon the amount ses except on error from the Supreme of the Judgment below and interest Court to the Common Pleas. In all upon it ; Ohio Stat. vol. 44, p. 34. other cases, the Court above have before them only an authenticated (b) The recital "original files and transcript of the record of the pro- pleadings " is to be omitted in all ca- ceedings below. PRACTICE. 447 Error — From Supreme Court to Common Pleas. assigned for error, and the same being seen and by the Court now here fully understood, and mature dehberation being thereupon had, it appears to the Court here, that tiiere is no error, either in the record and proceedings aforesaid, or in giving the judgment aforesaid ; Therefore It is considered that the judgment aforesaid in form aforesaid given, be in all things affirmed, and stand in full force and efiect ; * And It is further considered, that the said C. D. do recover against the said A. B., as well his costs in this behalf expend- ed, taxed to — dollars, as also — dollars, five per centum penalty on the amount due to him on the judgment aforesaid, now adjudged to him by the Court here, according to the form of the Statute in such case made and provided, which said costs and penalty in the whole amount to — dollars : And It is ordered that a Special Mandate be sent down to the said Court of Common Pleas to carry this judgment into execution. [If the penalty is not allowed, proceed as above to the * a7id then say,] " And It is further considered, that the said C. D. do re- cover against the said A. B. his costs in this behalf expended, taxed to — dollars : And It is ordered that a Special Mandate be sent down to the Court of Common Pleas to carry this judgment into execution. The Court find reasonable ground for prosecuting this writ of Error." No. 3. Judgment of Reversal. A— B— , ^ v. >In Error. C— D— , ) This day came the parties by their Attorneys, and thereupon this cause came on to be heard as well upon the transcript of the judg- ments and other proceedings between the said parties in the Court of Common Pleas of — county, and the original files and pleadings,* brought here by writ of Error from this Court to the said Court of Common Pleas, as also upon the matters by the said A. B. herein assigned for Error, and the same being seen and by the Court now here fully understsod, and mature deliberation being thereupon had, it appears to the Court here that in the record and proceedings afore- said, and in giving the judgment aforesaid there is manifest error in this, to wit, That, &.c., — and also in this, to wit. That, &c., — [spe- cifying the several grounds of Error ;] Therefore It is considered (a) See Ante. 446, note (b). 448 PRACTICE. Error — From Supreme Court to Common Pleas. that the judgment aforesaid, for the errors aforesaid, be reversed, an- nulled and altogetiier held for nothing ; and that the said C. D. be restored to all things which he has lost by occasion of the said judg- ment, and recover against the said A. B. his costs in this behalf ex- pended, taxed to — dollars.* And It is ordered that a Special Man- date be sent down to the said Court of Common Pleas to carry this judgment into execution. No. 4. The like, and Final Judgment for plaintiff in the Supreme Court. Enter the judgment of Revei'sal as in the last Precedent to the * aiid then say, And thereupon the Court here, according to the Stat- ute in such case made and provided, proceeding to render such judg- ment upon the premises as ought to have been rendered by the said Court of Common Pleas, It is considered, that the said A. B. do recover against the said C. D. the said sum of — dollars his debt aforesaid, and — dollars for his damages by reason of the detention thereof, and also his costs in that behalf expended, taxed to — dol- lars : And It is ordered that a Special Mandate be sent down to the said Court of Common Pleas to carry this judgment into execution No. 5. Judgment of Reversal, and cause remanded by Pro- cedendo FOR Final Judgment. Enter the Judgment of Reversal as in No. 3, Ante. 447, and then say, And thereupon It is ordered that a Special Mandate be sent down to the said Court of Common Pleas to carry this judgment into execution. And It is further ordered that this cause be remand- ed to the said Court of Common Pleas by writ of Procedendo, com- manding the Judges of the said Court to proceed, according to the form of the Statute in such case made and provided, with what speed they can, to overrule the said demurrer of the said C. D. to the said declaration of the said A. B,, and thereupon to render final judgment in favor of the said A. B. against the said C. D. for the said sum of — dollars, his debt aforesaid, and — dollars for his damages by rea- son of the detention thereof, and also for his costs in that behalf ex- pended, taxed to — dollars, [or, to pi'oceed in said cause with what speed they can, in such manner, according to the laws of the land, as they shall see j)roper, the said writ of error to the contrary not- withstanding, as the case may be.] PRACTICE. 449 Error — From Supreme Court to Common Pleas. No. 6. Judgment of Reversal, in Part, and Affirmance, in Part. In Error. This day came the parties, by their Attorneys, and this cause came on to be heard as well upon the transcript of the judgments and other proceedings between the said parties in the Court of Common Pleas of — County, and the original files and pleadings," brought here by writ of error from this Court to the said Court of Common Pleas, as also upon the matters by the said A. B. herein assigned for error, and the same being seen and by the Court now here fully understood, and mature deliberation being thereupon had, it appears to the Court here, that in the record and proceedings aforesaid, and in giving the judg- ment aforesaid, there is manifest error in this, to wit. That, &c., [specifying the errors,] And that there is no other error either in the record and proceedings aforesaid, or in giving the judgment aforesaid; Therefore It is considered, that the judgment aforesaid, in form aforesaid given, so far as it respects the sum of, &c., — , and also so far as it respects, &,c., [specifying the parts reversed,] for the errors aforesaid, be reversed, annulled, and altogether held for nothing ; and that the said C. D. be restored to all things which he has lost by oc- casion of the said judgment in those respects ; And It is further CONSIDERED, that tlic judgment aforesaid, in form aforesaid given, be in all other things affirmed, and stand in full force and effect ; and that the said A. B. recover against the said C. D. one moiety, and the said C. D. against the said A. B. the other moiety, of the costs by them respectively in this behalf expended, taxed to — dollars. And It IS ORDERED that a special Mandate be sent down to the Court of Common Pleas to carry this judgment into execution. Mandate on Judgment of Affirmance. The State of Ohio, To the Honorable, the Judges of the Court of Common Pleas within and for the County of — , Greeting : Whereas, in a certain action of Assumpsit lately before you, wherein A. B. was plaintiff and C. D. was defendant, the said C. D., (a) See Ante. 446, note (bj. 57 450 PRACTICE. Krfor — From Supreme Court to Common Pleas. on the — day of — A. D. — , by your consideration in that behalf, recovered against the said A. B. the sum of — dollars damages, and — dollars costs of suit ; And whereas, afterwards, by our certain writ of error, we caused a transcript of the judgments and other proceed- ings before you, between the parties aforesaid, with the original files and pleadings^ in the action aforesaid, to be brought into our Supreme Court, within and for the said county of — , whereupon such pro- ceedings were had in our said Supreme Court, that at the — Term thereof, A. D. — * it was considered that the judgment aforesaid, by you in form aforesaid given, be in all things affirmed, and stand in full force and effect ; and that the said C. D. recover against the said A. B. as well — dollars, his costs by him in that behalf expended, as also — dollars, five per centum penalty on tiie amount due to the said C. D. on the judgment aforesaid, then and there adjudged to him by our said Supreme Court, according to the form of the Statute in such case made and provided, which said costs and penalty amount in the whole to — dollars ; and that a special Mandate be sent to you to carry the said judgment of our said Supreme Court into execution. Therefore we command you that without delay you cause the said C. D. to have execution against the said A. B. for the moneys aforesaid, pursuant to the Statute in such case made and provided ; the said writ of error to the contrary notwithstanding. Witness, A. C, Clerk of our said Supreme Court, at C, this — day of — , A. D. — . [Seal.] A. C, Clerk. The like, on Judgment of Reversal. Proceed as in the last Form to the (*) and then say, It was consid- ered that the judgment aforesaid, by you in form aforesaid given, be reversed annulled and altogether held for nothing ; and that the said (a) An execution upon a judg- in making up a complete record, may ment of the Supreme Court, issued attach a special Mandate to each from the Court of Common Pleas case ; Ohio Rep. 409, A Man- without a Mandate, it seems, is void; date "to carry the judgment into ef- A general Order of the Supreme feet," is the same as one " to award Court, that "all causes removed into execution ;" Id. The Mandate is to the Court from the Common Pleas, be made out by the Clerk of the Su- in which the Court have, during the preme Court, in each case, and de- Term, entered judgment, or pro- livered to the party interested, who nounced decrees, be certified to the has a right to it on application and Court of Common Pleas, with a spe- payment of the Clerk's fees ; Wright, cial Mandate to carry the same into 588. See Ante. 446, note {b). execution," is valid ; and the Clerk, PRACTICE. 451 Ettot — From Supreme Court to Common Pleas. C. D. be restored to all things which he had lost by occasion of the said judgment, and also recover against the said A. B. — dollars, for his costs by him in that behalf expended ; and that a special Mandate be sent to you to carry the said judgment of our said Supreme Court into execution. Therefore we command you that without delay you cause the said C. D. to be restored to all things which he has lost by occasion of the said judgment, and that he have his execution against the said A. B. for the said sum of — dollars for his costs aforesaid ; the said writ of error to the contrary notwithstanding. Witness, &c. On producing the Mandate to the Court below the party is entitled to an order for its execution. Form of the Order.'' On Mandate from the Supreme Court. This day came the said A. B. by Mr. O. his Attorney, and filed with the Clerk of this Court a Special Mandate from the Supreme Court of this County, dated, &c., commanding the Judges of this Court that they cause execution to be issued upon a certain judgment of this Court of the Term of — , in favor of the said A. B. against the said C. D. for — dollars damages, and — dollars costs ; and also for — dollars costs adjudged by the said Supreme Court to the said A. B. upon a certain writ of error prosecuted in that Court by the said C. D. upon the judgment aforesaid ; and also for the further sum of — dol- lars, five per centum penalty on the judgment aforesaid, also adjudged by the said Supreme Court to the said A. B. upon the writ of error aforesaid, which said costs in error and penalty amount in the whole to — dollars ; and thereupon, on motion of the said A. B. It is ORDERED, that the said A. B. have his execution for the moneys afore- said pursuant to the said Mandate. (a) In the Circuit Court of the cution issue on all the above Man- United States for the Ohio District, it dates, on appHcation of the parties ; is customary to enter a Mandate ver- Id. ; See Wright, 588. But should batim, on the Journals of the Court, it become necessary, in any case, to This however seems to be unneces- take steps against the Court below, sary in the Courts of the State ; 6 to eyiforce obedience to the Mandate, Ohio Rep. 409. Sometimes all the it may be convenient to enter the cases of a Term are put down to- Mandate at length, or at least to re- gether on the Journals of the Court, cite the substance of it as in the and a general order made, That exe- above Form. 452 PRACTICE. Error — From Supreme Court to Common Pleas. Writ of Procedendo.* The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for the said County of — , Greeting : Although lately we commanded you, by our certain writ of error, that you send to us, in our Supreme Court within and for the said County of — , an authenticated copy of all judgments remaining of record, in your said Court of Common Pleas, in a certain action of debt, wherein A. B. was plaintiff, and C. D. was defendant, with the original files and pleadings therein,'' so that having the same in our said Supreme Court on the — day of — A. D. — , at the Court House in said County, we might cause further to be done thereupon, what of right and according to the laws of the land ought to be done; yet we, being now moved for certain causes, in our said Supreme Court, do command you, that in the action aforesaid you proceed, with what speed you can,* in such manner, according to the laws of the land, as you shall see proper ; the said writ of error to the con- trary notwithstanding. Witness, A. C. Clerk of our said Supreme Court, at C. this — day of — A. D. — . A. C. Clerk. The like, with Special Instructions. Proceed as in the last Precedent to the (*) and then say : To overrule the said demurrer of the said C. D. to the said declaration of the said A. B. and thereupon to render final judgment in favor of the said A. B. against the said C. D. for the said sum of — dollars, his debt aforesaid, and — dollars for his damages by reason of the de- tention thereof, and also for his costs in that behalf expended, taxed to — dollars ; the said writ of error to the contrary notwithstanding. Witness, &c. (a) There seems to be no time lim- Court below have no discretion. The ited for presenting a Procedendo or Mandate comes with the obligation of Mandate to the Court below; T fright, authority and must be obeyed; Id. 588. A year's delay does not work See Mandate, Ante. 451, note (a). a discontinuance of the cause ; Id. On presentation of a Mandate and (b) See Ante. 446, note (b). motion to reinstate the cause, the PRACTICE. 453 Error From Supreme Court to Common Pleas. The writ being produced to the Court of Common Pleas, the cause is reentered upon the docket, under the same title as before the judg- ment was reversed ; and thereupon further proceedings are had pur- suant to the command of the writ ; Wright, 588. Writ of Restitution. On judgment of reversal, the party is entitled to a writ of Resti- tution, but unless the judgment specify the precise amount to be re- stored, a Scire Facias is first necessary ; 4 Ohio Rep. 374. See Writs of Scire Facias, Ante. 378, No. 25. Form of Writ op Restitution. The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately, that is to say, at the — Term of our Court of Common Pleas within and for the said County of — , A. D. — , by our writ, and by the judgment of the same Court, recovered against C. D. — dollars for his damages, and — dollars for his costs, where- of the said C. D. is convicted, as by the record and proceedings thereof, which for certain causes of error we lately caused to be brought into our Supreme Court within and for the said County of — , appears to us of record : And by reason of divers errors in the said record and proceedings, and also in giving the judgment aforesaid, we have reversed and totally annulled the same ; and we have further considered in our said Supreme Court, that the said C. D. be restored to all things which he hath lost on occasion of the judgment afore- said : And whereas, for having execution of the judgment of restitu- tion aforesaid, our Special Mandate was sent down from our Supreme Court aforesaid to our said Court of Common Pleas, according to the form of the Statute in such case made and provided : And whereas, the said A. B. on pretence of the said former judgment, hath had his execution of the damages aforesaid, and is yet possessed thereof, as we are informed ; Therefore, we command you, that if it can be made appear to you, that the said A. B. hath had his execution of the damages aforesaid, by virtue of the judgment aforesaid, then without delay you cause the said C. D. to have full restitution of the said sum of — dollars, the damages aforesaid, and — dollars, the costs afore- said, with legal interest thereon from — [date of the original judg- ment] ; and if you cannot cause him to have restitution thereof, then that you cause the same to be levied of the goods and chattels, and 454 PRACTICE. Error — From Court in Bank to Supreme Court. for want thereof, of the lands and tenements of the said A. B. in your bailiwick, and that you cause that money to be dehvered with- out delay to the said C. D. ; And in what manner you shall execute this writ, make appear to our said Court of Common Pleas on the first day of their next Term. Witness, A. C. Clerk of our said Court of Common Pleas, at C. this — day of — , A. D. — . A. C. Clerk. WRITS OF ERROR FROM THE COURT IN BANK TO THE SUPREME COURT.'^ Writs of Error from the Court in Bank to the Supreme Court are to be prosecuted within one year after the rendition of the judgment sought to be reversed, and are not issued, as a matter of course, but only upon the allowance of the Court in Bank, when in session, or by two Judges of the Supreme Court, in vacation ; Swan's Stat. 690, <^ 153. Order of Allowance by the Court in Bank. Assumpsit from — County. On motion of the said .C D. a writ of error is allowed in this cause. The like, by Two Judges in Vacation. On application of A. B. we allow a writ of error in this cause, this — day of — > A. D. — . [Indorsed on the hack of the Transcript.] J. S., J. N. Judges of the Supreme Court. (a) For general Rules regulating writs of Error, See Ante. 421. PRACTICE. 455 Error — From Court in Bank to Supreme Court. FORJI OF THE WrIT."^ The State of Ohio, To the Honorable the Judges of the Supreme Court within and for the County of Hamilton, Greeting : [Seal.] Because in the record and proceedings and also in the rendition of judgment upon our certain writ of error which was lately in our said Supreme Court before you, wherein A. B. was plaintiti", and C. D. was defendant, error has intervened, as it is said, to the damage of the said A. B. ; and we being willing that such error, if any there be, should be corrected, and full and speedy justice done in that behalf, do command you, that if final judgment be thereupon given, then without delay, you send to us distinctly and openly, under the seal of your Court, an authenticated transcript'' of the record and proceed- ings aforesaid, with all things concerning the same, and this writ, so that having the same in our said Supreme Court in Bank, on the — day of — next, at the Court House in said County of Franklin, we may cause further to be done thereupon, in our said Supreme Court in Bank, what of right and according to the laws of the land ought to be done. Witness, L. H. Clerk of our said Supreme Court in Bank, at Co- lumbus, this — day of — , A. D. — . L. H. Clerk. The Clerk of the Supreme Court in the County, on being officially advised of the allowance of the writ, is required to make out an au- thenticated transcript of the record ; upon which errors are to be as- signed, and the same is then to be forthwith transmitted to the Clerk of the Court in Bank ; Swan's Stat. 690, *§> 154. (a) In Practice, no writ is sued cially informing him of the allow- out ; if allowed in Bank, the official ance of the writ ; White v. Ohio, 14 signatures of the Judges to the alio- Ohio Rep. 468. catur, or a copy of the Journal en- try — if by two Judges in vacation, (b) No other but a writ of error their official signatures to the alloca- from the Supreme Court to the Com- tur, furnished to the Clerk of the mon Pleas, requires the original files County — is the proper way of offi- and pleadings to be sent up. 456 PRACTICE. £iTor — Coram nobis in Common Pleas. A Citation is also to be made out by the Clerk of the Supreme Court in the County, which is required to be served upon the oppo- site party, or his attorney, at least twenty days before the sitting of the Court in Bank ; but if neither the defendant in error, nor his at- torney of record reside in the State, three weeks notice is to be given by publication in a newspaper ; Id. The Forms of Assignments of Errors, Citation, Bond, and other proceedings, are substantially the same as on writs of error to the Court of Common Pleas. Ante. 435 to 454. No execution issues from the Court in Bank, but a Mandate, or Procedendo, as the case may be, is sent to the proper Court, as in cases of error to the Court of Common Pleas. Ante. 451, 452. ERROR coram nobis IN COMMON PLEAS. Final Judgments in the Court of Common Pleas may be examined and reversed or affirmed for alleged errors in fact, upon a writ of er- ror coram nobis which is allowed, on cause shown, by the President Judge of the proper Circuit ; Ohio Stat. vol. 43, p. 80, <§> 5. An allowance of tlie writ is obtained on presentation of an au- thenticated transcript of the record, and an assignment of errors thereon, accompanied with the proper Notice and Affidavit. Form of Assignment.'' And afterwards, to wit, on this tenth day of June, in the year of our Lord, one thousand eight hundred and forty-six, came Henry Styles and Ann Styles, late Ann Smith, now wife of the said Henry Styles, who claim part and parcel of the lands and tenements afore- said, under the last will and testament of the said Robert Smith, de- vising the same in fee simple to the said Ann, which said last will and testament of the said Robert Smith is duly proven and recorded in the said County of — , and is now brought here into Court ; and say, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that by the record aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said A. B. jointly against the said Robert Smith, and John Nokes, and Thomas Nokes, in the plea afore- (a) For general Rules regulating (b) See Assignment of Errors, writs of error, See Ante. 42L Ante. 435. PRACTICE. 457 Error — Coram nobis in Common Pleas. said ; when in truth and in fact, the said Robert Smith in the plea aforesaid named between the parties aforesaid, and before the giving of the judgment aforesaid, to wit, on the sixteenth day of November, in the year of our Lord, one thousand eight hundred and forty-five, at the County of — aforesaid, died : and therefore in that there is manifest error ; and this they, the said Henry Styles and Ann his wife, are ready to verify : Wherefore they pray that the judgment aforesaid may be revoked, annulled, and altogether held for nothing, and that restitution and restoration be made of all things lost by oc- casion of the said judgment ; and that a Citation may be issued to give notice to the said A. B. that he be before the Honorable the Judges aforesaid on — next, to hear the record and proceedings aforesaid, and the matter above assigned to error, &c. By T. S. their AtVy. Form of Notice.* Common Pleas. This is to give you Notice that on — next, at ten o'clock in the morning, or as soon thereafter as counsel can be heard, at the dwell- ing house of J. S., President Judge of the — Judicial circuit of the Court of Common Pleas of the State of Ohio, I shall apply to the said J. S. for a writ of error coram nobis in the above case. CD. To Mr. A. B. Dated, &c. Form of Affidavit.'" In Case Common Pleas. J. R. of, &c., makes oath and says, that he knew Robert Smith one of the defendants in the above cause, who usually resided at — in the County of — and that the said Robert Smith died on — last or thereabouts, at the County of — aforesaid. Sworn to, &c. (a) Error coram nobis is to be al- 620. See 7 Pet. 144 ; 1 McLene, lowed by the Court on Notice and 143 ; and Ante. 421. Affidavit ; 20 Wend. 626 ; 19 do. 58 458 PRACTICE. Krror — Coram nobis in Common Pleas. Form of Allowance. On application of A. B. I allow a writ of error coram nobis in this cause, this — day of — , A. D. — , returnable at the next Term of the Court of Common Pleas of — County. J. S. President Judge of the — Circuit. Form of Writ. The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for the said County of Franklin, Greeting : [Seal.] Because in the record and proceedings, and also in the giving of judgment, in a certain plea of assumpsit which was lately before us in our said Court of Common Pleas of the said County of Franklin, between A. B. plaintiff and C. D. defendant, which said record and pro- ceedings now remain before us in our said Court of Common Pleas, as it is said, manifest error hath intervened, to the great damage of the said C. D. as by his complaint we are informed : We being wil- ling that the error, if any there be, should in due manner be correct- ed, and full and speedy justice done to the parties aforesaid in this be- half, do command you, that if judgment be thereupon given, then that the record and proceedings aforesaid being inspected, you cause fur- ther to be done thereupon, for correcting that error, what of right and according to the laws of the land ought to be done. Witness, A. C. Clerk of our said Court of Common Pleas of Franklin County, at Columbus, this — day of — A. D. — . A. C. Clerk. Form of Citation. The State of Ohio, [Seal.] To the Sheriff of — County, Greeting : We command you that you make known to A. B. of, &c., that he be before the Judges of our Court of Common Pleas within and for the County of Franklin aforesaid, at the Court House in said County, PRACTICE. 459 Error — Coram nobis in Common Pleas. on the first day of their next Term, to show cause, if any there be, why a certain judgment of the said Court of Common Pleas, of the — Term thereof, A. D. — , for — dollars damages, and — dollars costs, in a certain plea of assumpsit then pending in said Court, wherein the said A. B. was plaintiff, and the said C. D. was defen- dant, should not be revoked, annulled, and altogether held for nothing; and why speedy justice should not be thereupon done between the parties in that behalf. Witness, L. H. Clerk of the said Court of Common Pleas of Franklin County, at Columbus, this — day of — , A. D. — . L. H. Clerk. Replication to Assignment of Errors. A— B— , ^ ats. > In Error. C_ D— , ) And the said A. B., by E. F., his Attorney, comes and says, that by reason of any thing above for error assigned, the judgment afore- said ought not to be revoked, annulled or held for nothing ; because he says, that the said Robert Smith, in the plea aforesaid named, is yet living and in full life, to wit, at, &c., without this that he the said Robert Smith, before the trial of the issue aforesaid, died, in manner and form as the said C. D. hath above alleged : And this he the said A. B. is ready to verify, wherefore, he prays that the judgment afore- said may be in all things affirmed, &c. Rejoinder : — And the said C. D. as before says, that the said Robert Smith, before the trial of the issue aforesaid, joined in the said record between the parties aforesaid, died, in manner and form as he the said C. D. hath above alleged ; and of this he puts himself upon the country ; and the said A. B. doth the like. ERROR coram nobis IN SUPREME COURT. Writs of Error coram nobis may be allowed by the Supreme Court for errors in fact ; 6 Ohio Rep. 518. The Proceedings are, in substance, the same as upon the like writ in the Court of Common Pleas ; See Ante. 456. 460 PRACTICE. Certiorari. Certiorari. In England, a writ of Certiorari is an original writ issuinf^ out of the Court of Chancery, or the King's Bench, or Common Pleas, di- rected in the King's name to inferior judges or officers, commanding them to certify, or to return the records of, a case depending before them, to the end that the party may have the more sure and speedy justice before the King, or such justices as he shall assign to deter- mine the cause ; 1 Bac. Ahg. 349 ; F. N. B. 245 ; Com. Dig. Tit. Certiorari. When it issues out of Chancery, it is returnable in that Court, and the record when brought up, if required in any other Court, must be sent to them by mittimus ; Tidd. Pr. 400 ; Petersd. Ahg. 214. In Ohio, the Supreme Court and Court of Common Pleas, may is- sue this writ upon good cause shown ; Swan's Stat. 222, <§. 3, 4. The Constitution also provides that the Courts of Common Pleas shall have the same powers as the Supreme Court to issue writs of Certio- rari to Justices of the Peace ; Art. III. *§, 6. A Certiorari to County Commissioners to review their proceedings relative to Roads and Highways, is required to be prosecuted within one year ; Swan's Stat. 803, § 49. The distinction between Error and Certiorari is well marked in England and in some of the States, but in our prac- tice the difference in the forms of these writs — the mode of allow- ance — the process — the assignment of errors — and the judgment, is so slight, that it has almost disappeared ; and although no case is known, or believed to exist, where judgments proper have been re- viewed by Certiorari, or where the proceedings of other public bodies, except Courts of Common Law, have been carried up by writs of error, yet the acts of Courts of Record, other than their common law proceedings, are daily examined by writs of error, and several reported cases show the existence of the practice; 14 Ohio Rep. 240; See 4 Mass. 670 ; 9 lb. 465 ; 4 Pick. 125 ; Wright's Rep. 673 ; 7 Ohio Rep. 130, 178, part 2d ; 9 do. 142 ; 13 do. 548. The plaintiff may discontinue a Certiorari, though he has previously conveyed his inter- est to a third person ; 15 Ohio Rep. 715. Certiorari is not a proper remedy to review the proceedings of a City Council ; 14 Ohio Rep. 240. On Certiorari to a judgment in attachment, it may be assigned for error in fact. That the defendant in the original suit was actually a resident at the time the writ of attachment issued ; Hartshorn v. Wilson, 2 Ohio Rep. 27. If the Common Pleas, on Certiorari, quash the proceedings of a Justice of the Peace, for want of jurisdic- tion, the case, it seems, ought not to be continued in the Common Pleas for further proceedings ; Harding v. Trustees of New Haven PRACTICE. 461 Certiorari. Township, 3 Ohio Rep. 227. Motions to rescind former orders, to set aside levies on execution, for new trials, to amend pleadings, &,c., are addressed to the sound discretion of the Court; and unless that discretion be abused, or some rule of Law violated, the Supreme Court will not disturb the orders of the Common Pleas on Certiorari; Bliss V. Enslow, 3 Ohio Rep. 269 ; Fowble v. Walker, 4 Ohio Rep. 64 ; Avery v. Ruffin, 4 Ohio Rep. 420. A Certiorari, and not Ap- peal, is the proper remedy to review the decision of the Common Pleas on an application to redeem land sold for taxes ; Street v. Francis, 3 Ohio Rep. 277 ; S. P. Masterson v. Beasly, 3 Ohio Rep. 301. Certiorari lies from the Supreme Court to inferior jurisdictions, but will be allowed only in extraordinary cases ; Burrows v. Vande- vier, 3 Ohio Rep. 383. An order for opening a county road 40 feet wide is reversible on Certiorari, the Law requiring such road to be 60 feet wide ; lb. The Supreme Court, on Certiorari, will not disturb an order of the Common Pleas distributing fees between the late and present Sheriffs, unless in a case of gross injustice ; Avery v. Ruffin, 4 Ohio Rep. 420. Certioiari is a proper remedy to bring in review, before the Supreme Court, the proceedings of administrators in sel- ling real estate ; Eiving v. Hollister, 7 Ohio Rep. 138, part 2d ; 15 do. 215. A Certiorari is the proper remedy to revise an order of the Court of Common Pleas setting aside a sale of real estate ; Walpole's Lessee v. Ink, 9 Ohio Rep. 142. In such case, a writ of error will not lie, because it is a mere order, and not a judgment, that is sought to be reversed ; lb. The Supreme Court do not allow the writ of Certiorari before a final disposition of the cause in the Court below ; Herf V. Shulze, 10 Ohio Rep. 263; S. P. Kelly v. Hunter, 12 Ohio^ Rep. 216. Neither the Supreme Court nor the Court of Common Pleas has any power to issue a Certiorari in criminal cases; Winn v. The State of Ohio, 10 Ohio Rep. 345. But by the Act of 1844, a Certiorari is allowed to Justices of the Peace in criminal cases ; Ohio Stat. vol. 42, p. 72. A Certiorari is a proper remedy to review an Order of the Common Pleas amercing the Sheriff; 10 Ohio Rep. 45; 12 do. 220 ; Wright, 720. So for appointing one not of him administrator; Id. 130. So to reverse an Order confirming a sale upon execution ; Id. 574. The Supreme Court has concurrent power with the Court of Common Pleas to is- sue writs of Certiorari to Justices of the Peace, but that power is ex- ercised only in extraordinary cases ; Wright, 207. Certiorari is the proper remedy to review the proceedings of the Common Pleas under the Bastardy Act; 16 Ohio Rep. 56. But not to question the regu- larity of a sale and confirmation in Chancery ; an appeal is the proper remedy in such case; 16 Ohio Rep. 274. The proceedings of a Justice will not be reversed on Certiorari, because the transcript omits to state any form of action, nor because he neglects to send up a bill of particulars; 15 Ohio Rep. 556. 462 PRACTICE. Certiorari — Supreme Court to Common Pleas. CERTIORARI — SUPREME COURT TO COMMON PLEAS. An Allowance of a Certiorari, from the Supreme Court, is applied for in open Court, or to a single Judge, by producing an authenticated transcript of the proceedings below, with an assignment of error an- nexed thereto. For the Form of Assignment, See Error, Ante. 435. Order of Allowance. A— B— , ^ V. > Motion to amerce the Sheriff — Common Pleas. C_ D— , ) On motion of the said C. D. a writ of Certiorari is allowed in this case, returnable on — next. The like, by a Single Judge. * On application of C. D. I allow a writ of Certiorari in this case, this — day of — A. D. — , returnable on — next. [Indorsed on the back of the transcript,] J. S., Judge of the Supreme Court. Form of the Writ. The State of Ohio, To the Honorable the Judges of the Court of Common Pleas within and for the county of — , Greeting : [Seal.] We being willing for certain causes to be certified in our Supreme Court, of certain Proceedings lately in our Court before you, between A. B. and C. D., upon a certain Motion of the said A. B. to amerce the said C. I), as Sheriff, \or upon a certain Application of the said A. B. to redeem lands sold for Taxes, 8fc., as the case may be,] do command you that if final judgment be thereupon ^ given, then without delay you send to us, in our said Supreme Court, within and (a) A certiorari is not ordinarily posed of in the Court below; W Ohio allowed until the case is finally dis- Bep. 363 ; 12 do. 216; Wright, A\S. PRACTICE. 463 Certiorari — Supreme Court to Common Pleas. for the said county of — , a certified transcript of the record of the Judgment and Proceedings aforesaid, with all things touching the same, as fully and entirely as they remain in our said Court of Common Pleas before you, by whatsoever names the parties may be called therein, together with this writ ; so that having the same in our said Supreme Court on — next, at the Court House in said county, we may further cause to be done thereupon what of right we shall see fit to be done. Witness, A. C. Clerk of our said Supreme Court, at — , this — day of — , A. D. — . A. C. Clerk. In obedience to the writ, the Clerk of the Court of Common Pleas makes out a certified transcript of the proceedings of that Court, which, with the writ annexed, is returned to the Supreme Court. Form of the Return. The Answer of the Judges of the Court of Common Pleas within named. A certified transcript of the record of the Judgment and Proceed- ings within mentioned, with all things touching the same, as fully and entirely as they remain before us, is annexed to this writ and herewith returned, as within commanded. Attest : A. C. Clerk of — Common Pleas. Form of Citation. [Seal.] The State of Ohio, To the Sheriff of the County of — , Greeting : We command you that you make known to A. B., of, &c., that he be before the Judges of our Supreme Court within and for the said County of — , at the Court House in said County, on the first day of their next Term, to show cause if any there be, why the judgment of the Court of Common Pleas of said County, at the — Term thereof, A. D. — , upon a certain Motion to amerce, &c,, [as the case may be,] then pending in said Court, between the said A. B. and C. D., and which judgment, on the complaint of the said C. D., we have lately, by our writ of Certiorari caused to be brought into our said Supreme Court, should not be reversed, annulled and altogether held for nothing, &,c. Witness, A. C. Clerk of our said Supreme Court, at — , this — day of — , A. D. — . A. C. Clerk. 464 PRACTICE. Cerliorari — Common Pleas to Justices of the Peace. The writ and Transcript being returned to the Supreme Court, Er- rors are assigned, and other proceedings thereupon had, substantially as upon writs of Error. Ante 435 to 454. There seems to be no statute requiring a Bond to be given in such cases. Order of Common Pleas Reversed on Certiorari in Supreme Court. This cause came on to be heard upon the transcript of the proceed- ings in the Court of Common Pleas, and was argued by counsel, on consideration whereof tiiis Court is of opinion that there is error in the proceedings and order of the said Court of Common Pleas, in this to wit. That &c. Therefore, for the errors aforesaid. It is con- sidered that the order aforesaid, made by the said Court of Common Pleas, be and the same is hereby reversed, with costs, and that the said C. D. be restored to all things he has lost by reason of the same : and It is ordered that a special mandate be sent down to the said Court of Common Pleas to carry this Judgment into execution. Order of Common Pleas affirmed on Certiorari in Supreme Court. This cause came on to be heard upon the transcript of the proceed- ings in the Court of Common Pleas, and was argued by counsel, on consideration whereof, this Court is of opinion that there is no error in the proceedings or order of the said Court of Common Pleas : Therefore It is considered that the order aforesaid made by the said Court of Common Pleas be and the same is hereby confirmed, with costs, &c. [Conclude as in the last Precedent.] See Judgments in Error, Ante. 445. CERTIORARI FROM THE COURT OF COMMON PLEAS TO JUSTICES OF THE PEACE.'' Writs of Certiorari may be allowed by the Court of Common Pleas at any time before satisfaction of the judgment, within five years from its date; Swan's Stat. 515, >§> 57. They may also be allowed by any single Judge in vacation, at any time within fifteen days, after the rendition of the judgment. Ibid, <§> 56. It cannot be issued, how- (a) See Ante. 460. PRACTICE. 465 Certiorari — Common Pleas to Justices of the Peace. ever, until the applicant shall execute a bond to the adverse party, with sufficient surety, resident within the County, conditioned for the payment of all costs and charges which have accrued, or may accrue on such writ, together with the amount of any judgment that may be rendered against the appellant, on the further trial of the cause, af- ter the judgment of the Court below shall be set aside or reversed ; and from the execution of such bond, the writ of Certiorari operates, in all cases, as a supersedeas to execution. Ihid. 55, 58. The first step to be taken by a party aggrieved, is to procure from a Justice of the Peace a transcript of the proceedings before him up- on which errors are assigned, as in cases of writs of error. Ante. 435. The transcript is then presented to a Judge, if in vacation, or to the Court in term time. If a Judge in vacation allows the writ, he makes the following indorsement on the back of the transcript : Form of allowance of a Certiorari by a judge in vacation. Let a writ of Certiorari issue in the within case, upon the applicant giving bond and security according to law. E. F. Judge, ^c. To the Clerk of — Common Pleas. Dated, &c. If the writ be allowed by the Court in term time, the entry upon the Journal is thus : Form of Allowance of Certiorari by the Court. A— B— , ^ V. > Certiorari. C— - D— , ) On motion to the Court by Mr. O., counsel for the said A. B., and upon producing a transcript of the proceedings in this cause before E. F., Justice of the Peace of the township of — and County of — , and the Court having inspected the same, and the errors thereupon as- signed, It is ordered that Certiorari be issued herein to the said E. F., returnable at the next term, upon the said A. B. giving bond and security according to law. The transcript is then filed with the Clerk, who enters the cause upon the appearance docket, and takes the bond, as follows : 59 466 PRACTICE. Certiorari — Common Pleas to Justices of the Peace. Form of a Certiorari Bond. Know all men by these presents, that we, C. D." and E. F., of the County of — and State of Ohio, are held and firmly bound unto A. B. of, &c., in the penal sum of — dollars, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, and dated this — day of — A. D. — . The condition of the above obligation is such, that whereas the said C. D. hath this day obtained the allowance of a writ of Certiorari to remove into the Court of Common Pleas, of said County of — , a certain judgment for the sum of — dollars, damages, and — dollars, costs, lately rendered against the said C. D. by E. F., a Justice of the Peace within and for the said County of — , in a certain action then pending before him, wherein the said C. D. was plaintiff, and the said A. B. defendant: Now, if the said C. D. shall well and truly pay all the costs and charges which have accrued or which may accrue in the prosecution of said writ of Cei'tiorari, together with the amount of any judgment that may be rendered against the said C. D. on the further trial of said cause, after the said judgment of the said Justice of the Peace shall have been set aside or reversed, or upon and after the affirmance thereof in the said Court of Common Pleas, then this obligation shall be void ; otherwise, in full force and virtue in law. C. D., [seal.] E. F., [seal.] Approved. G. R., Clerk — Com. Pleas. The bond being executed and filed, a writ of Certiorari is issued to the Justice of the Peace for another transcript. Form of a Writ of Certiorari. The Static of Ohio, To E. F., Esq., a Justice of the Peace within and for the Township of — and County aforesaid, Greeting : Wc command you, that a certified transcript of the record and proceedings of a certain suit lately pending before you, wherein A. (a) It is not indispensably neccs- execute the bond ; 10 Ohio Rep. sdiiy that the applicant himself should 445. PRACTICE. 467 Certiorari — Common Fleas to Justices of the Peace. B. was plaintiff, and C. D. was defendant, and wherein on — you rendered a judgment for the sum of — dollars, damages, and — dol- lars, costs, in favor of the said A. B. against the said C. D., with all things touching the same, as fully as the same are now before you, you send, sealed and enclosed with this writ, to our Court of Common Pleas within and for the said County of — on the first day of their next term. Witness, F. C. Clerk of our said Court of Common Pleas, this — day of — A. D. — . F. C. Clerk. This writ is taken to the Justice of the Peace, by the party or his agent, who makes out a certified copy of the proceedings before him, and transmits the same, inclosed and sealed up with the writ, to the proper Court. After the writ has been issued, the plaintiff in Certiorari must give written notice thereof, to the adverse party, his agent or attorney, if resident in the County, and this notice must be personally served by reading, or by copy left at the dwelling house or place of abode of such party ; but if the adverse party, his agent or attorney, be not a resident of the County, the notice must be given by advertisement posted up in three of the most public places in the County. This notice must be given ten days before the term of the Court to which the writ is made returnable ; but if that number of days does not in- tervene between the date and return of the writ, the Court will make such order respecting the notice to be given, as they shall deem pro- per; Swan's Stat. 516, <§> 59, 60. Form of Notice. To A. B. Take Notice that, at my instance, a writ of Certiorari has been al- lowed and issued, to remove into the Court of Common Pleas of — county, a judgment rendered against me and in your favor, on — by E. F., a Justice of the Peace within and for the township of — and county aforesaid, for the sum of — dollars, damages, and — dollars, costs ; and that, at the next term of said Court, I shall pray a reversal of said judgment. C. D. Dated, &c. This notice may be served by the Sheriff or any other competent person. 468 PRACTICE. Certiorari — Common Pleas to Justices of the Peace. Upon the return of the writ and transcript by the Justice of the Peace, the plainlilT in Certiorari, within the time limited by the rules of the Court, assigns errors anew upon the transcript so returned, and the cause proceeds to a hearing, as in cases of writs of error. For the Forms of Assignment of Errors, See Error, Ante. 435. Judgments. If the judgment of the Justice be affirmed, the Court will render judgment against the plaintift' in Certiorari, for the costs of suit, and will direct the judgment of affirmance to be certified to the Justice, or will award execution, to carry into effect the judgment of the Jus- tice, in the same manner as if sucli judgment had been rendered in the Court of Common Pleas ; but where the judgment of the Justice is reversed, the Court will render a judgment against the defendant in Certiorari, for all costs which have accrued up to the time of the re- versal, but the cause is retained in the Common Pleas for trial and final judgment, as in cases of appeal; Sivan's Stat. 516, <§)61,6'2. A Justice of the Peace, on suggestion of Diminution, cannot be ord- ered to send up another Transcript and certify whether facts do not exist which do not appear on his docket; Wright, 418. Judgment of Affirmance. A— B— , ^ V. > Certiorari. C— D— , ) This cause came on to be heard on the transcript of the record and proceedings before E. F., a Justice of the Peace within and for the township of — and county of — , and was argued by counsel ; on consideration thereof. It is ordered and adjudged by this Court, that the judgment of the said E. F. be, and the same is hereby affirmed, with costs ; * and that this judgment be certified to the said E. F., that further proceedings may be thereupon had according to law. The Like, with an Award of Execution upon Justice's Judg- ment. Proceed, as in the last Precedent, to the (*) — and It is further ordered, that execution issue herein against the said C. D., as well for the costs aforesaid as for the sum of — dollars, the amount of the said judgment of the said E. F., amounting in all to — dollars. PRACTICE. 469 Certiorari — Common Pleas to County Commissionera. Judgment of Reversal. A— B— , ^ V. > Certiorari. C— D— , ) This cause came on to be heard upon the transcript of the record and proceedings before E. F., a Justice of the Peace within and for the township of — and county of — , and was argued by counsel ; on consideration whereof, It is ordered and adjudged by this Court, that the judgment of the said E. F. be, and the same is hereby re- versed, with costs ; and It is further ordered, that execution issue herein against the said A. B., as well for his costs aforesaid, as for his costs before the said E. F., amounting in all to — dollars : And It is further ordered, that this cause be continued for trial and final judg- ment. The judgment being thus reversed, the plaintiff in the Court below becomes plaintiffin the Court of Common Pleas, a declaration is filed, and the cause proceeds on to trial, as if originally commenced in the Court of Common Pleas. See Declarations in Assumpsit, Ante. 35. Certiorari to County Commissioners.*^ [Seal.] The State of Ohio, To the County Commissioners of the County of — , Greeting : We being willing for certain causes to be certified in our Court of Common Pleas of the said county of — , of certain proceedings lately before you upon the petition of A. B., &c., touching a certain Road or Highway leading from — to — , do command you that if your deter- mination and judgment be thereupon given, then without delay you send to us, in our said Court of Common Pleas, a transcript, duly cer- tified, of your Proceedings, determination and judgment aforesaid, with all things touching the same, as fully and entirely as they remain before you, by whatever names the parties may be called therein, to- gether with this writ, so that having the same in our said Court of Common Pleas on the first day of their next Term, at the Court (a) There seems to be no Statute athorizing an allowance of this writ oth- erwise than in Term time. 470 PRACTICE. Parties — By Citation. House in said County, we may further cause to be done thereupon what of right we shall see fit to be done. Witness, A. C. Clerk of our said Court of Common Pleas at — , this — day of A. D. — . A. C, Clerk. Form of the Return. The Answer of the County Commissioners of the county of — , within named. A certified transcript of the Proceedings, determination and judg- ment within mentioned, with all things touching the same, as fully and entirely as they remain before us, is annexed to this writ and here- with returned, as within commanded. Attest : J. C. Auditor of — County. PARTIES — By Citation. In all cases where the cause of action survives, the executor or ad- ministrator of the deceased party, is required by Statute to make him- self a party, and prosecute or defend the suit, to final judgment and execution ; Swan's Stat. 667, •§> 80. Where the executor or admin- istrator appears voluntarily, the entry upon the Journal is made ac- cordingly ; Id. Administrators de bonis non are to observe the same rule ; Id. 686, ^ 137. A— B— , ^ v. > In Case. C— D— , ) This day the death of the plaintiff, or, defendant, was suggested ; and thereupon J. S., his executor, applied to be made plaintiff, or, defendant in his stead, and the same is ordered accordingly. If the executor or administrator neglect or refuse to apply to be made party during the Term, next succeeding the death of the party, the Court, at the same Term, order the death of tlie party to be sug- gested on the record, and a Citation to issue, returnable at the next Term, requiring the executor or administrator to appear and make himself party instead of the testator or intestate ; Swan's Stat. 668, <§,82. PRACTICE. 471 Parties — By Citation. Order for Citation. This day, it being suggested to the Court that the defendant, since the last Term, lias died intestate, and that J. S. is his administrator ; and the said J. S. neglecting to apply to be made defendant, instead of the said C. D., It is therefore, on motion of the said A. B., order- ed, that the defendant's death be suggested on the record, and that a Citation issue against the said J. S., as administrator of the said C. D., according to the Statute in such case made and provided. Form of Citation. The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. lately in our Court of Common Pleas, within and for the said County of — to wit, at the — Term thereof, A. D. — , impleaded C. D. in a certain plea of the case, &c. [as the plea is] ; and afterwards and before final judgment, the said C. D. died, intes- tate, to wit, on — , whose death was afterwards, to wit, at the — Term of said Court A. D. — suggested on the record of the same Court ; and administration upon his estate has been granted by the Court of — to J. S. in due form of law, as we are informed by the said A. B. : And now on the behalf of the said A. B. we have been informed, in our said Court of Common Pleas, that, although the said suit is still pending, and in no wise abated or discontinued, yet the said J. S., administrator as aforesaid, altogether neglects to appear and make himself defendant thereto : We therefore command you that you cite the said J. S., administrator as aforesaid, to appear before the Judges of our said Court of Common Pleas, on the first day of their next Term, and cause himself to be made defendant in said suit, instead of the said C. D. And of this fail not ; and have you then there this writ. Witness, F. C. Clerk of our said Court of Common Pleas, at C. this — day of — , A. D. — . [Seal.] F. C, Clerk. 472 PRACTICE. JNoUe Prosequi. If, upon service of the Citation, the executor or administrator of the plaintiff neglects to appear, judgment of non-suit passes against him with costs of suit ; If the administrator or executor of the defend- ant neglects to appear, the case proceeds on to judgment, in tiie same manner as if the suit had been originally brought against the executor or administrator ; Sloan's Stat. 668, <§> 83, 84. For other proceedings to make Parties Plaintiffs and Defendants, See Scire Facias, Ante. 46. For rules regulating the Misnomei' of Parties, &.C., See Declara- tions on Fromissory Notes in Assumpsit, Ante. 359, note (a). NOLLE PROSEaUI.^ Form of Nolle Prosequi to the Whole Declaration. A— B— , ^ V. > In Case. C— D— , ) This day came the plaintiff, and inasmuch as he cannot deny the matters by the said C. D. above pleaded, now freely lierc in Court confesses that he wall not further prosecute his suit against the said C. D. Therefore It is considered, &c. \as in judgment of Non- suit, Ante. 177. The like, to one or more of several Counts. This day came the plaintiff, and as to the said plea of the said C. D. by him (lastly) above pleaded, as to the sixth and last counts of the declaration, saith that he will not prosecute his suit against tiie (a) For the effect of a Nolle Pros- 2 Blackf. 137. Where individuals equi. See 1 Pet. 46, 74 ; 28 Eng. are sued joindy in assault and battery Com. lAiwJiep. 303 ; 1 Blackf. 144 ; with a Bank, a Nolle Prosequi may 2 do. 137. be entered as to the Bank before de- Thc plaintiff may dismiss his suit murrer to the declaration argued ; 1 in vacation ; 1 1 Pet. 00. An Attor- Ohio Rep. 36. ney has no power to enter a retraxit ; PRACTICE. 473 Depositions. said C. D. in respect of the [promises and undertakings] in the said sixth and last counts of the said declaration, or any of them ; There- fore as to the [said promises and undertakings] in the said sixth and last counts of the said declaration, It is considered that the said C. D. be acquitted, and go thereof without day, &c. The like, as to some of several Defendants. A-B-, ^ V. r ^" Case. C_ D— and E— F— , ) This day came the plaintift^, and as to the plea of the said E. F., by him above pleaded, saith, that he will not further prosecute his suit against the said E. F. ; Therefore It is consideked that the said E. F. be acquitted of the promises in the said declaration men- tioned, and go thereof without day, &c. DEPOSITIONS.^ When the Testimony of any person is necessary in any civil cause or matter, pending in the Court of Common Pleas or Supreme Court, sitting as a Court of Law or Equity, and such person resides out of (a) One was examined as a wit- ness in a cause, and afterwards be- came a plaintiff for the interest in that business ; and his Deposition was admitted ; 7 Vin. Mg. 5.54. A witness examined for the plaintiff, and to be cross-examined for the de- fendant, but before he could be cross- examined, died, the Deposition was received ; Id. 555. If both parties are present, and no objection is taken at the time to an answer, it will be considered as waived ; 10 Pet. 171 ; 1 Paine' s C. C. Pep. 400 But See 3 Litt. 77. A Deposition opened by the Attorney through mistake, is still admissible ; 16 Pick. 551. Three witnesses deposed in open Court that the Commissioners had set down their Depositions wrong ; the Depositions were suppressed, and another exam- 60 ination ordered ; 7 Vin. Mg. 555. A Commission was granted to ex- amine witnesses at Algiers, and the plaintiff died, by which the suit aba- ted, but the witnesses were examined before notice of the plaintiff's death ; the examination was held regular, though A., one of the witnesses, was still hving; 2 Eq. Ca. Mg. 419. When the Deposition of a defendant in Chancery may be taken by a co- defendant ; 8 Paige. 461. A defen- dant may examine a mere nominal plaintiff as a witness against the real plaintiff; 6 Paige, 565. Where a plaintiff is a necessary party, but has no personal interest in the matter, yet is a material witness to sustain the suit, he may be changed from a plaintiff to a defendant, and then ex- amined ; 6 Paige, 566. The plain- 474 PRACTICE. Depositions. the County where such cause or matter is pending, or shall intend to leave the County before the time of trial, or is ancient or very infirm ; the Deposition of such person may be taken before any Justice, or Judge of any Court of the United States, or before any Cliancellor, Master Commissioner in Chancery, Justice or Judge of any Supreme or Superior Court, Notary Public, Mayor or Cliief Magistrate of any city or town corporate, Judge of any County Court or Court of Com- mon Pleas, or Justice of the Peace of this State, or any of the United States, or any district or territory thereof; such officer not being of counsel or attorney to either of the parties, or otherwise interested in the event of sucli cause ; proper Notice being first given to the adverse party ; Swan's Stat. 321, *§> 1. tiff cannot have a decree against a defendant whom he has examined as a witness ; 4 Paige, 127; 2 Ed. Ch. Rep. 192. How a Deposition is to be taken in a foreijrn languagfe ; 4 Br. Ch. Rep. 66. A parly present at taking a Deposition cannot object to the Notice ; 2 Bibb, 317. Nor if he cross-examines ; 2 Bibb, 499 ; 4 do. 480. A Notice to take Depo- sitions at tivo places on the same day is not good as to either ; 4 Bibb, 88 ; The signature of the witness is not indispensible ; 1 Marsh. 424,591. In Ohio, the witness is required to subscribe his testimony ; Swaii's St. 322, § 3. No second Deposition of the same witness ought to be taken without leave of the Court ; 2 Marsh. 236 ; \J.J. Marsh. 3. The taking of Depositions may be adjourned from day to day ; 2 Marsh. 571 ; 1 Mon- roe, 225. But where notice was given to take Depositions on the 8th of August, with liberty to adjourn from day to day, and the commis- sioners met on the 8tb, and adjourned from day to day until the 12th, and then from tlie 12th to the 19th, when the Deposition was taken, such Dep- osition is not admissible ; 3 Cranch, 293. Where one party agrees that a Deposition may be used, the other party may use it; 3 Marsh. 236. Oral evidence is admissible to show that the Deposition was taken accor- ding to Notice ; 3 Marsh. 558. A Notice to take Depositions on a cer- tain day, and if not then taken, two weeks off, is good ; 'Z J. J. Marsh. 55. A recital by the officer that the Deposition was taken by consent on another day, is no evidence of the fact ; Q J. J. Marsh. 638. If it ap- pears that the Deposition was taken at the same place, though called by a different name in the caption, it is still good ; 1 Monroe, 225. The officer styhng a person the plaintiff'' s agent who cross-examines, is not ev- idence of the fact so as to dispense Avith Notice ; 4 Monroe, 366. No- tice to take Depositions at a Tavern in a City, without mentioning the christian name of the Tavern Keeper, is prima facie good ; 1 Litt. 122. Notice to one partner here, the other residing out of the State, is good, though the partnership be dissolved ; 3 Litt. 249. The notice may be served by a private person, and his oath in Court, or his affidavit before a Justice of the Peace, is evidence enough of the service ; 5 Dana, 343. In England, Avitnesses may demurr to questions put by commissioners, and the Court decide ; 10 Eng. Ch, Rep. 305. How commission issues to a Foreign Country ; 2 Ves. Sen. 336 ; 2 Swanston, 277. A witness cannot draw up his testimony and carry it before the commissioners, PRACTICE. 475 Depositions. Form of Notice to take Depositions. A— B— , ^ V. > — Com. Pleas. C— D— , ) Depositions will be taken in this Case, by the Plaintiff, at — in the Town of — County of — and State of — on the — day of — next, between six A. M. and nine P. M. Dated, &c. A. B. This Notice must be served on the adverse party, his agent or at- torney of record, or left at his usual place of abode, at such time as will enable the adverse party to attend at the taking of the Deposi- tions, by travelling at the rate of twenty miles per day, Sundays ex- clusive ; Swanks Stat. 321, >§> 2. Notice may be served by any dis- interested person ; but the party's own oath is not admissible to prove the service ; 10 Ohio Rep. 397. See Ante., 473 note (a). Affidavit of Service of Notice. J. S., of, &c., makes oath and says, that on the — day of — A. D, — , he personally served, [or, left at his usual place of abode,] the within named A. B. [or, T. S., his Attorney,] with a true copy of the within notice. Sworn to, &c. The attendance of witnesses before the officer may be enforced by Subpoena and Attachment ; Swan's Stat. 322, § 6. and hand it in ; 15 Ves. 382 ; 2 evidence : Otherwise, under the Act Johns. Ch. 346; 4 Day, 121. A of March, 1831; Gibson v. Mcdr- witness aged 70 years, is held of it- thiir, 5 Ohio Rep. 329. Depositions self a sufficient ground for him to be taken without notice, cannot be used examined de bene esse ; S P. TVms. in evidence; Lattier v. Lattier, 5 77. On an issue out of Chancery, Ohio Rep. 538. The party's own to try the validity of a Will, the Dep- oath is not admissible to prove service ositions in the Chancery suit may be of notice to take Depositions ; Lock- used, provided the witnesses are not wood v. Mams, 10 Ohio Rep. 397. within the jurisdiction of the Court ; It is too late to object, at the hearing, Green v. Green, 5 Ohio Rep. 278. that the Deposition of a co-defendant Under the Act of February, 1824, was taken without leave ; Woods v. Depositions taken upon notice, before Dille, 11 Ohio Rep. 455. See Dep- the Mayor of Alexandria, in the Dis- ositions in the Circuit Court of the trict of Columbia, cannot be read in U. States, Post. 476 PRACTICE. Depositions. Form of SuitPtENA for Witnesses. The State of Ohio, To the Sheriff'' of — County, Greeting : You are liereby commanded to summon F. W. &c., to appear be- fore me, G. H., a Justice of the Peace, Judge, &fc., at — on the — day of — , at nine o'clock, A. M., then and there to be examined, and the truth to speak, in behalf of the Plaintiff, in a certain cause pending in the Court of — , wherein A. B. is plaintiff, and C. D. Defendant : Hereof fail not, under the penalty of the law : And have you then there this writ. Given under my hand and seal, this — day of — A. D — . G. H. [seal.] If a witness, without reasonable excuse, neglects or refuses to ap- pear, the officer issuing the Subpoena, may proceed against him by Attachment, and impose upon him a fine of not more than Fifty Dol- lars ; or if he refuses to testify after he has appeared, the officer may also commit him to jail until he shall submit to testify ; Sivan's Stat. 322, §1,8. An Attachment, however, will not issue without personal service upon the Witness. Affidavit of Service of the Subpcena. G. H. of, &c., makes oath and says, that on the — day of — A. D. — , he served the within Subpcena upon J. S. within named, by delivering to him in person a true copy thereof at — . Sworn to, &c. Writ of Attachment. The State of Ohio, To the Sheriff of — County, Greeting : We command you that without delay you attach J. S., so that you have his body forthwith before T. W., a Justice of the Peace, or (a) The Subpoena may be directed to any Sheriffvor Constable ; Swan's Stat. 333, § 13. y ^ PRACTICE. 477 Depositions. Judge, &c., at — to answer to us touching his neglect or refusal [as the case may be] to appear before the said T. W. and give testi- mony in behalf of A. B., as heretofore, by our writ of Subpoena, he was commanded to do ; and also to abide such further order as the said T. W. shall make in this behalf ; And of this writ and your ser- vice make due return. Witness my hand and seal this — day of — A. D. — • T. W. [Seal.] At the time and place specified in the Notice, the Witness is first sworn or affirmed, by the Judge or other officer, " to testify the truth, the whole truth, and nothing but the truth f^ and then his testimony must Jbe reduced to writing, by the Officer taking the Deposition or by the witness, or some other disinterested person in his presence, and subscribed by the witness ; Swan's Stat. 322, ^ 3. Words of course preceding Depositions taken upon Notice. Depositions of witnesses taken in a cause pending in the Court of — wherein A. B. is Plaintift^, and C. D. Defendant, in pursuance of the Notice hereto attached. G. H. of, &c. of lawful age, being first duly sworn, or, affirmed, deposes and says : That, &c. Also, T. S. of, &c. of lawful age, being first duly sworn, or, qf- firmed, deposes and says: That, &c. The Depositions having been respectively subscribed by the Wit- nesses, the proper Authentication is to be annexed. The Statute prescribes Three modes of Authentication ; Swan's Stat. 323, 324. I. If the Depositions be taken by a Judicial or other Officer, (au- thorized by the Statute to take Depositions,) residing in this State or elsewhere, having a Seal of Office, no other Authentication is re- quired besides his own Certificate and Signature, with his Seal of Office annexed. II. If the Depositions are to be used within the limits of the Ju- dicial Circuit of the Court of Common Pleas wherein they are taken, and are taken by any Judicial or other Officer, not having a Seal of Office, no other Authentication is required besides his own Certificate and Signature. 478 PRACTICE. Depositions. III. But if tliey are not taken within the Judicial Cii'cuit in which they are to be used, (whether taken in this State or elsewhere,) and are taken by any Judicial or other Officer, not haying a Seal of Of- fice, they must be further authenticated, either by parol proof adduced in open Court, or by the annexation of the official certificate and seal of some Secretary, or other officer of State, keeping the great Seal of the State, or the Clerk, or Prothonotary of the Court of some City, County, Circuit, District, State, Territory, Province, or other division, that the officer by whom the Depositions were taken was, at the time of taking the same, an Officer within the meaning of the Statute. 1. Form of Certificate with a Seal of Office. I, S. S., Mayor, or. Notary Public, &c. [stating the official char- acter] do hereby certify, that the above named A. B. and C. D. [naming each witness] were by me sworn, or, affirmed, in the above named case, to testify the truth, the whole truth, and nothing but the truth, and that the foregoing Depositions, by them respectively sub- scribed, were reduced to writing by, [naming the person,] and were taken at the time and place specified in the enclosed Notice. Witness, my Signature and Seal of Office this — day of — A. D.— . [Seal.] S. S., Mayor of the City of—. 2. Form of Certificate without a Seal of Office, and within the Judicial Circuit. Proceed as in the last Form except only at the close, say — Witness, my Official Signature this — day of — A. D. — . S. S., Justice of the Peace of — County. 3. The like without a Seal of Office, and without the Judicial Circuit. Proceed as in the last Form to the end ; and then add the Authen- tication of the Clerk, Secretary of State, or other proper officer, as required by the Statute. That of a Clerk may be as follows : PRACTICE. 479 Depositions. Clerk's Certificate. [Seal.] The State of Ohio, — County, ss. I, A. B., Clerk of the Court of Common Pleas within and for the County of — do hereby certify, that on the — day of — A. D. — , [date of Justice's Certificate,'] S. S., whose name is annexed to the foregoing Certificate, was a Justice of the Peace of the said County of — , elected and qualified in due form of law. Given under my hand and Seal of Office this — day of — A. D. A. B. Clerk. The Officer taking the Depositions may deliver the same into the office of the proper clerk, or seal them up with a copy of the Notice and transmit them to the clerk, there to remain under seal, until opened according to the Rules of Court. The Direction may be as follows : " To the Clerk of the Court of Common Pleas of — County, Ohio. A. B. V. C. D. Depositions." Most Rules of Practice require exceptions to Depositions to be dis- posed of before the cause is tried. DEDIlvroS POTESTATEM. A Dedinius, or commission to take Depositions, according to com- mon usage, may be granted either by the Supreme Court, or Court of Common Pleas, in Term time, or by any President Judge, in vaca- tion ; Sivan's Stat. 670, <§)91. Order of Court for a DEDisros Protestatem. On Motion of the Court, by Mr. O. counsel for the Plaintiff", It IS Ordered, that a Dedimus Protestatem issue in this cause, to take the Depositions of sundry persons in the city of New Orleans, to be directed to S. T. and W., any two of whom may execute the same ; and It is further Ordered, that the Defendant, within ten days,' file with the Clerk of this Court the name of an agent resident in the said city of New Orleans, to whom notice of the time and place of executing said Dedimus Protestatem may be given ; and It is fur- ther Ordered, that the service of such notice upon such ageut, ten 480 PRACTICE. Depositions. days previous to the execution of said Dedimus Protestatem, shall be deemed good service upon the Defendant ; and It is further Ordered, that if the Defendant fail to file with the Clerk the name of such agent, by the time aforesaid, then said Dedimus Protestatem may issue ex parted Notice of Application to a President Judge for a Dedimus. A— B- V. f In Case — Common Pleas. The Defendant will take Notice, that on — next, at — , at Ten o'clock in the morning, or as soon thereafter as Counsel can be heard, the Plaintiff will apply to J. S., President Judge of — Circuit, for a Dedimus to take Depositions in this cause at ^ew Orleans. Dated, &-c. (Signed) A. B. Order for a Dedimus by President Judge. In Case — Common Pleas. On application of the said A. B., It is Ordered, &.c., \the same as if ordered by the Coart] . J. S., President Judge of — Circuit. (a) The Commissioners are ap- Commission are not governed by the pointed by the Court, or agreed on Statute providing for the taking of by the parties. In England, the or- Depositions, but by the " common der of the Court directs the Clerk of usages of Courts;" Sivmi's Stat. the adverse party, to name to the 670, §91. The application may be Clerk of the party applying for the made at Law as well as in Equity ; Commission, an agent resident in the and being addressed to the discretion place where the Commission is to be of the Court, the parties are put un- executed, to whom notice of the exe- der such terms as will afford a con- cution of the Commission is to be venient opportunity for them to attend given, and that service of such notice in person, or by agent, and at the on the agent be good notice, or in de- same time allow the applicant to pro- fault of naming an agent, the Com- ceed ex parte, if the opposite party mission to issue f.r'/>crr/e; A^eiv. Ch. refuses to comply with the order of Pr. 120. Depositions taken upon Court. PRACTICE. 481 Depositions. Form of Dkdimus Potestatem to take Depositions, on Notice. [Seal.] The State of Ohio, To S. T. and W., of, &c., Greeting : Know ye, that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give to you or any two of you, full power and authority to examine and take the Depositions of witnesses in a certain Cause depending in our Court of Common Pleas, within and for the County of — , wherein A. B. is plaintiff and C. D. Defendant ; * and Therefore we command you, or any two of you, that at certain days and places to be appointed by you, or any two of you, the said parties or their agents having ten days notice thereof, you cause such witnesses as may be required by the said plaintiff, [or, by either of said parties or their agents,^ to be brought before you or any two of you, and then and there examine each of them on their respective corporal oaths, (or affirmation,) first taken be- fore you, or any two of you, and that you reduce such examination to writing, and return the same, together with this writ, closed up under your seals, or the seals of any two of you, into our said Court, with all convenient speed. Witness, T. C, Clerk of our said Court of Common Pleas, at C, this — day of — , A. D. — . T. C. Clerk. Form of Dedimus Potestatum to take Depositions ; ex parte. Proceed as in the last Precedent to the (*) — on the part of the plaintiff, and therefore we command you, or any two of you, that at certain days and places to be appointed by you, you cause such wit- nesses, as may be required by the said j^laintiff, to be brought before you or any two of you, &c. [Conclude as in the last Precedent.^ To prevent mistakes in the execution of the Commission, it is cus- tomary to transmit special Instructions : Thus — Instructions to Commissioners. Columbus, Ohio, Jan. 1, 1848. Gentlemen — Inclosed is a Commission issued by the Court of — authorizing you, or any two of you, to examine witnesses in a certain cause pending in said Court. In the execution of this Commission you will please observe the following directions : 61 482 PRACTICE. Depositions. You will draw up on paper, preparatory to the examination of the witnesses, the title of the depositions, tiius : " Depositions of witnesses, produced, sworn and afiirmed on the — day of — A. D. — at — , by virtue of a Commission issued from the Court of — , to us directed, for the examination of witnesses in a certain cause pending in said Court, wherein A. B. is plaintiff and C. D. defendant. You will next administer to the witness whom you are about to examine, on oath or affirmation, that without favor or affection to either party, he will speak the truth, the whole truth, and nothing but the truth, and then proceed as follows : " G. T., of, &-C., aged — years or thereabouts, being produced, sworn or affirmed, and examined on behalf of the plaintiff or defen- dant, deposes and says, that, &c." After the examination in chief is concluded, if there be a cross-examination, say, " Upon cross-exami- nation by the defendant or plaintiff, the said G. T. further says that, &c." If the witness be re-examined by the party calling him, say, "■ Upon re-examination by the plaintiff or defendant, the said G. T. further says, that, &c. The witness will then subscribe his examination with his name, and the Acting Commissioners will put their names opposite to his signa- ture for the purpose of identifying it ; and if in the course of the examination, the witness refers to any paper, or document, it must be marked by some letter or figure, and further identified by the Acting Commissioners, thus : " This is the paper referred to by — in his examination, as the paper marked (A)," to which they will sign their names. The examination being completed, the Commissioners who conduc- ted it will attach the depositions and exhibits to the Commission, and indorse the same as follows : " The execution of this Commission ap- pears in a certain Schedule hereto annexed," to which the names of the Commissioners will be subscribed. The whole, thus prepared, will be inclosed in an envelope, sealed up, and addressed as follows : " To, &,c.," [The Court from IV hich the Commission issued.] It may then be delivered to an agent, or forwarded by mail, or other expeditious and safe conveyance.* Very Respectfully, Your obedient servant. Esq's., Commissioners. (a) It is often advisable to take the the service of such notice, especially Deposition of the person serving the if the person serving the notice re- notice, (if notice be given,) to prove sides abroad. In England, and in PRACTICE. 483 Depositions. Depositions to perpetuate Evidence. Depositions to perpetuate evidence may be taken before any two Associate Judges, or if they be interested, by any two Justices of the Peace of the County where the witness resides. All persons known to the Judges or Justices to be interested, if within the County, are to be duly notified ; or, if without the County, then their Attorney, if any they have, is to be in like manner notified. Form of Notice. To A. B., &-C., in the County of — , [or to J. S., Esq., Attorney of A. B., &fc., if not within the County.] This is to give you notice that upon the application of J. N., and pursuant to the Statute in such case made and provided, we shall pro- ceed, on the — day of — next, at ten of the clock in the forenoon of the same day, at the office of — , in the town of — and County of — in the State of Ohio, to take the Deposition of O. P., a resident of the said county of — , in perpetual remembrance of what he may know and can say touching a certain deed of release, bearing date, &c., [or ivhatever the subject matter may be,] continuing the taking thereof, if need be, from day to day, until the same is completed, at which time and place you may attend and cross-examine the witness, if you please. Witness, our hands, this — day of — A. D. — . J. C, ) Associate Judges A. C. 5 of — County. Caption: — Depositions of witnesses taken in perpetual remem- brance, on the — day of — , A. D. — , at the office of — , in the town of — and County of — , in the State of Ohio, before J. C. and A. C, two Associate Judges of the said County of — , pursuant to the Statute in such case made and provided. O. P., a resident of the said county of — . , aged — years, or there- abouts, being duly sworn, deposes and says, That, &c. some of the United States, witnesses tion is generally viva voce and the are examined upon written Interrog- testimony reduced to writing by the atories, prepared by counsel, and an- Commissioners, in the langauage of nexed to the Commission. This prac- the witness. See Depositions in the tice does not prevail to any consider- Circuit Court of the United States, able extent in Ohio. The examina- Post. 484 PRACTICE. Depositions. Certificate. The State of Ohio, — County, ss. We, A. C. and J. C, Associate Judges of the said county of — , do hereby certify, That on the — day of — , A. D. — , at the office of — , in the town of — and County of — , in said State of Ohio, being the time and place, specified in the notice issued by us in that behalf, and hereto annexed, a true copy whereof we caused to be served in due form of law upon — , before us came personally, O. P. and T, S., who, after having been carefully examined and cautioned, and sworn to testify the truth, the whole truth, and nothing but the truth, touching the matters in the said notice mentioned, did respect- ively and each for himself, in our presence, subscribe the foregoing Depositions, after the same were reduced to writing by one of us, to wit, the said A. C, [or by each of the said witnesses respectively, in our presence, in their own respective proper hands]; that the taking of said Depositions was commenced at ten of the clock in the mor- ning, and closed at — , in pursuance of said notice ; that each of said witnesses is a resident of the county of — ; and that we are not, nor is either of us, in any manner whatsoever, interested in the matters in these Depositions contained. Witness our hands, this — day of — , A. D. — . A. C, > Associate Judges J. C. 5 of — County. Certificate when no Notice is given. The State of Ohio, — County, ss. We, A. C. and J. C, Associate Judges of the County of — , do hereby certify that, on the — day of — , A D. — , in the office of — in the town of — and county of — being the time and place specified in the caption of these Depositions, before us came personally the above named O. P. and T. S., wiio after being carefully examined and cautioned, and sworn by the said A. C. to testify the truth, the whole truth, and nothing but the truth, touching the matters in these Depositions con- tained, did respectively, and each for himself, in our presence, sub- scribe the foregoing Depositions, after the same were reduced to wri- ting by one of us, to wit, the said A. C, [or in our presence, hy each of the said witnesses, respectively , in their own respective proper hands]] that we are not, nor is cither of us, in any manner whatso- ever, interested in the matters in these Depositions contained ; that no notice of the time and place of taking these Depositions was given, because we did not, nor did either of us know of any person or per- PRACTICE. 485 Depositions in the Circuit Courts of the United States. sons interested, either directly or indirectly, or otherwise to be affect- ed by these Depositions, nor of any Attorney of any such person or persons ; and that the said O. P. and T. S. and each of them are residents of the said county of — . Witness, &c. If the Depositions affect real estate, they are be recorded in sixty days, in the office of the Recorder of deeds in the county where the real estate lies ; but if personal estate, then in the office of the Clerk of the Court of Common Pleas in the County where they are taken ; Swan's Stat. 327, <§. 1. Depositions in the Circuit Courts of the United States.^ By the Act of Congress of 1789, (U. S. Stat. At Large, 88,; it is provided that " when the testimony of any person shall be neces- sary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the (a) The authority to take depositions if it were shown by parol either that ex parte, being in derogation of the the party resided within the one CommonLaw,istobe construed strict- hundred miles, or that he was tem- ly ; IPet.'Sbl. A certificate that the porarily within that distance, and that deposition was reduced to writing by the magistrate knew it, a certificate the Witness, in his own proper haiid, that neither the party nor his attorney is defective unless it is certified to lived, within the one hundred miles have been so done in the presence of would be void ; Id. Prima facie, the magistrate ; Id. A certificate in the ofHcer is to be presumed, defac- due form is good evidence of the facts to, and dejure, such as he by his certified ; Id. A certificate that nei- official act describes himself to be ; ther the adverse party nor his attor- Paine' s C. C. Pep. 358. The certi- ney lived within one hundred miles ficate must show that the deposition of the place of caption, and that there- was reduced to writing either by the fore no notice was given, is sufficient; magistrate himself, or by the -witness 5 Howard, 7. It is not necessary for in his presence ; 4 TVash. C. C. Pep. the magistrate to certify that they 215; 4 Day, 121. The right to were not actually within one hundred take depositions ex parte, under the miles ; if they had been temporarily Statute, is not confined to depositions within that distance, and the magis- taken within the District where the trate did not know it, a certificate that Court is held ; 5 Pet. 604 ; See 3 they did not five within the one hun- TVash. C. C. Pep. 408. In all cases dred miles would be sufficient ; but of depositions de bene esse, except 486 PRACTICE. DepositioDB in the Circuit Courts of the United States. time of trial, or is ancient, or very infirm, the deposition of such per- son may be taken, de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notifi- cation from ihe magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurisdiction, or other cases of seizure, when a libel shall be filed, in which an adverse party is not named, and de- positions of persons, circumstanced as aforesaid, shall be taken before where the witness lives at a greater of Tuscany had laid several persons distance than one hundred miles, the by the heels for executing a Corn- party offering the deposition is to show ^ mission to examine witnesses in his that the disability of the witness to at- Dominions without his leave ; Ch. tend continues ; /(/. ; 1 Brock. 367. Prec. 83. When the government of Depositions under a dedimus can the place where the evidence is to be never be considered as taken de bene obtained, will not permit a Commis- esse; 4: Wheat. 508. The authority to sion to be executed, the Court will take depositions ex parte, applies to issue Letters Rogatory, according to the Circuit Courts only, and not to the practice of the Civil Law ; Pe- the Supreme Court; 2 Wheat. 287. ters' C. C. Pep.2So. The Form in In the latter Court they can be taken that case was as follows : only on Commission ; Id. There are two modes of taking depositions „ under the Act of Congress : By the United states, _ ^ ^^ r;„ , ^ .• • , -^ ••' . District 01 Pennsylvania, \ lirst, notice in certain cases is not -^ ' -' necessary, but 'the forms prescribed must be strictly pursued : By the The President of the United States to second, depositions may be taken by ^"7 Judge or Tribunal having Ju- dedimus potestatem, according to risdiction of civil causes at Havan- common usage ; 3 Crunch, 293.— "a. Greeting : Where a deposition was directed to the Clerk of the Court, and he, sup- Whereas a certain suit is pending posing it to be a letter on official bu- before us in which John D. Nelson, siness, opened it out of Court, Held Henry Abbott and Joseph E. Tatem, inadmissible ; 8 Crunch, 70. are the claimants of the schooner Lord SoMMERS doubted if a/omg-n- Perseverance and cargo, and the er can be served with a subpoena in u United States of America are the de- foreign country; and Hutchins said, fendants ; and it has been suggested he remembered that the great Duke to us, that there are witnesses, resi- PRACTICE. 487 Depositions in the Circuit Courts of the United States. a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the li- bellant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence And the depositions so taken shall be retained by such magistrate, until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given, to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court.'' By the same Statute, it is also provided that any Court of the Uni- ted States may issue a dedimus potestatem, according to common usage ; Id. § 30. Forms in taking Depositions ex parte. Caption. Depositions of witnesses taken before me, A. B., one of the Judges, &fc., at the office of X. W. in the Town of — County of — and State of — aforesaid, on the — day of — A. D. — to be read in evidence on the part of the plaintiff in a certain suit in Chancery, pending in the Circuit Court of the United States of America, within and for the Seventh Circuit and District of Ohio, wherein — is plaintiff and — is defendant. ding within your jurisdiction, without whose testimony, justice cannot com- pletely be done between the said par- ties. We therefore request you, that in furtherance of justice, you will, by the proper and usual process of your Court, cause such witness or wit- nesses, as shall be named or pointed out tc you by the said parties, or ei- ther of them, to appear before you, or some competent person, by you for that purpose to be appointed and authorized, at a precise time and place by you to be fixed, and there to answer on their oaths and affirma- tions, to the several interrogatories hereunto annexed ; and that you will cause their depositions to be commit- ted to writing, and returned to us under cover, duly closed and sealed up together with these presents. — And we shall be ready and willing to do the same for you in a similar case when required. Witness, &c. See Ante. 473, note (a). 488 PRACTICE. Depositions in the Circuit Courts of the United States. A. W. of the City of — aged — years or thereabouts, being pro- duced, sworn, [or affirmed] on behalf of the plaintiff] [or defendant, as the case may he] deposeth and saith : That, &c. [stating the evi- dence.] Certificate. The United States of America, State of — County of — ss. I, A. B., one of the Judges, SfC, do hereby certify that on the — Jay of — A. D. — at — in the said County of — being the time and place specified in the Caption of these Depositions, before me, came personally the above named C. D, and E. F. who, after being carefully examined and cautioned, and sworn to testify the truth, the whole truth, and nothing but the truth, in the cause named in the Caption of these Depositions, did respectively, and each for himself, in my presence, subscribe the foregoing Depositions, after the same were reduced to writing by me, [or in my presence, by each of the said ivitnesses respectively in their own respective proper hands] ; that I am not of Counsel or Attorney to either of the parties in the cause aforesaid, or in any manner whatsoever interested in the event thereof; that no Notice of the time and place of the taking of these Depositions was given to the said defendant, or his Attorney or Agent, because neither of them, as I know or believe, was then within one hundred miles of the said — , the place of taking the same ; and that the said C. D. arid E. F. [namitig each ivitness] and each of them, live and reside at a greater distance than one hundred miles from the City of Columbus, [jilace of Trial] in the District of Ohio. All which is certified by me, at — aforesaid, this — day of — A. D. — . A. B., Judge, 8fc. [full title].'' (a) The following Form of a Cer- deposition of the said William Chris- tificate was held good in Dick v. ty was taken as aforesaid, because Runnels, 5 Howard, 7 ; the objection he, the witness, lives at New Orleans taken to it and overruled was, " that aforesaid, a greater distance than one the Commissioner taking said Deposi- hundred miles from Jackson, the tion did not certify that neither the place of trial of the suit or matter of said defendant or his attorney were controversy aforesaid, and I caused within one hundred miles of New no notification of the time and place Orleans, the place of taking the De- of the taking of said deposition to be position, at the time of taking the made out and served upon Harden same :" D. Runnels, the adverse party, or his counsel, to be present at the taking " And I, the said Paul Bertus, re- of said deposition, and to put inter- corder of the first municipality, and rogatories, if he or they thought pro- acting mayor of the city of New Or- per, because neither the said Hardin leans aforesaid, do certify, that the D. Runnels nor his counsel hve with- PRACTICE. 489 Depositions in the Circuit Court of the United States. Thus finished, the Depositions may be retained by the magistrate until he deUver the same with his own hand into the Court for which they were taken, or they may be inclosed by him in an envelope, and sealed up, his name written across or by the side of the seals ; and on the back the title of the suit, indorsed thus, " A. B. v. C. D. De- positions : — Not to be opened but in the presence of the Court." The whole is then addressed. To the Hon. the Judges of the Seventh Circuit Court of the United States for the District of Ohio, Columbus, Ohio. It may then be forwarded by mail, delivered to an agent, or forwarded by any expeditious and safe conveyance ; to be deposited with the Clerk of the Court, there to remain, under seal, until opened according to the Rules of the Court. Forms in taking Depositions on Notice. Notice. ;-D-, ) A — B — , ^ In Assumpsit : — In the Circuit Court of the United States of America, for the Seventh Circuit, and District of Ohio. To C. D., the Defendant in the above cause : This is to give you Notice, that upon the application of the above named plaintiff, and in pursuance of the Act of Congress in such case made and provided, I shall proceed, on the — ■ day of — next, at Nine o'clock in the morning of that day, to take the Depositions of E. F. and others, at the house of — situate at — in the County of — and State of — continuing the taking thereof, if need be, from day to day, until completed ; which Depositions are to be used as evidence on the trial of the above cause ; the said witnesses living more than one hundred miles from Columbus, in the District afore- said, the place of trial ; at the taking whereof, at the time and place in one hundred miles of the place of aforesaid, or interested in the event caption to this deposition, being the of the cause or controversy aforesaid, place where the same is taken ; and " In testimony whereof I have I do further certify, that the deposi- hereunto set my hand and tion was taken down by the witness, [seal.] seal, the day and year first and signed by him in my presence, before written, after being duly sworn ; and I do Signed, Paul Bertus, further certify, that I am not of coun- Recorder No. 1, Mayor pro tern." sel or attorney to either of the parties 62 490 PRACTICE. Depositions in the Circuit CoUrt of the United States. aforesaid, you may attend and cross-examine the witnesses if you please. Witness my Signature and Seal of Office this — day of — A. D. [Seal.] J. W., Mayor, ^c. The Notice is to be served on the Party or his Attorney, as either may be nearest to the place of Caption, allowing one day for every twenty miles travel ; 1 U. ^. Stat. At Large, 88, <§> 30. Caption. Depositions of Witnesses taken on the — day of — A. D. — at the house of — situate at — in the County of — and State of — to be read in evidence on the part of the plaintifl^, in a certain suit in Chancery pending in the Circuit Court of the United States of Ame- rica, within and for the Seventh Circuit, and District of Ohio, where- in A. B. is plaintiff and C. D. is defendant, in pursuance of the en- closed Notice.'' Certificate. The United States of America, State of — County of — ss. I, A. W., Mayor, ^c, do hereby certify, that on the — day of — A. D. — at the house of — situate at — in the County of — and State of — being the time and place specified in the Notice issued by me in that behalf, and hereto annexed, before me, came personally E. S. and T. S. who, after being carefully examined and cautioned, and sworn to testify the truth, the whole truth, and nothing but the (a) It is often convenient to prove king Depositions in said cause, the service of Notice by a Deposition whereof the following is a true copy, taken at the same time with the oth- to wit. [^Here set out the Notice,'] ers — Thus: and that the said C. D. at the time of the service of said Notice, resided E. F. of, &c., aged — years or at — , which is distant from — [/Ac thereabouts, being produced, sworn, place of Caplio)f\ — miles; and that and examined on behalf of the plain- at the same time T. S., the Attorney fj^ dcposeth and sailh, that on the of the said C. D., resided at — Avhich — day of — A. D. — he left with is distant from — aforesaid \Jhe place C. D, the defendant in the cause of Caption'] — miles : And further named in the Caption of these Depo- this Deponent saith not. sitions, [or with T. S. his Attorney, E. F. as either may be nearest to the place J. W., 3Iayor, <^-c. of Caption,] a written Notice for ta- PRACTICE. 491 Depositions in the Circuit Court of the United States. truth, in the cause named in the Caption of these Depositions, did respectively, and each for himself, in my presence, subscribe the fore- going Depositions, after the same were reduced to writing by me, [o?* in my presence, by each of the said ivitnesses, respectively, in their own respective proper hands] ; that the taking of said Depositions was commenced at 9 o'clock in the morning, and closed at — in pur- suance of said Notice ; that all of the said witnesses live and have their place of dwelling more than one hundred miles distant from Columbus, in the State of Ohio, the place of Trial ; that I am not of Counsel or Attorney to either of the parties in the cause aforesaid, or in any manner whatsoever interested in the event thereof. Witness, my Signature and Seal of Office, this — day of — A. D. [Seal.] A. W., Mayor, ^c. [full title.] Form of Dedimus Potestatem.'^ The President of the United States of America, to Greeting : Know ye, that in confidence of your prudence and fidelity, you have been appointed, and by these presents you, or any two or more of you, are invested with full power and authority to examine — , on his corporal oath, as a witness in a cause depending in the Circuit (a) Where a Dedimus issues from terrogatories named, or either, and the Courts of the United States, In- which of them, and how long, &c.? terrogatories in all cases are to be Declare the truth and your knowl- filed. edge therein. Form of Interrogatories. Second Interrogatory — Did or did not the said Thomas Atkins, in Interrogatories to be adminis- the foregoing Interrogatories named, tered to winesses to be produced, ever, and when, and where, in your sworn and examined, in a certain sight or presence, or in the presence cause depending in the Circuit Court of any and what other person or per- of the United States of America, sons, to your knowledge, sign, seal, within and for the Seventh Circuit pubHsh or declare, his last will and and District of Ohio, wherein A. B, testament in writing, or any and what is complainant and CD. is defen- writing, as and for, or purporting to dant : on the part and behalf of the be, his last will, &c.? Declare, 8fC. said complainant ; That is to say — Third Interrogatory — Do you First Interrogatory — Do you know of any apphcation or applica- know the parties, complainant and tions which have been made by or defendant, in the Title of these In- on behalf of the above named com- 492 PRACTICE. Depositions in the Circuit Court of the United States. Court of the United States, for the — circuit and district of — , [or, in the District Court of the United States, in and for the district of — j] wherein — is plaintiff, and — defendant, on the part of the — , upon the interrogatories annexed to tliis commission ; and there- fore you are hereby commanded, that you, or any two or more of you, at certain days and places to be appointed by you for that purpose, do cause the said — to come before you, and then and there examine him on oath upon the said interrogatories, and that you take such ex- amination, and reduce the same into writing, and return the same annexed to this writ, closed up under your seals, or the seals of any two or more of you, into the said Circuit [or District] Court, before the Judges [or Judge] thereof, with all convenient speed. Witness, &c. The interrogatories, and cross-interrogatories, (if any,) are to be an- nexed to the commission, and the depositions are to be drawn up in the usual form. plainant to the above named defen- dand, for the payment of the Legacy of — dollars in the pleadings in this cause mentioned, to have been be- queathed to or for the benefit of the said complainant. If yea, set forth when, or about what time or times, respectively, and by whom by name, and to whom and where, such appli- cation or applications was or were so made, and whether the same was or Avere in any and what manner com- plied with or assented to, or refused and rejected, and by whom and for any and what reasons? Declare, ^-c. Lastly — Do you know of any other matter or thing, or have you heard, or can you say, anything touching the matters in question in this cause, that may tend to the ben- efit and advantage of the complain- ant in this cause, besides what you have been interrogated tiiereto ? If yea, declare the same fully, and at large, as if yon had been particularly interrogated thereto. The liulcs to be observed in exe- cuting a commission vary in diiferent Circuits. The following prevail in the District of Pennsylvania : Philadelphia, March 1, 1848. Gentlemen — You have lately received a commission, issued by the Circuit Court of the United States, in and for the District of Pennsylva- nia, in the Third Circuit, authorizing one of you, namely, A. B., in con- nexion with either, or both of the others, to examine Avitnesses in a certain cause depending in the said Court, wherein M. N. is plaintiff", and O. P. is defendant, upon the In- terrogatories annexed to the commis- sion ; and for your guidance I beg leave to add the following instruc- tions : Having agreed upon the time and place of meeting, of which a reason- able notice should be given to the agent who attends to the execution of this commission, that he may col- lect the witnesses, you will proceed at the time and place appointed, to execute the commission in the fol- lowing manner : You will draw up on paper, pre- paratory to the examination of the witnesses, the following headino-, style or title, of the Depositions, viz : " DeiDositions of witnesses pro- duced, sworn, [or affirmed^ and ex- PRACTICE. 4913 Depositions in the Circuit Court of the United States. Form of Subpoena for Witnesses before Commissioners, The President of the United States of America, to Greeting You are hereby commanded, that, laying aside all business and ex- cuses, you and each of you be and appear in your proper persons, before — and — , commissioners duly appointed and authorized in virtue of a commission from the Circuit Court of the United States for the — circuit and district of — , [or, District Court of the United States for the district of — ,] to examine you as a witness in a cause de- amined on the — day of — , in the year of our Lord — , at the house of — , in the City of Boston, in Massa- chusetts, by virtue of a commission issuing from the Circuit Court of the United States in and for the District of Pennsylvania, in the Third Cir- cuit, to A. B., C. D. and E. F. di- rected, for the examination of wit- nesses in a certain cause depending- in said Court, wherein M. N., a citi- zen of — is plaintiff, and O. P., a citizen of — is defendant." You will next administer to the witnesses whom you are about to examine, an oath or affirmation, in the estabhshed form of the place, if the same be binding on his con- science, if not, you will administer to him such oath or affirmation as may be binding on his conscience, to make true answers to all such questions as shall be asked upon the interrogato- ries annexed to the commission, with- out favor or affection to either party, and therein to speak the truth, the whole truth, and nothing but the truth. After having demanded from the witness his name, addition or ti- tle, and age, you will draw up in writing his answers to the interroga- tories, as follows : " A. B., of the city of — , aged — years or thereabouts, being produced, sworn [or ajffirmed~\ and examined on behalf of the plaintiff, \or defendant. as the case may be,'] deposeth as fol- lows : " 1. To the First Interrogatory on the part of the plaintiff, \or defen- dant, as the case may be,] he an- swers as follows : and then set down his answer. . " 2. To the Second Interrogatory on the part of the plaintiff, [or defen- dant, as the case m,ay be,~] he an- swers as follows : " and so on through the rest of the interrogatories, until the whole are answered. The witness must then subscribe his examination with his name, or his mark, if he cannot write, and the Acting Commissioners must subscribe their names opposite to his signature or mark, for the purpose of identify- ing it, and must also subscribe their names at the bottom of every pao-e of testimony ; and if, in the course of the examination, the witness shall pro- duce, or refer to any paper, exhibit, or document, the same must be marked by some letter or figure, and further identified by the Acting Com- missioners in the following manner : " This is the paper, exhibit, or document referred to by — m his examination, as the paper marked A,, &c." to which the commissioners and the witnesses will sign their names. The commissioners are requested distinctly to observe that every ques- tion, under each interrogatory, must 494 PRACTICE. Motions. pending in the said Circuit, [or District] Court, wherein — is plain- tiff, and — is defendant, on the part of the — , upon interrogatories annexed to the said commission, at — on the — day of — at — o'clock in the — noon, to answer truly all such questions as shall then and there be asked of you upon such interrogatories ; and this you, or any of you, shall by no means omit, under the penalty upon each of you of — dollars. Witness, &c. MOTIONS.^ A Motion is an application to tiie Court for some Rule or Order, and is generally made in open Court. The English practice of ap- plying for an Order to a single Judge, out of Court, does not prevail be answered by the witness, if it be merely to declare that he is ignorant of the matter in(]uired of; and that an omission to answer any one will be fatal to the whole examination. They will also please to observe, that a rigid observance of the forms herein prescribed is essential, and that the disregard of any one of them may render their labor of no eflect. Having in this manner examined all the witnesses produced, upon all the interrogatories, such of you as shall have conducted the examina- tion, A'-iz, A. B., and with him both or either of the other gentlemen, (but both of them should be notified of the time and place of examination, and if one of them takes no part in the business, it should nevertheless be certified by the Acting Commis- sioner that he had notice of the meeting,) must bind up the Deposi- tions and exhibits, together with the Commission, some tape passing thro' and connecting the Avhole ; and you will then make the following indorse- ment upon the Commission : " The execution of this Commis- sion appears in a certain Schedule hereunto annexed," to which you will also subscribe your names. Thus prepared and executed, you Avill inclose the same in an envelope, sealed with your respective seals, your names written across or by the side of the seals, and the whole ad- dressed. To the Clerk of the Circuit Court of the United States for the District of Pennsylvania, in the Third Circuit, at Philadelpliia. It may then be delivered to the agent, or forwarded by the most expeditious and safe conveyance to the Address of the Clerk as above, or under cover to my Address, Philadelphia, I am, very Respectfully, Your Obedient Serv't. A- B— , -) C — D — and t Esq's., Com'rs. E— F— , (a) Courts of Justice, in modern times, in entertaining Motions, go on the principle of doing right and jus- tice between the parties ; 3 Ohio Rep. 519. Actions may be consolidated on Motion ; 18 Eng. Com Law Rep. 210, note (a). So an inspection of documents in the hands of the adverse party may be ordered on Motion ; 26 Eng. Com. Law Rep. 315, note (a); 4 Burr, 3488. See 7 Monroe, 234. But a case dismissed at one Term PRACTICE. 495 Motions. to any considerable extent in Ohio. The course of proceedings upon Motions, as the time and manner of giving Notice to the opposite party, &.C., is, in general, regulated by the Rules of Practice adopted by every Court, and which vary very much in different circuits. In most cases, any Motion or application for a special Rule or Order, with the grounds thereof, is required to be reduced to writing and filed with the Clerk a reasonable time before it is called up for argument. And it is important to observe that if a Motion is to be reviewed on Certioi'ari, or perhaps in any other way, the facts proved or admitted on the hearing must be made part of the record, by Bill of Excep- tions or otherwise ; Wright, 1 30, 588. See Certiorari. cannot be re-instated at a subsequent Term; 5 Jio?iroe, 450. Where the papers in a cause are lost, stolen, &c., they may be supplied by parol, on Motion ; 7 Monroe, 244 ; 7 Dana, 547; 8 do. 201. If a plea shows on its face that it is a sham plea, it may be struck out on Motion ; 1 Black/. 347. If the Court be equally divi- ded on a Motion in arrest of Judg- ment, the Motion fails ; Godenow v. Tappan, 1 Ohio Rep. 60. See JVad- die V. Bank of U. States, 2 Ohio Rep. 336; Bank U. S. v. Schidtz, 2 Ohio Rep. 471 ; Curtis v. The State of Ohio, 5 Ohio Rep. 324. It is error to overrule a Demurrer on Motion : There should be a joinder in order to make up an issue to the Court ; Edmiston v. Edmiston, 2 Ohio Rep. 251. A Motion to set aside a levy on property alledged to be exempt from execution, is addres- sed to the sound discretion of the Court, and is not, as a matter of course, subject to revision in the Su- preme Court ; Bliss v. Ensloiv, 3 Ohio Rep. 269. A Motion is the proper remedy to set aside a judg- ment against a party not served with a process, and for whom an Attorney has entered an appearance without autho:;ity ; Critchjield v. Porter, 3 Ohio Rep. 519. Where an order is made, on notice, and without objec- tion, it must be an extraordinary case where a Court will afterwards enter- tain a Motion to set aside such order; Foivble V. Walker, 4 Ohio Rep. 64. Motions to set aside Nonsuits and Defaults, for New Trials, to amend Pleadings, &c., are addressed to the sound discretion of the Court; lb. Judgments, unless between the same parties and in the same rights, can- not be set-oft", on Motion ; Holmes V. Robinson, 4 Ohio Rep. 90. Where a case, not within the juris- diction of a Justice of the Peace is appealed, a Motion to quash the pro- ceedings may be made by the defend- ant, although a declaration has been filed, and he has plead to it: For the Court has no jurisdiction; Ni- chol V. Patterson, 4 Ohio Rep. 200. Under the Act of 1831, the plea of plene administravit, it seems tenders an immaterial issue, and it may be struck out, on Motion ; Mbott v. Cole, 5 Ohio Rep. 86. It is the gen- eral practice of the Court in Bank not to receive original Motions, but determine only such questions as are reserved in the County. Gazzam v. Cin. Ins. Co. 6 Ohio Rep. 71 ; S. P. Taylor v. Alexander, 6 Ohio Rep. 144 ; Buckley's Lesse v. Osburn, 8 Ohio Rep. 180; Remington v. Har- rington, 8 Ohio Rep. 507. On a Motion to amerce a Sheriff, pleadings are not necessary ; Wadsivorth v. Parsons, 6 Ohio Rep. 449. It is one of the plain and accustomed remedies of a Court of Law, to afford, on Mo- 496 PRACTICE. Motions. Form of Motion. A— B— , ^ V. > In Case. C— D— . 3 The said C. D. now comes and moves the Court for a ]\ew Trial, or, i;i Arrest of Judgment, ^-c, in this cause, lor the following rea- sons : 1. Tiiat, &c. A— B— , V. C— D— , Journal entry of Motion. In Case. This day the said C. D. by Mr. O. his counsel, moved the Court for a New Trial, or, in Arrest of Judgment, fyc, in this cause, for reasons on file. tion, full and adequate relief against judgments irregularly or improperly obtained, where there is no fault or negligence on the part of the judg- ment debtor ; Mc Gee v. Bank of Mt. Pleasant, 7 Ohio Rep. 175, Part 2d ; Thus, where one partner, without au- thority from his co-partner, executes a warrant of Attorney under a seal, to confess a judgment, in the name of the firm; and a judgment is accor- dingly confessed ; the partner whose name was so used without authority, may be relieved on Motion to set aside the judgment : In such case. Equity will not interfere, because the remedy at Law is complete ; lb ; S. P. Where a judgment is taken on a warrant of Attorney, including ille- gal interest ; Shellon v GUI, 1 1 Ohio Rep. 117. When; a plaintiff's cause of action, as indorsed on the writ, is upon two bills of exchange, and also lor money had and received, and the plaintiff puts into his declaration a Count on an account stated ; Such Count would not be struck out on Motion : It would be carrying the ni- cety of the Law too far ; Peahody v. Fisher, 8 Ohio Rep. .535. On appeal, the Supreme Court has no power to discharge the security in the appeal bond, in order that he may be a wit- ness ; Stanberry v. Mitten, 8 Ohio Rep. 546. A Motion is the proper re- medy to compel the Sheriffto pay over moneys collected on execution — equi- ty in such case has no jurisdiction; Douglass V. Wallace, 1 1 Ohio Rep. 42. Where a case on Error to the Court of Common Pleas is reserved for decision in Bank, and it appears, on inspecting the record, that no final judgment has been rendered in the Common Pleas, a Motion may be made in Bank to strike the case from the docket; Kelly y. Hunter, 12 Ohio Rep. 216. Where a cause is certi- PRACTICE. 497 Motion for Continuance. Motion for Continuance.^ Continuances, in England, may be entered up at any time , 6 T. R. 618; 1 Tidd, 183, note (d). And tiie want of a Continuance is aided by the appearance of the parties ; 1 Wils. 40 ; 6 Petersd. Abg. 171. So the want of Continuance is aided by the Statute of Jeofails ; and where error is brought, the want of a Continuance shall not be assigned for error ; 1 Lee^s Did. of Practice, 376. In Ohio, it seems necessary that every case be continued, by a proper entry on the Journal, from one Term to another, until the final determination of the suit. Continuances are granted sometimes as a matter of course, sometimes by consent of parties, and sometimes upon cause shown. In general, the grounds for a Continuance are submitted to the Court, in the shape of an Affidavit, and the application is rejected or allowed in the discretion of the Court. fied to the Supreme Court, on ac- count of interest in the Judges of the Court of Common Pleas, the certifi- cate must show how they are inte- rested ; Knaggs v. Conant, 2 Ohio Rep. 20. Where a Court, by virtue of a Statute, makes an order, at one term, but the order is not entered on the records ; the Court, at a subse- quent term, and after the Statute giv- ing the authority is repealed, cannot cause the order of the first term to be entered nunc pro tunc, Ludloio's heirs v. Johnson, 3 Ohio Rep. 553. An order of the Common Pleas, dis- tributing fees between the present and a late Sheriff, will not be disturbedby the Supreme Court, unless in a case of gross injustice; Avery v. Rujffin, 4 Ohio Rep. 420. If, after suit brought, the plaintifi' leaves the State, it seems he may be ruled to give se- curity for costs ; Noble v. Shearer, 7 Ohio Rep. 426. A Court of Law has no authority to refer accounts to a Master, or an Accountant, to report upon, without the consent of both parties ; Johnson v. Wallace, 7 Ohio Rep. 62, Part 2d. A notice of Ap- peal, marked by the Court on its dock- et, but not carried into the Journals, 63 is not a compliance with the Statute requiring such notice to be entered on the Records : nor can the omission be cured by a jiunc pro tunc order at a subsequent term ; Moore v. Broion, 10 Ohio Rep. 197. The Supreme Court, in cases of appeal, exercise a discretion in allowing the parties to amend their pleadings, but they are to be put under such equitable rules as the Court may conceive to be ne- cessary to prevent delay ; Sheets v, Baldwin, 12 Ohio Rep. 120. (a) For general Rules regulating Motions, See Ante. 494. The whole English Practice of admitting Affida- vits for the Continuance of a cause is modern ; 3 Day, 308. In some ca- ses ttae power to grant Continuances is incidental to the Court ; 13 East, 352; The pendency of a Bill of Discovery is no ground of Continu- ance without an injunction ; 2 Bibb, 468 ; Wright, 108. The Affidavit cannot be amended after the Court have gi\-en their opinion ; 4: Monroe, 369. For rules regulating Affida- vits, See 2 Litt. 230. If a party agrees to admit what a witness would say, the absence of the witness is no 498 PRACTICE. Motion for Continuance. Form of Affidavit fou Continuance fou the absence of a Witness. A— B— , ^ V. > In Case. C_ D— , ) The said C. D. makes solemn oath, that E. B. of, &,c. is a material witness for him, in this cause, without whose testimony, he cannot safely proceed to the trial thereof, as he is advised and verily believes to be true ; that on — this deponent sent to the place of residence of the said E. B. for the purpose of serving him with a subpoena in this cause, but the said E. B. was absent on a journey to — , from whence he is not expected to return until some time after the expiration of the present term of this Court, as this deponent is informed and verily believes to be true ; that deponent hopes and expects to procure the attendance of the said E. B. at the next term of this Court ; and that this affidavit is not made for delay merely, but for the purposes of justice. C. D. Subscribed and sworn to in open Court, this — day of — A. D. Attest : F. C. Clerk. The Journal entry of a Continuance may be in this Form : A— B— , ^ V. > In Case. C— D— , ) Continued, or-, continued at the costs of defendant, or, plaintiff, [as the case may be.] ground for a Continuance ; 6 Lilt, quash the proceedings of a Justice of 402. But in some cases the party the Peace, for want of jurisdiction, may be required to admit the very tlie case, it seems, ought to be con- fuct; 5 Dana, 298. Some kind of tinued for further proceedings ; Ilar- counter affidavits may be admitted, ding v. Trustees of Neio Haven Tp. as to show that the witness has been 3 Ohio Rep. 227. On a scire facias absent for some years ; 3 Day, 308. to subject real estate to a Justice's A Continuance will not be granted judgment, the defendant is not enti- for want of security for costs, unless lied to a Continuance ; but the Court the omission has prevented the pre- may award execution at the return paration of the case ; Wright, 738. term of the scire facias ; Hill v. If the Common Picas on certiorari Kling, 4 Ohio Rep. 135. PRACTICE. 499 Motion for JNonsuit. In some Counties it is customary, at the close of every Term, to make a general Order, continuing over all causes and other matters, not otherwise disposed of, to the next Term. Motion for Nonsuit.* Motion for Nonsuit on Plaintiff^ s failing to make out his Case, In Case. This day came the parties by their Attorneys, and thereupon came a jury, to wit, E. F. &c. who, being empanneled and sworn, the truth to speak upon the issue joined between the parties, the plaintiff gave to the jury certain matters in evidence, and rested his case ; where- upon the defendant moved the Court to direct a Nonsuit, by reason that the matters aforesaid, so given in evidence as aforesaid, by the (a) For general Rules regulating Motions, See Ante. 494. Where the plaintiff closes his case on parol evidence, the defendant cannot show there was a written agreement, and so nonsuit the plaintiff; 32 £ng. Com. Law Rep. 419. There may be a nonsuit after evidence given on both sides ; 21 Wend. 109. Where a plaintiff does not appear, a verdict cannot be taken against him, though there be a plea of tender : — He must be nonsuited; 11 £ng. Com. Law Rep. 107. In the Courts of the United States a nonsuit cannot be ordered against the will of the plaintiff; 1 Pet. 471 ; See 5 Blackf. 115. In Ohio, the Court may direct a nonsuit for irrele- vancy of testimony, and on various other grounds ; Swan's Stat. 676, 555. And when ordered the Court will compel obedience, and not leave it optional with the plaintiff to comply or not ; if the plaintiff refuse, the Court cannot order the jury to find for the defendant ; Wright, 334, 337, 420. A plaintiff, after the jury has retired, cannot, by giving notice that he will not answer at their return, compel the defendant to have him called and nonsuited — the verdict may be taken in his absence ; Id. 383. Nonsuits are ordered where there is a total failure of evidence ; and where, taking all the evidence as true, it makes no case for the plaintiff: — but if refused on the ground of there being a prima facie case, and the plaintiff introduce fur- ther evidence which destroys his prima facie case, a Nonsuit will be ordered ; Id. 55, 660, 739. Where the evidence tends to prove the plain- tiff's case, a Nonsuit will not be ord- ered, but the effect of the evidence left to the jury ; Id. 53, 380, 507, 758. Nor where the party will sup- ply the defect ; /(/. 38. Nor because the plaintiff has introduced an item of evidence tending to defeat his right; Id. 764. A Nonsuit leaves the plain- 500 PRACTICE. Motion to produce Books and Writings. plaintiff, do not support the case set forth in the declaration ; and the arguments of counsel being thereupon heard, and due deliberation had, the Court are of opinion, that for the reason aforesaid, the plain- tiff be nonsuited ; whereupon the jury are discharged from further consideration of the premises : Therefore It is considered, that the defendant go hence, without day, and recover of the plaintiff his costs in tliis behalf expended, taxed to — dollars.* Motion to produce Books and Writings.'' The Supreme Court and Court of Common Pleas, in the trial of actions at law, are authorized, on Motion, and on ten days' notice tiff at liberty to bring a new suit ; whereas a judgment for the defend- ant is a bar ; Id. 420. In Replevin, the plaintiff may appeal from a vol- untary judgment of Nonsuit ; Reed V. Carpenter, 2 Ohio Rep. 79. A Nonsuit is not allowed after verdict ; Taylor v. Jllexander, 6 Ohio Rep. 144. An appeal does not lie from a Nonsuit, unless it appears from the minutes to have been ordered by the Court ; Bradly v. Snealh, 6 Ohio Rep. 490. A Nonsuit before a Jus- tice may be appealed ; Wright, 70. In many cases where it is clear the action will not he, although the ob- jection appears in the record, and might be taken advantage of by mo- tion in arrest of judgment, or by writ of Error, Judges are in the habit of directing a Nonsuit ; Poivell v: Jones, 12 Ohio Rep. 35 ; See 14 Ohio Rep. 606. A party surprised by the ab- sence of a witness, may, after the tri- al has progressed, be permitted to become nonsuit ; and such Nonsuit may be opened, and a new trial had, for cause ; Wright, 55, 499. Mo- tions for Nonsuit are addressed to the sound discretion of the Court, and if improperly refused, a Court of error will not examine it; Id. 758. An order of Nonsuit which has taken the party by surprise, may be opened up, if he appear to have a meritorious cause ; Jd. 352. After notice to pro- duce papers at the trial, if the party refuse, the Court may order a Non- suit, or enter judgment against him as by default ; Id. 584. If the Com- mon Pleas order the jury to find for the defendant, as in case of Nonsuit, and the judgment be for the defend- ant, saving to the plaintiff his rights, as in case of Nonsuit, a Court of Er- ror will reverse the judgment, regard the first order as one for a Nonsuit, and give judgment for costs upon it ; leaving each party to pay costs in Error ; /(/. 489. (a) A Nonsuit for irrelevancy of testimony is substantinlly in the same Form. For Forms of Nonsuit for ivant of Declaration, ^-c, See Judg- ments in Assumpsit, Ante. 176. See also Bills of Exceptions, Ante. 412. (b) For general Rules regulating Motions, See Ante. 494. Under the Statute, a party may call upon his adversary to produce papers in his possession material to the issue, at the trial ; and if withheld, the Court will compel their production, or give judgment by default or nonsuit ; Wright, 584. And where a writing, the foundation of the action, is in PRACTICE. 501 Motion to produce Books and Writings thereof, to order the parties to produce Books and Writings in their possession or power, which contain evidence pertinent to the issue, in cases, and under circumstances, where they might be compelled to produce the same, by the ordinary rules of proceeding in Chancery ; and if the plaintiff fail to comply with such order, judgment of non- suit may be rendered against him ; and if the defendant fail to com- ply with the same, judgment may be rendered against him by default ; Stvan's Stat. 676, *§> 113. Form of Notice to produce Books, etc. A— B— , ^ V. > In Assumpsit — Common Pleas. C— D— , ) The said C. D. will take Notice, that on the — day of — next, at 10 o'clock in the morning, or as soon thereafter as counsel can be heard, application will be made to the Court, by the said A, B., for an Order upon the said C. D. to produce, on the trial of this cause, the following Books, &c. [desc7iption,] in the possession or power of the said C. D., and which contain evidence pertinent to the issue in this cause. Dated, &c. A, B. Affidavit of Service of Notice. T. S. of, &c. makes oath and says, that on the — day of — A. D, — [at least Ten days before the application] he served the within Notice upon the ivithin named C. D. by delivering to him in person a true copy thereof, at Sworn to, &c. T. S. possession of the defendant, and he Pennsylvania, the production of has been notified to produce it, or if Books, Papers, &c. may be enforced it has been lost, evidence may be on Motion ; 2 Dallas, 382. How and given of the contents ; Id. But the when enforced in Chancery ; 1 excuse for its non-production must be Swanston, 1 14, 535 ; 7 Co7ids. Eng. shown by the party offering the sec- Ch. Rep. 470 ; 5 Paige, 548, and ondary proof ; Id. For the Practice Cases there cited ; 2 do. 3G9 ; 4 of inspecting documents in the hands Johns. Ch. 381. Books may be seal- of the adverse party, See 26 Eng. ed up except so far as relates to the Com. Law Rep. 315, note (a); 4 matters in controversy; 2 Paige, Burr. 2488; 7 Monroe, 234. In 494. 502 PRACTICE. Motions for a New Trial, Order to produce Books and Writings. A— B— , ^ V, > In Assumpsit. C— D— , ) A. B., by Mr. O. his counsel, this day moved the Court for an Or- der upon C. D. to produce, upon the Trial of this cause, the follow- ing Books, &fc., and it appearing to the Court that due notice of this Motion had been given to the said C. D., It is thereupon Order- ed, that the said C. D. do produce, in open Court, on the Trial of this cause, the said Books, ^c, then and there to be inspected, and otherwise used as the Court shall direct. If the Books, &c. are not in the possession of the party, his Affida- vit to that effect may be required. In Case. The said C. D. makes oath and says, that the Books, SfC. specified in the Order in this cause on — last for their production, are not now, and at the time Notice to produce the same was served upon him, were not, and never since have been, any, or all, or either of them, in the possession of the said C. D., or in any manner whatever within his power, or under his control. C. D. Sworn to, &c. If the Books, &.c. are in the possession of the party, and he refuses to produce them, agreeably to the order of the Court, judgment of nonsuit, or by default, may be taken ; See Judgments m Assumpsit, Ante. 176. Motions for a New Trial.* The Supreme Court and Court of Common Pleas are authorized to icrant New Trials for the same reasons for which New Trials have (a) For general Rules regulating 7 £ng. Coin. Law Hep. 293 ; 8 do. Motions, See Ante. 494. The gran- 273 ; 2 Hall, N. Y. 50. Granted ling of New Trials is said to have sometimes for excess of damages ; begun in England about 1652 ; See but never because they are so small ; PRACTICE. 503 Motions for a JNew Trial. usually been granted in Courts of Law; Swanks Stat. 611, ^ 114. In the Supreme Court, after judgment upon a verdict, either party, during the Term, may give notice that he will make an application to the Judges for a New Trial ; which notice is to be entered upon the minutes of the Court, and the reasons for the same filed with the Clerk ; and then, at any time within twenty days, the appli- cation may be made to the Supreme Court, or to any two Judges thereof; Id. ^ 115, 116. But no New Trial can be granted on ac- count of any objection to the form of action, or declaration, or other pleadings ; Ohio Stat. vol. 42, p. 72, *§> 2. Nor can there be a Mo- tion for a New Trial after a Motion in arrest of Judgment ; Swan's Stat. 671, ^ 99. 21 Vin. Mg. 473, 486. Nor in hard cases ; Id. 476. Nor because the Jury, before they agreed, "did eat, drink, fiddle and dance ; " 1 Bibb, 415. On an issue out of Chan- cery, a New Trial will not be granted if justice has been done; 1 Blackf. 165. In an issue out of Chancery, a Court of Law does not grant a New Trial, but the Verdict is returned into Chancery, and that Court may send the issue back ; Wright, 59. A New Trial is granted where the jury find against the charge of the Court ; Id. 539. And in cases of fraud, upon the discovery of new facts ; Id. 548. Will not be granted for exces- sive damages, if the plaintiff will reduce them to what is right by re- mission ; Id. 229, 705. And in a proper case the Court will suggest the reduction ; Id. lb. Will not be granted where the jury have inferred the slanderous sense of uttering words from the manner of speaking them ; Id. 36. Nor if a misstatement of the Judge in giving an item of evi- dence to the jury affected both par- ties alike ; Id. 293. It would require a very strong case to induce a New Trial for tort on account of inade- quacy of damages; fVright, 511. Where the Court divide on a Motion for a New Trial, it fails ; Id. 289. It is not a good ground for a New Trial that the jurors, after agreeing on their verdict, separate without leave of the Court ; Wright v. Burchfield, 3 Ohio Rep. 53. A New Trial is not granted where im- proper testimony, merely cumula- tive, has been admitted, and where the jury must have found the same way, without it ; Mleri's Lessee v. Parish, 3 Ohio Rep. 107. It is no ground for a New Trial, that the Court gave a bad reason for rejecting illegal testimony; Lessee of Ludlow'' s heirs v. Park, 4 Ohio Rep. 5. On a motion for a New Trial, on the ground of newly discovered testi- mony, such testimony should be dis- closed to the Court, and then the Court will exercise their discretion about it ; lb. On motion for a New Trial, it is not enough to show, that the observations of the Judge to the Jury were erroneous; it must appear that they were material, and affected the merits of the case ; Jordan v. James, 5 Ohio Rep. 88. S. P. Ilin- ton V. McNeil, 5 Ohio Rep. 509. But a Judge cannot use language to induce a jury to believe so and so ; as by saying " It is the plainest case he ever saw," &c. ; 2 Z>ona, 221. A New Trial is never granted for a defect in Pleading ; lb. Where jus- tice has been done, a New Trial will not be granted, merely to let in a technical defence ; Bush v. Critch- field, 5 Ohio Rep. 109. A verdict, finding a special issue, on sufficient proof, will not be set aside, though 504 PRACTICE. Motions for a New Trial. Verdict set aside and New Trial granted. A- B-, ) V. S In C- D-, ) Case. This day the Motion heretofore made in this cause for setting aside the Verdict rendered herein on Friday last, and for a New Trial, came on to be heard, and was argued by counsel ; on consid- eration whereof, It is Ordered, that the said Verdict be, and the same is hereby set aside ; and that a New Trial be had between the parties at the next Term of this Court ; And It is further Ordered, that icithin sixty days, the costs of the present Term be paid by the plaintiff', [or, by the defendant ; or, that the costs abide the event of the suit, as the case 7nay be] ; and thereupon, on motion of the plaintiff", [or defendant, as the case may be,] this cause is continued. against Equity ; Bates v. Cooper, 5 Ohio Rep. 115. A New Trial will be granted Avhere the verdict is a- gainst the weight of evidence ; Les- see of MuhlenburgWs heirs v. Flo- rence, 5 Ohio Rep. 245. In Eject- ment, New Trials are granted more readily when the verdict is against the defendant, than when against the plaintitT; lb. If the Court give a wrong opinion, upon an abstract ques- tion of law, not involved in the case, it is no ground for a New Trial ; lieed V. McGrew, 5 Ohio Rep. 37.5. A New Trial is not granted to give a part)) an opportunity to introduce cu- mulative testimony, merely, or to im- peach his adversary's witnesses; lb; S. P. Pcrrhi's Adminislrators v. The Protection Ins. Co., 11 Ohio Rep. 147. The Court in Bank do not receive original motions for a New Trial — They determine only questions reserved in the County ; Gazzam v. Cm. Ins. Co., Ohio Rep. 71. Nor can new points be taken in Bank, on motions reserved ; l{emini!;lon v. Ilarrini^lon, 8 Ohio Rep. 507 ; S. P. Imvis^x. The Bank of Kentucky, 13 Ohio Rep. 132. Where the Court see that justice has been done, a New Trial will not be granted, to let in evidence improperly overruled, when such evidence, if admitted, would not vary the result ; HarVs Lessee v. Johnson, Ohio Rep. 87. In ejectment after verdict for the defendant, a New Trial is hardly ever granted ; the plaintiff may as well begin anew as to pay the costs on a New Trial ; J^csscc of Glover'' s heirs v. Baffin, G Ohio Rep. 255. A New Trial is not granted unless the verdict be palpably against evidence ; TVebb v. The Protection Ins. Co., 6 Ohio Rep. 456 ; S. P. Hoivell V. Cin. Ins. Co. 7 Ohio Rep. 276, Part 1st. If the Court err, in favor of the plaintiff, in their charge to the jury ; such error cannot be re- lied on by the plaintiff for a New Tiial ; Douglass'' Lessee v. Dunlap, 10 Ohio Rep. 162. It seems, that a New Trial would not be granted were a jury to include in their ver- dict the costs for protesting a bill of exchange, where there was no other evidence of the amount of the costs than an indorsement of them on the Notarial Certificate of Protest; Leuds v. The Bunk of Kentucky, 12 Ohio Rep. 182. Nor where a jury, prob- ably by mistake, assessed the amount of damages at $3,355 50, instead of $3,357 50; lb. PRACTICE. 605 Motions in Arrest of Judgment. Motions in Arrest of Judgment.^ A Judgment cannot be arrested because a general Verdict is taken upon good and bad counts in the declaration ; Stvcm^s Stat. 684, 688. Nor for want of Form ; Id. 687 ; Ohio Stat. vol. 42, p. 72. The like, overruled, and final Judgment upon Verdict. This cause came on to be heard this day upon the Motion of the defendant to arrest Judgment upon the Verdict rendered herein on Friday last ; and was argued by counsel ; on consideration whereof, It is Ordered, that said Motion be overruled ; whereupon It is con- sidered that the plaintiff recover of the defendant the said sum of — dollars,. his damages aforesaid in form aforesaid assessed, and also — dollars for his costs in this behalf expended. (a) For general Rules regulating Motions, See Ante. 494. If the Court be equally divided on a Motion in Arrest of Judgment, the Motion fails ; Goodenow v. Tappan, 1 Ohio Rep. 60. If one of several counts in a declaration for slander be bad, Judgment will be arrested ; lb. If an action be brought in Case, where it ought to be Trespass, Judgment will be arrested ; Case v. Mark, 2 Ohio Rep. 169. Where a fact that ought to be alledged in the Declara- tion is supphed in the plea, the Judg- ment after verdict will not be arres- ted ; McFeely v. Vantyle, 2 Ohio Rep. 197. Where one of several counts is defective, and a general verdict for the plaintiff, Judgment will be arrested ; Maxjicld v. Johns- ton, 2 Ohio Rep. 204. The Court will presume a great deal to uphold a verdict ; lb. Where a count for money had and received omits to say, That the money was received for the plaintiff's use, the Court will pre- sume, after verdict, that such use was proved ; and so will not arrest the Judgment ; lb. After verdict, Judg- ment will not be arrested for a depar- ture in pleading, if enough appears on the record to show for whom the Judgment ought to be given ; Jordan V. James, 5 Ohio Rep. 88. In Re- plevin, where several pleas are put in, charging the property to belong to several persons, a general Verdict for the defendant on all the pleas is bad, and Judgment will be arrested ; 7 Ohio Rep. 232, Part 2d. 64 506 PRACTICE. Motion for Judgment against Security for Costs. Motion for Judgment against Security for Costs.'' After final judgment, the defendant, his executors or administrators, or any other person having a right to costs of suit, may, on Motion, and on ten days' notice, enter up judgment in the name of the de- fendant, his executors or administrators, against the Security, for the amount of Costs adjudged against the plaintiff, or so much thereof as may remain unpaid ; Swan's Stat. 652, ^ 22. (a) For general Rules regulating Motions, See Ante. 494. At Com- mon Law no Costs were allowed ; 2 Jnst. 288, 289. Afterwards they were allowed by Statute, which how- ever did not reach Executors or Ad- ministrators. This was remedied by Stat. 3 & 4 Wm. IV., which makes Executors and Administrators pay costs unless an order to the contrary be obtained from a Judge ; 28 £ng. Com. Law Rep. 103. In case of accommodation notes, the maker is liable for the costs, which accrued in the suit by the holder against the in- dorser ; 16 Johns. 70 ; 4 Taunt. 464 ; See 2 Wend. 481 ; 9 Mass. 1 ; 19 Eng. Com. Law Jiep. SSH; 27 do. 547 ; 9 Johns. 131. An infant plaintiff is not liable for Costs, but only his prochein ainie ; and if he refuses to pay them on demand, at- tachment lies; Tidd's Pr. 71, 72. In some cases the Court will not dis- charge an infant if taken on a ca. sa. for Costs ; 13 East, 6, 7 ; See Cases there collected ; and Willes, 190. — Defendant in a Bill of Discovery is not entitled to Costs if he admits the material allegations in the Bill, and also admits he was applied to for a discovery before the Bill was filed, but refused to give it ; 3 Paige, 76. How Costs are adjudged in the Cir- cuit Courts of the U. States, where the recovery is less than 500 dollars ; 8 Cranch, 242 ; 3 Day, 289 ; 3 Pet. 319. It is error to decree costs against one guilty of no defauh ; 2 Marsh. 199. Three witnesses are allowed to the same fact ; 3 Marsh. 377. Case of great costs, and scarce- ly nothing in dispute — reference to case in England, for an ox, valued 5£, and costs l,000i£ ; 6 Monroe, 184. Costs in Equity are at the dis- cretion of the Chancellor ; 3 Litt. 355. Security for Costs in England — How regulated; 1 Blackf. 147. Cannot be required when a party takes steps after he knows of non- residency ; 2 Ves. Sen. 24. In a suit for trespass on real estate, if the damages are laid at more than 100 dollars, the Plaintiff, under the Act of 1816, is entitled to Costs, whatev- er may be the amount recovered ; Norton v. Hart, 1 Ohio Rep. 154. In proceedings under the Occupying Claimant Act, the successful party is entitled to costs ; Martin'' s Case, 1 Ohio Rep. 156 ; S. P. Patterson's Lessee v. Prather, 1 1 Ohio Rep. 35. The Sheriff is entided to poundage only where he actually makes and receives the money, on the execution; Vance v. Bank of Columbus, 2 Ohio Rep. 214. Where an appeal is dis- missed in the Supreme Court, for want of a proper appeal bond, the Court has no jurisdiction to give Costs to either party ; Wilson v. Iloleman, 2 Ohio Rep. 253. Costs cannot be recovered in assault and battery and false imprisonment, if the damages found are under five dollars; Bell V. Bates, 3 Ohio Rep, 380. In a suit before a Justice of the Peace, a PRACTICE. 507 Motion for Judgment against Security for Costs. Form of Notice. In — Common Pleas. To Mr. J. S., Security for Costs in the above Case : This is to give you Notice, that on — next, at 10 o'clock in the morning, or as soon thereafter as Counsel can be heard, the said Court of Common Pleas will be moved to enter up judgment, in the name of the said defendant, [or in the name of M. N., his executor or admin- istrator, as the case may he,] against you, as Security for Costs in the above case, for — dollars, the amount of Costs [or for — dollars residue of Costs] adjudged against the said A. B. at the — Term of said Court, A. D. — , and still remaining due and unpaid. Dated, &c. [Signed by the defendant, his executor or administrator, or other person, having right to the Costs. tender of the amount due and Costs up to that time, is a bar to the recov- ery of further Costs ; Hay v. Ouste- rout, 3 Ohio Rep. 384. Where the Court quash an appeal from a Justice of the Peace, for want of jurisdiction, no judgment for Costs can be render- ed ; Nichol v. Patterson, 4 Ohio Rep. 200. Under the Act of 1829, where a defendant dies after suit brought, and the action survives, the Executor or Administrator is not lia- ble for Costs ; Farrier v. Cairnes, 5 Ohio Rep. 45. Where a Supervisor sues for the penalty for obstructing a road, he is not hable for Costs ; Bit- tie v. Hay, 5 Ohio Rep. 269. The Costs made by each party are to be kept distinct, and those only are to be carried into the judgment which are occasioned by the prevailing party ; Bliss V. Long, 5 Ohio Rep. 276, 337. On a Bill to quiet title, the Statute gives Costs, imperatively, to the complainant if he succeeds ; Douglass V. Scott, 5 Ohio Rep. 194. An indorsement on the writ for Costs, [after suit brought, and without any order of the Court, is no part of the record, and a sci.fa. will not lie on it ; Noble v. Shearer, 6 Ohio Rep. 426. Whether, in such case, the party has any other reme- dy, — Quxre ; lb. If, after suit brought, the plaintiffleaves the State, it seems, he may be ruled to give se- curity for Costs ; lb. A Vendee, on obtaining a decree for specific per- formance, is not entitled to Costs, where he has made no tender of the purchase money ; Dustin v. Neio- comer, 8 Ohio Rep. 49. Nor if he has tendered the money, unless it is brought into Court ; Galloway v. Barr, 12 Ohio Rep. 354. By the Act of 1831, the Costs in proceed- ings for the assignment of Dower are to be paid, one-third by the Petition- er, and two-thirds by the owner of the inheritance ; Bank United States 508 PRACTICE. Motion for Judgment against Security for Costs. Affidavit of Service of Notice. G. H. of, &c., makes oath and says, that on the — day of — A. D. — , he served the ivithin Notice upon the within named J. S. by dehvering to liim in person a true copy thereof at — . G. H. Sworn to, &c. Form of Judgment against Security for Costs. C— D— , ^ V. > On Motion. J_ S— , ) This day came the said C. D. [or other jierson entitled to the Costs] by Mr. O., his Counsel, and showed to the satisfaction of the Court, that the said J. S. was Security for Costs in a certain action, heretofore pending in this Court, wherein A. B. was plaintiff and the said C. D. was defendant, and wherein judgment for costs was ren- dered against the said A. B. at the Term of — last past, and that of said costs the amount of — dollars still remains due and unpaid ; and it further appearing, to the satisfaction of the Court, that the said J. S. has been duly notified of this Motion, Therefore It is considered that the said C. D. recover against the said J. S. the said sum of — dollars, the costs aforesaid, yet due and unpaid, and that he have his execution therefor. v. Dunseth, 10 Ohio Rep. 18. A a Justice of the Peace, if the defend- general and standing order of the ant appeals to the Supreme Court, Court of Common Pleas, directing and the plaintiff recovers more than the clerk to issue execution for Costs, in the Court below, he is entitled to will authorize him, without any spe- judgment for full costs in both Courts; cial order, to issue such execution ; Id. 133. Where a plaintiff appel- Elliott V. Ellery, 11 Ohio Rep. 306. lant does not recover more in the Su- In a suit against a Trustee, in relation preme Court than he did in the Com- to the trust estate, demanding what mon Pleas, judgment must go against he might rightly hesitate to grant, him for Costs; / 44. For refusing or neglecting to pay to the plaintiff, on demand, moneys collected or received for him ; And, For refusing or neglecting to pay to the defendant, on demand, any surplus of moneys made on sale of property : But in this, and in the two last cases, the Amercement is not to exceed the sum withheld, with ten per cent, thereon ; Id. 484, <^ 33. The Sheriff of another County is liable to Amercement in the same manner, on fifteen days notice, and the proceedings against him are to be had in the County where the execution issued ; Id. 657, >§. 50. The Clerk may also be amerced for money in his hands ; Id. 484, "^ 33, 34. For proceedings to make the sureties of a Sheriff parties to an amercement. See Scire Facias, Ante. 368. The Sheriff is also liable to certain other Amercements, as follows : For failing to make due return of any Summons, Capias ad res- pondendum, or other process, unless prevented by inevitable acci- dent ; he may be amerced in any sum not exceeding the plaintiff's debt; Sivan's Stat. 649, § 13. For failing to bring in the body of the defendant, when ruled so to do ; he may be amerced in any sum not exceeding the plaintiff's debt, with costs ; Id. 653, <§. 27 ; And, For neglecting or refusing to execute and return any Subpoena or Attachment for taking Depositions ; he may be amerced in the same manner, and to the same amount, as for neglecting or refusing to ex- ecute and return similar process, in other cases ; Id. 324, <§> 13. in too small a sum, the judgment will to amerce the Sheriff: The party's not be reversed on that account, at remedy, if the return be not true, is the Sheriff's instance, for it is an er- an action against the Sheriff for a ror in his own favor ; lb. Where false return ; Bank of Gallipolis v. a suit is brought for the benefit of an Doniigan, 12 Ohio Rep. 220. A- assignee of a bank, and the Sheriff, mercement is a penal proceeding, under the Acts of 1824 and 1842, and is allowed only in cases provided receives the Bills of the bank, though for by Statute; Jf 'right, 720. A of no value, on Execution; and re- Sheriff will not be amerced for taxing turns that the assignment by the bank too much costs and refusing to re- was not such as tfiose Statutes allow, fund ; The remedy is by re-taxation ; such return is conclusive, on a motion lb. PRACTICE. 511 Motions to Amerce Sheriff. Form of Notice to the Sheriff. To Mr. J. S., late Sheriff of the County of : This is to give you Notice, that on the — day of — next, at 10 o'clock in the morning, or as soon thereafter as counsel can be heard, I shall move the Court of Common Pleas of — County to amerce you, for refusing to execute a certain writ of Execution, [or, for re- fusing to return a certain lurit of Execution, as the case may he,'\ to you directed, which came to your hands to be executed in due form of law, for the sum of — dollars debt, or, damages, [as the case may be,] tested the — day of — A. D. — , and issued, at my instance, from the Clerk's office of the said Court of Common Pleas, against C. D., upon a certain judgment of the same Court in that be- half rendered, at the — Term thereof, A. D. — . Dated, &c. A. B. Affidavit of Service of Notice. G. H. of, &c. makes oath and says, that on the — day of — A. D. — , [two days, at least, before the Motion made,] he served the within Notice upon the within named J. S. by delivering to him in person a true copy thereof, at C — . G. H. Sworn to, &c. Judgment of Amercement. A- B-, 1 J-S-,la'te Sheriff of \ ^" ^^^^^«" ^« ^"^^'•^^- the County of — , J This day appeared in open Court the above named A. B., by Mr. O. his Attorney, and moved the Court here for a judgment of amerce- ment against the said J. S., late Sheriff of the County of — , for refu- sing to execute a certain writ of execution to him directed, which came to his hands to be executed in due form of law, for the sum of — dollars damages, and — dollars costs, tested the — day of — A. D. — , and issued at the instance of the said A. B. from the Clerk's Office of this Court, against C. D., upon a certain judgment of this Court in that behalf rendered, at the — Term thereof, A. D. — ; and 512 PRACTICE. Motion* to Amend. it appearing to the satisfaction of the Court, that due Notice of this Motion was served upon the said J. S. on — last, the Court be- ing now fully advised in the premises, do grant the Motion of the said A. B. in this behalf: Therefore It is considered that the said J. S., late ShcrifTas aforesaid, be and he is hereby amerced in the sum of — dollars, [original judgment and ijiterest] and also the further sum of — dollars, being ten per cent, penalty thereon, for the use of the said A. B. ; and that the said A. B. have his execution therefor, according to the Statute in such case made and provided. [If the Motion be ovemded, say, "and the Court being fully advised in the premises, do overrule the Motion of the said A. B. in this behalf: Therefore It is considered that the said J. S. go hence thereof with- out day, and recover against the said A. B. his costs in this behalf expended, taxed to — dollars."] * Motions to Amend.^ Amendments may be made, upon terms, by either party, before or after demurrer filed, and before error brought ; and the Supreme Court may, in like manner, permit either party to a judgment, or oth- er proceedings, brought before it by writ of Error or Certiorari, to amend formal defects, in the same manner as the Court, where the judgment was originally rendered, might have done, before error brought; Swan's Stat. 687, '^141. The Supreme Court also may allow Amendments to be made in cases of appeal; Id. 684, <§> 129s. By the Act of 1845, (Ohio Stat. vol. 43, p. 114,) Amendments, either inform or substance, may be made, upon terms, before or du- ring the trial, or at any time before judgment; and in cases of Mis- nomer, pleadable in abatement, the declaration may be amended, on Motion of the Defendant, by inserting the right name, on affidavit and notice. (a) If the Motion is to be reviewed (b) For general Rules regulating in the Supreme Court, on Certiorari, Motions, See Ante. 494. ForAmend- the facts, proved or admitted on the ments in Chancery, See Chancery, hearing, must be made part of the Post. A writ cannot be amended record; See iJ/ofio?is, Ante. 494, and without re-scahng; 18 I^ng. Com, Bills of Exceptions, AxMc. 'il'i. For Laiv Ncp. 95. A person improperly Proceedings to make the Sureties of made defendant in an action on con- a Sheriff parties to an Amercement, tract, may be struck out of the decla- See Scire Facias, Ante. 3G8. ration and writ; 7 Mass. 291. Great PRACTICE. 513 Motions to Amend. Motion to amend Judgment ; 2 Ohio Rep. 33. This cause came on to be heard upon the Motion of the plaintiff to amend the verdict and judgment herein, and was argued by counsel ; on consideration whereof, It is ordered that the plaintiff be at lib- erty to amend the said judgment by striking out the name of John McConnell, so as to make the same conform to the pleadings and issue, and to the manifest intent and operation of the verdict. latitude is allowed in Amendments in order to reach the justice of the case ; 1 Dana, 403. If a Clerk, &c. make an Amendment, in order to conform to the law, the Court will not alter it, but may punish the Clerk; 2 Mod. 317, note (a.) A Sci. Fa. as a writ cannot be amend- ed, but it may be as a declaration ; Wright, 69. The Amendment is to be made by the Court in which the case is depending ; Id. G9. And be- fore error brought ; /(/. 355. A- mendments may be allowed after the evidence is heard and the opinion of the Court intimated ; Id. 302, 303, 410, 690. And the Court may sug- gest an Amendment sua sponte ; Id. 323. In cases of appeal. Amend- ments are allowed on payment of costs; Id. 485. If the Clerk, by mistake, omit the name of a juror on the panel, it may be amended at any time during the Term ; Id. 503. — Amendments by Interlineation, &c. 14 Pet. 147. A final judgment in the Common Pleas cannot be amend- ed at a subsequent Term ; Botkin v. Commissioners oj Pickaivay County, 1 Ohio Rep. 375 ; S. P. Critchfield V. Porter, 3 Ohio Rep. 518. But a Court of Record may alter or set aside a judgment at any time during the Term in which it is rendered ; Mc- Vickar v. Ludlow'' s Heirs, 2 Ohio Rep. 246. Where a process is issu- ed against two and served upon one of them, and a verdict and judgment are taken against both, the Court, at a subsequent Term, will allow the judgment to be amended, by striking out the name of the defendant not served with process — It is a mere clerical mistake ; Hammer v. Mc- Connel, 2 Ohio Rep. 31. When the Clerk receives the verdict of a Jury, it is always upon the terms, that the Court may correct matters of form ; lb. In a suit against a Township, if the Trustees be named in the record, their names may be struck out, at any time, as surplusage ; Harding V. Trustees of New Haven Tp. 3 Ohio Rep. 227. A general judg- ment for the defendant cannot be amended, at a subsequent Term, so as to make it a judgment for a defect in the declaration ; Green v. Dodge, 3 Ohio Rep. 486. A Sheriff, on leave of the Court, may amend his return on final process ; nor is there any time fixed by law within which such Amendments are to be made — It all rests in the sound discretion of the Court ; Fowhle v. Rayberg, 4 Ohio Rep. 45. Before the Act of 1835, Amendments were not allowed after writ of error sued out ; Hanly V. Levin, 5 Ohio Rep. 227. Where, in entering a judgment in the Court in Bank, the Clerk, by mistake, re- versed the name of the parties, ma- king the plaintiff, defendant, and the defendant, plaintiff, the Court, at a 65 514 PRACTICE. Motion to Amend in case of Misnomer. Motion to amend in Case of Misnomer, under the Act of 1845. Form of Affidavit. John Nokes, ads. Joseph Styles, by the ^ Common Pleas. name of [ John Styles. J The above named defendant, John Nokes, against whom the said Jose/»/i Styles hath sued out his writ of Summons, and declared, by the name of John Styles, makes oath and says, that the said Joseph Styles hath always, hitherto, been called and known by the Christian name of Joseph, and that he is not now, and never hath been, called or known by the name of John, as by the said writ and declaration is supposed. Sworn to, &c. subsequent Term, will order the rec- ord to be set to rights ; Torbet v. Coffin, 6 Ohio Rep. 274. The bill of particulars certified up, on appeal from a Justice of the Peace, it seems, may, under circumstances, be amen- ded in the Common Pleas ; Nichols V. Foidson, 6 Ohio Rep. 305. Crim- inal cases are not within the Statute of Amendments ; They are regulated by the Common Law ; Voting v. The State of Ohio, G Ohio Rep. 435. The mistakes of a Clerk in transcri- bing Minutes from ihe Judge's dock- et may be corrected — Thus a record, not showing how a nonsuit came to take place, maybe so amended, from the Judge's minutes, as to show the nonsuit was ordered by the Court ; Bradley v. Snealh, G Ohio Rep. 490. Where a defendant in ejectment takes the objection, for the first time, in the Court in Bank, that the plain- tiff cannot recover because his demise is laid jointly in the names of three, and his proof shows title in one only, the case will be remanded to the cir- cuit with leave to amend on payment of costs ; Buckley'' s Lessee v. Os- burn, 8 Ohio Rep. ISO. A verdict does not come within any of the stat- utes allowing Amendments either before or after error brought ; Clark V. Irvin, 9 Ohio Rep. 131. The Supreme Court, in cases of appeal, exercise a discretion in allowing the parties to amend their pleadings, but they are to be put under such equita- ble rules as the Court may conceive to be necessary to prevent delay; Sheets v. Baldwin, 12 Ohio Rep. 120. PRACTICE. 515 Motion to amend in case of Misnomer. Form of Motion. John Nokes, "^ ads. I Joseph Styles, by the V In Assumpsit, name of Joh7i Styles. This day came the above named John Nokes, and moved the Court for leave to amend the declaration in this case, by inserting the Chris- tian name of Joseph, in the place of John Styles ; and thereupon, and on reading the Affidavit of — in that behalf. It is ordered, that Notice be given to the said Joseph Styles, according to the Statute in such case made and provided, to appear on — and show cause, if any he has, why this Motion shall not be granted. Form of Notice. The State of Ohio, To the Sheriff of — County, Greeting : Whereas in a certain i)\e^ of Assumpsit, now pending in our Court of Common Pleas of — , wherein Joseph Styles, by the name of John Styles, is plaintiff, and John Nokes is defendant ; and wherein the said Joseph Styles has declared in the name of John, instead of his true name Joseph, as appears to us by the affidavit of — , you are therefore hereby commanded to make known to the said Joseph Styles, that he be before the Judges of the said Court of — on — to show cause, if any he has, why his said true name of Joseph shall not be inserted in the said declaration, in the place of the said name of John, according to the Statute in such case made and provided. Witness, &c. [as in other Process.] Form of Order. John Nokes, ^ ads. Joseph Styles, by the name of John Styles. ! In Assumpsit. — Motion to amend the De- ^ claration for Misnomer. This day came the parties, and it appearing to the satisfaction of the Court, that due Notice of this Motion has been given to the plain- 516 PRACTICE. Motion to change Venue. tiff, and that the true name of the plaintiff is Joseph Styles, instead of John Styles, It is therefore ordered that the declaration be amended accordingly ; and that the costs of this application, taxed to — dollars, be paid by the said plaintiff in sixty days. Motion to change Venue.* In all cases where it is made to appear to the Court that a fair and impartial trial cannot be iiad in the County, the Court may direct the Venue to be changed to some adjoining County ; Swan's Stat. 684, <§. 134. And where there is not a sufficient number of disinterested Judges in the Court of Common Pleas to sit upon the trial, the Court, on application of either party, will order the fact to be entered of record, and direct the trial to be had in some adjoining County ; Ohio Stat. vol. 43, page 81, >§> 7. And, in such cases, Subpoinas for witnesses may be issued in either County ; Ohio Stat. vol. 44, p. 15. Order for change of Venue. This cause came on to be heard upon an application of the defend- ant to change the Venue from this county, where the same is de- pending, to some adjoining county ; and it appearing to the Court, that there cannot be a fair and impartial trial of the issue joined be- tween the parties, in tiiis county : It is therefore ordered, that the Venue in this suit be changed from this county to the adjoining County of — , and that the Clerk of this Court transmit to the Clerk of the Court of Common Pleas of the said County of — the original writ, pleadings, depositions and other papers filed in this cause, — days before the next Term of said Court, in said County of — . The like, for want of disinterested Judges. On application of the plaintiff, [or defendant, as the case may be,] and it appearing that there is not a sufficient number of disinterested (a) For the old Common Law as Venue : it rests in the discretion of to Venue, See 21 Vin. Mg. 79. — the Court, and depends on the cir- The Supreme Court, it seems, while cumstanccs of each case ; The Bank sitting in one county, receives appli- of Cleveland v. Ward, 1 1 Ohio Rep. cations to change the Venue, in an- 128. An Affidavit of the party, that other county; S'eely v. Blair, 6 Ohio a. fair and impartial trial cannot be Rep. 448. There is no settled rule had in the county, as he verily be- of Practice relative to changing the lieves, is not enough ; Jb. PRACTICE. 517 Motion to confirm SherifT's Sale. Judges of this Court to sit upon the trial of this cause, It is there- fore ORDERED, that the fact of such want of disinterestedness be en- tered upon the Minutes of the Court, and that an authenticated copy of said Minutes, together with the original files in this case, be cer- tified, forthwith, for furthur proceedings, to the Court of Common Pleas of the adjoining County of — , according to the Statute in such case made and provided. Form of Certificate. To the Honorable the Judges of the Court of Common Pleas of the County of — : In pursuance of the Statute in such case made and provided, These presents certify, that the following is a true copy of the Min- utes of the Proceedings of the Court of Common Pleas of the County of — , in a certain cause therein lately pending, wherein A. B. was plaintiff" and C. D. was defendant, whereof a trial could not be had in that county for want of disinterested Judges, to wit, [Here set out a Transcript of the Proceedings from the beginning] ; and that the papers and documents hereto annexed, and marked, respectively, A, B, &c., are all of the original files belonging to said suit. Witness, my Signature and Seal of Office, at C — , this — day of — A. D. — . F. C. Clerk. Motion to confirm Sheriff's Sale.* On Execution. The Court this day, on Motion of — , having examined the pro- ceedings of the Sheriff", and the sale by him made upon the execution (a) Under the Act of 1822, [^still had to be acknowledged in open in force, 1848,] a Sheriff's Deed is Court ; Roads v. Symmes, 1 Ohio not valid, unless the sale be approved Rep. 2S1 ; Wright, 223. "Seventy by the Court and a Deed ordered ; acres in the south-west corner," of a Curtis' Lessee v. Norton, 1 Ohio certain section, is a good description Rep. 278 ; S. P. Stall's Lessee v. in a Sheriff's deed, and the land is Macalester, 9 Ohio Rep. 19. Under to lie in the corner, in a square form ; the Law of 1795, a Sheriff's Deed Walsh's Lessee v. Ringer, 2 Ohio 518 PRACTICE. Motion to confirm Sheriff's Sale. issued in this cause, and being satisfied that said sale has in all re- spects been made in conformity to the provisions of the Statute in such case made and provided, do order the Clerk to make an Entry on the Journal, that the Court are satisfied of the legality of the sale ; and that he also enter an Order on the Sherift' to make to the pur- chaser a deed for the lands and tenements so sold ; All which is en- tered accordingly. Rep. 327. On a motion to the Court for an order to the Sherift" to make a deed, the Court look only to the Ex- ecution on which the sale was made, and the proceedings under it : irreg- ularities previous to the issuing of the Execution can only be taken advan- tage of by motion to set aside the proceedings ; Buckingham v. Gran. Ako:. Sodet%j, 2 Ohio Rep. 360. Where a levy was made, " on one hundred acres of land, in section four, town seven, range four," and the Sheriff's deed purported to con- vey to the purchaser all the right of the defendant, in a particular tract, Avithin the section ; parol evidence is admissible to show that the levy was actually made on the tract specified in the deed ; Mattheiv''s Lessee v. Thompson, 3 Ohio Rep. 272 ; S. P. Douglass V. McCoy, 5 Ohio Rep. 522. Where a Sheriff' makes a sale, and goes out of office, without ma- king a conveyance, the Court will direct the Sheriff, for the time being, to make a deed ; Foivhle v. Hay berg, 4 Ohio Rep. 45. A Deed, executed by a Deputy Sheriff, for lands sold on execution by himself, or by the Sheriff, is valid ; Haines^ Lessee v. Lindsey, 4 Ohio Rep. 88; S. P. Anderson'' s L^essee v. Brown, 9 Ohio Rep. 151. A Sheriff's deed reciting correctly the judgment, execution, levy and sale, is prima facie evidence that the land it purports to convey was the land levied upon and sold ; but parol evidence may be given to show, that the land levied on and sold, is not in fact the land covered by the deed ; I^ongworth's Lessee v. Ba7ik U. Stales, 6 Ohio Rep. 536. The Sheriff, it seems, may make a deed to an assignee of the original purchaser; Ewing^s Lessee v. Hig- by, 7 Ohio Rep. 198, Part 1st. S. P. 1 Dana, 212. A deed executed by a Sheriff, while in office, but ac- knowledged after his term has ex- pired, is good, by relation, from the time of its execution ; Fosler''s Les- see V. Dugan, 8 Ohio Rep. 87. A Sheriff's deed need not recite all the executions that may have issued be- fore the one on which the sale was- made : All that is necessary is. To show, that the Sheriff acted under the execution ; Armstrong's Lessee V. McCoy, 8 Ohio Rep. 128 ; S. P. Perkins' Lessee v. Dibble, 10 Ohio Rep. 433 ; 1 3Iarsh. 218. A Sher- iff's deed, upon partition, is good, if acknowledged in open Court ; and such acknowledgment may be certi- fied by the Clerk on the deed itself, without any entry on the minutes ; Goudy's Lessee v. Shank, 8 Ohio Rep. 415. A Sheriff's Deed made • in the name of a Deputy is invahd ; Anderson' s I^essee v. Brown, 9 Ohio Rep. 151. The acknowledgment of a Deed, by a Deputy, after the death of the Sheriff, is void ; lb. A Sher- iff's deed is void for uncertainty that has no other description of the prem- ises but this: "One thousand and fifty acres of land, part of a tract of 1731 acres, or thereabouts, situated on the East branch of the Little Mi- ami River, being part of a tract loca- ted in the name of Richard Throck- morton, by Joseph Lewis ;" Throck- morton's Lessee v. Moore, 10 Ohio PRACTICE. 519 Redemption from Tax Sales. Redemption from Tax Sales. '^ All lands sold for Taxes due to the State, or any City or incorpo- rated Town, may be redeemed, within two years after the sale ; and in case of infancy, coverture, insanity, or persons in captivity, within two years after the removal of such disability ; Sloan's Stat. 924, 9-27, <§> 69, 79. Form of Petition. To the Honorable the Judges of the Court of Common Pleas within and for the County of — .^ Your petitioners, A. B., C. D. and E. F.'= respectfully represent, that J. S., late of, &c., departed this life, intestate, on or about the Rep. 42. A Sheriff's Deed relates back so as to pass all the title the judgment debtor had at the time of the levy; BoycVs Lessee v. Long- worth, 1 1 Ohio Rep. 235. A Coro- ner's Deed made Avhile there is a Sheriff, it seems, is invalid ; lb. Where a Coroner makes a sale, and goes out of office before making a deed, and then a new Sheriff and a new Coroner comes into office, the new Sheriff, it seems, is so far the successor of the old Coroner that he ought to make the deed to the pur- chaser ; /(/. The right to the land vests in the purchaser from the time of sale, subject to the order of con- firmation ; and the reversal of the judgment between the sale and con- firmation does not affect the title ; Wright, 520. If the purchaser pre- sents the Receipt of the plaintiff, it answers the same as the money ; Id. 520. (a) No appeal lies from the Com- mon Pleas to the Supreme Court, on an application to redeem lands sold for Taxes : A Certiorari is the proper remedy ; Street v. Francis, 3 Ohio Rep. 277 ; S. P. Master son v. Beas- ly, 3 Ohio Rep. 301. The authority of a person claiming to act as agent for applicants to redeem land sold for Taxes, is not a matter to be ques- tioned by the purchaser, on Certio- rari, after the recognition of such power by the Common Pleas ; lb. The vaUdity of the title of one who applies to redeem land sold for Taxes, cannot be drawn in question, on the hearing of the appHcation ; it is e- nough if the party shows a right to redeem ; lb. But the applicant must show that he, or those for whom he professes to act, are in some way connected with the title to the prem- ises, as by deed, descent, contract or possession under claim of title, either of which is sufficient ; lb. So, an equitable title, or naked possession, gives a right to redeern ; lb. (b) The Application is to be made in the county where the lands he ; or, if the lands be divided by a County fine, then in the County where the sale was had ; Swan's Stat. 924, § 2. (c) Where several persons are en- titled to redeem, and one or more will 520 PRACTICE. Redemplion from Tax Sales. — day of — A. D. — , seized in fee simple, of, &c., [or in posses- sioji of, or, holding by title bond, ^-c, showing some connexion tvith the title,] a certain tract or parcel of land, situate in the said County of — , and described as follows, to wit, [describing the jyremises by metes and bounds] ; And your Petitioners further rep- resent that by reason of certain delinquent taxes due thereon to the State of Ohio, the said premises, on the — day of — A. D. — were sold at public auction, by the Auditor of the County of — , and O. P., of, &.C., became the purchaser of the same at said sale, for the sum of — dollars. And your petitioners further represent, that they are the heirs at law of the said J. S., deceased ; and desiring to re- deem said lands from the said sale for taxes, your Petitioners, on the — day of — A. D. — , caused to be published in a certain newspa- per called — , printed in the said County of — , and in general cir- culation therein, a Notice describing said premises in the same man- ner as they were described on the tax duplicate, at the time of the said sale thereof; setting forth the quantity in the original tract, the quantity sold, the name in which the same stood charged with taxes, at the time of said sale, and the name of the said O. P. as purchaser thereof ; and stating therein that application would be made by your Petitioners to this Court, at the then next term thereof, to redeem said lands from the aforesaid sale for taxes, according to the Statute in such case made and provided ; which notice was inserted in said newspaper six weeks successively, prior to the present Term of this Court. And your petitioners further represent, that on the — day of — A. D. — , the time of publishing the aforesaid notice, your Pe- titioners tendered to the said O. P. [his agent or attorney,] the sum of — dollars, being an amount of money equal to that for which said lands were sold as aforesaid^ and all taxes subsequently paid thereon by the said O. P., or those claiming under him, together with interest, and fifty per centum on the whole amount so paid, including costs ; which money so tendered as aforesaid the said O. P. [his agent or attorney,] then and there refused to accept *. Your Petitioners therefore pray an order of this Court in their behalf, as well for the not, or cannot, join in the application, (a) The applicant may deposit the the others may, notwithstanding-, re- money with the Clerk, or make a deem their proportion ; Sloan's Slut, tender of it, at his option. If a ten- 925, § 74. It seems that the Supreme der he made, the costs of the appli- Court, on the Circuit, have held, as cation abide the event, as in other in Error, that if one of several par- cases. If the money be deposited ties be within the two years' saving with the Clerk, the applicant pays clause of the Statute, the rights of all costs ; Swan's Stat. 925, 926, all are saved ; Hunter and Stanbery, § 73, 78. Where the money is de- arguendo, 10 Ohio Jiep. 12. posited with the Clerk, the Petition PRACTICE. 521 Redemption from Tax Sales. redemption of said lands as also for the restitution of the same ; ac- cording to the Statute in such case made and provided ; And they shall ever pray, &c. By T. S., their AtVy. Form of Notice. To all whom it may concern : Notice is hereby given, that at the next Term of the Court of Com- mon Pleas of the County of — , and State of Ohio, A. B. &,c. will apply to the said Court for the redemption of a certain tractor parcel of land sold for taxes, on the — day of — A. D. — , by the Auditor of — County, to O. P. for the sum of — dollars ; which tract or par- cel of land, at the time of the said sale thereof, was described as fol- lows, on the tax duplicate, to wit, [stating the quantity in the ori- ginal tract, the quantity sold, the name in ivhich the same stood charged with taxes at the time of the sale, and the name of the per- son to whom sold.] Dated, &c. Affidavit of Publication. T. C. being duly sworn, says, that a copy of the above notice was inserted for six weeks successively, beginning on — and ending on — in the — a newspaper printed in the County of — and of general circulation therein. Sworn to, &c. The Statute points out no specific mode of defence, but it is cus- tomary to defend by Answer, &c., substantially as in Chancery. — Defence is made by the Purchaser at tax sale, or by subsequent pur- chasers from him. sets forth such deposit instead of a of money equal to that for which tender, thus : And your Petitioners said lands were sold as aforesaid, and further represent, that on the — day all taxes subsequently paid thereon of — A. D. — , the time of pubhsh- by the said O. P., or those claiming ing the aforesaid notice, your Peti- under him, together with interest, tioners deposited witli the Clerk of and fifty per centum penalty on the this Court, according to the Statute whole amount so paid, including in such case made and provided, the costs, sum of — dollars, being an amount 66 533 PRACTICE. Redemption from Tax Sales. Order for Redemption 07i Hearing. A— B— , et al. ^ V. > Application to redeem from Tax Sale. O— P— , ) This day came the parties, by tlieir Attorneys, and this Application coming on to be heard upon the Petition, answers, testimony and exhibits, and the premises being seen and fully understood, the Court do find the allegations in the Petition to be true, and that the Peti- tioners have good right to redeem the lands in the Petition described, from the said sale for taxes, and to have restitution of the same : Therefore, It is ordered that the said O. P. surrender the said lands in the petition described to the said Petitioners, or to such person or persons as they shall direct, free and clear of any and all claim or in- cumbrance whatsoever, by reason of the said sale for taxes, in the said Petition mentioned ; and that said Petitioners have restitution of the same, according to the Statute in such case made and provided : And It is further ordered, that the said O. P. pay the costs of this application, taxed to — dollars, in sixty days, or that execution issue therefor. If lasting and valuable improvements have been made by the pur- chaser, or by any person claiming under him, the applicants for re- demption are required to pay the value thereof before restitution is made. The valuation of the improvements is to be made in accord- ance with the provisions of the Occupying Claimant Law ; but no improvements made within two years after the sale are to be taken into the account ; Sivan's Stat. 926, '§> 75. In such cases, instead of an order of restitution, the following entry may be substituted af- ter the order of redemption : — " And upon the application of O. P., and it appearing to the satisfaction of the Court, that lasting and val- uable improvements have been made on said premises by the said O. P., the purchaser, [or by the person claiming under him,] since the expi- ration of two years after the said sale thereof for taxes. It is ordered that a valuation of the same be made, according to the Statute in such case made and provided : And It is further ordered, that upon the value of said improvements, so to be assessed as aforesaid, being paid, or tendered to the said — by the Petitioners, then the said Pe- titioners have restitution of the possession of the premises, pursuant to the Statute in such case made and provided ; and, in the mean- time, let Restitution of possession be stayed." PRACTICE. 523 Redemption from Tax Sales. Order to Sheriff for Valuation of Improvements. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas lately in our Court of Common Pleas, within and for the County of — A. B. &c., by an order of the same Court, redeemed from a certain sale for taxes, a tract or parcel of land, situate in said County of — and bounded and described as follows, to wit, [describe the land as in the Petition:] And whereas, upon the making of the said order of redemption, our said Court of Common Pleas, on the application of O. P. in that behalf, granted to the said O. P. the ben- efit of the Statute for the relief of occupying claimants : Therefore we command you, that without delay, by the oaths of E. F. [naming the jurors,] and upon actual view of the premises, you cause to be made a just and true assessment of the value of all lasting and valua- ble improvements made upon the tract or parcel of land aforesaid, by the said O. P., since the — day of — A. D. — , [tivo years from the day of sale] ; and also that, in like manner, you cause to be made a just and true assessment of the damages, if any, which the said tract or parcel of land may have sustained by waste, together with the net annual value of the rents and profits which the said O. P. may have received from the same, from and after the — day of — A. D. — [day of sale], deducting the amount of such rents and profits from the estimated value of the lasting and valuable improvements afore- said ; And of this writ make legal service and due return. Witness, F. C, Clerk of our said Court of Common Pleas at — , this — day of — , A. D. — . F. C. Clerk. For the Proceedings and Report of the Commissioners, See Occu- pying Claimant, Ante. 347. Writ or Restitution. The State of Ohio, To the Sheriff of — County, Greeting : [Seal.] Whereas on the — day of — A. D. — , A. B. &c. in our Court of Common Pleas, within and for the County of — , in a certain Petition 534 CLERK'S ENTRIES. Clerk's Entries. in that behalf, obtained against O. P. an order of the same Court, as well for the redemption, as also for the restitution of the possession of a certain tract or parcel of land, before that time sold for taxes, situate in the said County of — , and bounded and described as fol- lows, to wit, [describing the lands as in the Petition], as appears to us of record : Therefore we command you that, without delay, you cause the said A. B. &-c. to have full possession of said tenements, with the appurtenances ; And how you shall execute this writ make appear to the Judges of our said Court of Common Pleas, at their next Term ; And have you then there this writ. Witness, &c. CLERK'S ENTRIES L At the Commencement of a Term. At a Court of Common Pleas, in the — Judicial Circuit of the State of Ohio, began and held at the City of — , within and for the County of — , on the — day of — , in the year of our Lord one thousand eight hundred and — , and of the State of Ohio the — : Present, The Honorable A. B., President Judge. C. D., ^ E. F., > Associate Judges. G.H., ) L. S., Clerk. W. D., Sheriff. 2. Grand Jury Sworn. The Jurors of the Grand Jury being called, came, to wit, A. B. &.C., good and lawful men : The Court appoint the said A. B., Fore- (a) Orders, Judgments, Decrees, Forms of Final Judgments, Orders &c. are entered upon the Journal, at for New Trials, and various other length, and with the same technical Special Orders, will be found under precision as is required in the com- the titles of the different Actions, and plete record ; 1 Ohio Hep. 268 ; See other appropriate Heads ; See Index Complete Record in Assumpsit, An- — Title, Clerk's Entries. te. 183. CLERK'S ENTRIES. 525 Clerks's Entries. man ; and the said Jurors, being duly empannelled, sworn and charg- ed, retired to heir Room, to deliberate ; attended by a sworn con- stable. 3. The like, with Talesmen added. The Jurors of the Grand Jury being called, some of them came, to wit, A. B. &c. ; and because the residue of said Jurors of that Jury do not appear, others from among the bystanders are, by the Sherift'of said county, at the command of the Court, elected anew, to wit, C. D. &c., good and lawful men, whose names are annexed to the panel, according to the form of the Statute in such case made and provided. The Court appoint the said A. B. Foreman, and the said Jurors being duly empanelled, sworn and charged, retired to their Room, to delib- erate ; attended by a sworn constable. 4. Indictments pkesented by Grand Jury. This day the Grand Jury appeared at the Bar of the Court and presented their Bill of Indictment against A. B. for — . Indorsed, " A true Bill. C. D., Foreman :" Also their other Bill of Indictment, against E. F. for — . Indorsed, &c. And not having finished the business before them, they retired again to deliberate, [or, having finished the business before them, they were discharged from fur- ther attendance as Grand Jurors at the present term of this Court.^ 5. Proof of a Will. In the matter of A. B's Will. The last Will and Testament of A. B., late of, &c., in said County, deceased, was this day produced in Court by Mr. O., attorney for the Executor in said Will named, and J. N. and J. S. the subscribing witnesses to said Will appeared, and in open Court, on oath, testified to the due execution of said Will ; which testimony was reduced to writing and by them respectively subscribed and filed with said Will ;* (a) The testimony may be in the D. — , depose and say, that we were Form following : present at the execution of the last will and testament of — , hereunto The State of Ohio, — County, ss. annexed ; that we saw the said tes- tator subscribe said will, and heard We, — and — , being duly sworn him publish and declare the same to in open Court this — day of — A. be his last will and testament, and 526 CLERK'S ENTRIES. Clerk's Entries. and it appearing to the Court, by said testimony, that said Will was duly attested and executed, and that the said Testator, at the time of executing the same, was of full age and of sound mind and memory, and not under any restraint. It is Ordered by the Court that said Will and testimony be recorded.* Whereupon C. S., the executor in said Will named, appeared in Court and signified his acceptance of the trust of executing said Will, It is therefore further Or- dered, that letters testamentary be issued to him on his giving bonds in the sum of — dollars,*" with — and — as sureties, conditioned according to law. The Court appoint T. S and A. S. appraisers of the personal estate of the said testator. that the said testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint ; and that we signed the same as witnesses at his request, and in his presence, and in the presence of each other. (Signed.) (b) By the Act of 1846, the testa- tor may direct that his executor shall not give bond, or have his personal estate appraised ; Ohio Stat. vol. 45, ]j. 25. When a will may be contes- ted in Chancery, See Chancery, Title, Will. Form of Letters Testamentary. The State of Ohio, — County, ss. The Honorable J. S., President Judge of the — Judicial Circuit of the Court of Common Pleas, in the State of Ohio, and A. B., C. D. and E. F., Esquires, his Associates,Judges of the same Court, within and for the County of — , do by these presents make known, that at a Term of said Court, begun and held at the Court House in the Town of — , within and for said County of — , on the — day of — A. D. one thousand eight hun- dred and forty — , the last will and testament of J. N., late of, &c., in said County, deceased, (a copy of which is hereunto annexed,) was duly proved and allowed by said Court, the said deceased having, whilst living, and at the time of his death, goods, chattels, rights, cre- dits and estate, within said County, by reason whereof the proving and allowing the said will, and the gran- ting administration of all and singu- lar the said goods, chattels, rights, credits and estate, and also the audit- ing, allowing, and final discharging the account thereof, dolli appertain to us ; and that the administration of all and singular the goods, chattels, rights, credits and estate of said de- ceased, and any way concerning his Avill, was granted to T. W., the ex- ecutor named in said will, having accepted said trust, and executed his bond to our acceptance, well and faithfully in the manner prescribed by law, to make and return to said Court, on oath, within three months from the date of these letters testa- mentary, a true inventory of all the moneys, goods, chattels, rights and credits of the testator, Avhich are by law to be administered, and which shall have come to his possession or knowledge, and, if required by said Court, an inventory of the real estate of the deceased ; also to administer according to law, and to the will of the testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, that may be sold for the payment of his debts or CLERK'S ENTRIES. 527 Clerk's Entries. The like, and Administration granted with the Will ANNEXED. In the matter of A. B's Will. The last Will and Testament of A. B., late of, &c., in said County, was this day produced in Court by Mr. O., Attorney for — , and J. N. and J. S., the subscribing witnesses to said Will, appeared, &c., [proceed as in the last Precedent to the (*) and then say,] And thereupon C. S., the executor in said Will named, signifying his re- fusal to accept the trust of executing said Will, [or there being no executor named in said Will, as the case may be,] and the Certificate of C. B., widow of the said A. B., being produced to the Court, by which it appears that she declines taking Letters of Administration on the estate of her deceased husband, and requests the appointment of D. C, It is THEREFORE FURTHER Ordered, that the said D. C. be appointed administrator, with the Will annexed, on the estate of the said A. B,, and that T. S. and A. S. appraise the personal pro- perty of the said testator ; And It is further Ordered, that the said D. C. give bonds in the sum of — dollars, with C, D. and E. F. as sureties, conditioned according to law ; whereupon the said D. E, appeared in open Court and accepted said appointment, and gave bonds accordingly. 6. The like, on Commission.'^ In the matter of A. C.'s Will. The Commission heretofore issued from this Court, with the said Will of the said A. C. annexed, to take the deposition of J. N., one legacies, which shall at any time come to the possession of the said executor, or to the possession of any other person for him ; and also to render, upon oath, a just and true account of his administration, within eighteen months from the date of these letters testamentary, and at any other times, when required by said Court, or the law. In testimony whereof, we have caused the Seal of our Court to be hereunto affixed. Witness, — Clerk thereof, at — , in said County, this — day of — A. D. one thousand eight hundred and forty — . — , Clej'k. (a) By the Act of 1840, the Court may send a Commission, with the Will annexed, to any suitable person or persons, to take the deposition of any Avitness to a Will, who resides out of the jurisdiction of the Court, or who resides within it, and is in- firm and unable to attend Court; and 528 CLERK'S ENTRIES. Clerk's Entries. of the subscribing witnesses thereto, was this day produced in Court, and filed by Mr. O., attorney for the executor in said Will named, and it appearing to the satisfaction of the Court, as well by the said deposition of the said J. N. as also by the testimony of J. S., another subscribing witness to the said Will, taken in opeu Court and reduced to writing, and signed by the said J. S., and also filed with the said AVill, that the said Will was duly attested and executed, and that the said testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint, It is ord- ered, tLc. [Conclude as in the last Precedent.] the deposition so taken, certified and returned, is as valid as if taken in open Court ; Swari's Stat. 994, § 15. Order for a Commission. In the matter of A. C.'s Will. The last will and testament of A. B., late of — in said county, deceas- ed, was this day produced ia Court by Mr. O., Attorney for the Executor in said Will named, and it appearing to the satisfaction of the Court, that J. N., one of the subscribing witness- es to said Will, resides out of the ju- risdiction of this Court, at, &c., [or is iii/irm and unable to attend Court, as the case may be,~\ It is ordered that a Commission issue, with the said Will annexed, to take the depo- sition of the said J. N. touching the due execution of said Will, to be di- rected to J. J., P. W. and J, W., any two of whom may execute the same, according to the Statute in such case made and provided. [_For the mode of giving Notice, when necessary, See Depositions, Ante. 473.] Form of the Commission. [Seal.] The State of Ohio, To J. J., P. W. and J. W. of, &c. Greeting : Know ye that we, in confidence of your prudence and fidelity, have ap- pointed you, and by these presents do give to you, or any two of you, full power and authority to examine and take the deposition of J. N., one of the subscribing witnesses to the Will of A. C, hereto annexed, late of, &c., and therefore we command you, or any two of you, that at certain days and places to be appointed by you, or any two of you, [directing Notice, if the order require it,'] you cause the said J. N. to be brought before you, or any two of you, and then and there examine him on his corporal oath, or affirmation, first taken before you, or any two of you, touching the due execution of the said Will of the said A. C, and that you reduce such examination to writing, and return the same, together with this writ and the said Will of the said A. C. there- to annexed, closed up under your seals, or the seals of any two of you, into our said Court of Common Pleas, with all convenient speed. Witness, T. C. Clerk of our said Court of Common Pleas, at C — , this — day of — A. D. — . T. C. Clerk. For Directions in executing the Commission, See Depositions, An- te. 481. CLERK'S ENTRIES, 529 Clerk's Entries. 7. Will from another State ordered to be Recorded. An authenticated copy of the last Will and Testament of A. B., &,c. late of, &c., in the County of, &c., and State of, &-c., was this day pro- duced in Court by, 6cc., and it appearing to the satisfaction of the Court that the said Will has been proved in said State of, &c., according to the laws of that State, and that said Will has relation to pro- perty witiiin the said County of — : Therefore, on motion, It is ord- ered by the Court that the said authenticated copy thereof be recor- ded in the Records of Wills for said County of — . 8. Widow appointed Administratrix/ In the matter of A. B.'s Estate. On Motion, the Court appoint C. B., widow of A. B., late of, &c. in said county, deceased. Administratrix on the estate of her deceased husband, and J. S. and J. N. Appraisers. Ordered that said Administratrix give bonds in the sum of — dol- lars, with C. D. and E. F. as sureties, conditioned according to law. (a) Form of Letters of Administra- tion. The State of Ohio, — County, ss. The Honorable J. S., President Jadge of the — Judicial Circuit of the Court of Common Pleas of the State of Ohio, and J. N., O. P. and R. S., Esquires, his Associates, Judg- es of the same Court, within and for the County of — , holding said Court at the Court House, in said county, the — day of — A. D. — . To E. F., Greeting : Whereas, A. B. of, &c. in said county, (as is alleged,) lately died in- testate, having whilst living, and at the time of his death, goods, chattels, rights, credits and estate within said county of — , by reason whereof the 67 granting administration of all and sin- gular the said goods, chattels, rights, credits and estate, and also the audit- ing,alIo\vingandfinaldischargingthe account thereof, doth appertain to us ; and we being desirous that said goods, chattels, rights, c redits and estate, may be well and faithfully administered, applied and disposed of according to law, do therefore, by these presents, appoint and constitute you, the said E. F., Administrator of all and sin- gular the goods, chattels, rights and credits of the said deceased: You having accepted said trust, and exe- cuted your bond to our acceptance, well and faithfully, in the manner prescribed by law, to make and re- turn into said Court, on oath, Avithin three months from the date of these Letters of Administration, a true in- ventory of all the moneys, goods, chattels, rights and credits of the said 530 CLERK'S ENTRIES. Clerk's Entries. 9. Where the Widow declines. In the matter of A. B.'s Estate. The Certificate of C. B., widow of A. B., late of, &,c. in said coun- ty, deceased, was this day produced in Court, by which it appears that she decUnes taking Letters of Administration on the estate of her deceased husband, and requests the appointment of D. E. ; and there- upon the Court appoint the said D. E. Administrator on said estate, and J. S. and J. N. Appraisers. Ordered that said Administrator give bonds in the sum of — dol- deceased, which have or shall come to your possession or knowledge, and, if required by the said Court, an in- ventory of the real estate of the de- ceased ; also to administer, according to law, all the moneys, goods, chat- tels, rights and credits of the deceas- ed, and the proceeds of all his real estate, that may be sold for the pay- ment of his debts, which shall, at any time, come to your possession as such Administrator, or to the possession of any other person for you ; also to render, upon oath, a true account of your administration, within eighteen rnonths from the date of these Letters of Administration, and at any other times, when required by the said Court, or the law ; also to pay any balance remaining in your hands, upon the settlement of your accounts, to such persons as the Court or the law shall direct ; and also to deliver these Letters of Administration into said Court, in case any will of the deceased shall be hereafter duly pro- ved and allowed. In testimony whereof, wc have caused the Seal of our said [Seal.] Court to be hereunto af- fixed. Witness, , Clerk thereof, at — in said County, this — day of — A. D. — . , Clerk, Form of Administrator'' s Bond. Know all Men by these Presents, that wc, A. B. as principal, and C. D. and E. F, as sureties, of the coun- ty of — , are held and firmly bound unto the State of Ohio, in the penal sum of — dollars, lawful money of the United States, to which payment well and truly to be made unto the said State of Ohio, we do bind our- selves, our heirs, executors and ad- ministrators, and every of them, joint- ly and severally, firmly by these pre- sents. Sealed with our seals, and dated the — day of — Anno Domini one thousand eight hundred and for- The condition of the above Obli- gation is such, that if the above nam- ed A. B., Administrator of all and singular the goods, chattels and cred- its of J. S., late of the County and State aforesaid, deceased, shall faith- fully make and return into Court, on oath, within three months, a true in- ventory of all the moneys, goods, chattels, rights and credits of the de- ceased, which have or shall come to his possession or knowledge ; and also, if required by the Court, an in- ventory of the real estate of the de- ceased ; and administer, according to law, all the moneys, goods, chattels, rights and credits of the deceased, CLERK'S ENTRIES. 531 Clerk's Entries. lars, with C. D. and E. F. as sureties, conditioned according to law ; and thereupon the said D. E. appeared in open Court and accepted said appointment, and gave bonds accordingly. 10. Further time allowed to Administrator. On motion and affidavit filed, It is ordered that S. S., Adminis- trator on the estate of W. W., have the further time of one year to settle the accounts of said estate. 11. Citation against Administrator or Guardian.* On motion of A. B., by Mr. O., his Attorney, It is Ordered, that a citation issue against J. S., Administrator on the estate of A. S., and the proceeds of all his real estate that may be sold for the pa3'-ment of his debts, which shall at any time come to the possession of the Admin- istrator, or to the possession of any other person for him ; and render, upon oath, a true account of his ad- ministration, within eighteen months, and at any other times, when requir- ed by the Court or the law ; and pay any balance remaining in his hands, upon the settlement of his accounts, to such persons as the Court or law shall direct ; and deliver the Letters of Administration into Court, in case any will of the deceased shall be thereafter duly proved and allowed, then this Obligation to be void ; oth- erwise to remain in full force and virtue in law. Form of Commission to Appraisers. The State of Ohio, To A. B., C. D. and E. P., GREETrXG : You having been appointed by the Court of Common Pleas of [[Seal.] the County of — , to take an inventory and appraisal of the personal goods, chattels, mon- eys, rights and credits, whereof J. S. late of the township of — , died seiz- ed : These are therefore to authorize and require you, well and truly to appraise all the goods, chattels, mon- eys, rights and credits of the said de- ceased, which shall be presented to you by the Administrators, and a true and accurate inventory thereof make and sign, that the same may be re- turned to this office within three months from the date hereof. Witness, T. C. Clerk of our said Court, at — , this — dav of — , A. D.— . T. C. Clerk. (a) Form of Citation. The State of Ohio, To the Sheriff of — County, Greeting ; We command you that you make known to J. S., administrator on the estate of A. S., deceased, [or Guar- dian of C. S., 4'C.,] that he be be- fore the Judges of our Court of Com- mon Pleas within and for the said County of — , on the first day of 532 CLERK'S ENTRIES. Clerk's Entries. [or Guardian of C. S., fyc.,] to show cause, if any there be, on the first day of the next Term, why lie neglects to make settlement of his administration on said estate, [or, of his accounts as Guardian of the said C. D. ^c] 12. Accounts of Administrator referred to a Master, &c. In the matter of N. G.'s Estate. The Court having this day inspected the report of the Special Master Commissioner to whom the accounts of A. B., Administrator on the estate of the said N. G., were referred, at the last Term, It is thereupon Ordered, that the said A. B. do appear personally before said Master, at his office in — , at nine o'clock, A. M., on the — day of — , A. D. — , and then and there submit to an examination touch- ing said accounts ; and that he then and there produce before the said Master, such Books, Papers, Accounts and other Documents, as may be required by said Master ; and that he continue to appear be- fore said Master from day to day until discharged by him. And the said Master is ordered to report his proceedings in the premises to this Court on the first day of their next Term ; to which time this matter is continued. 13. Final settlement of Administrator's Account. G. B., Administrator on the estate of T. B., deceased, this day settled his accounts with the Court, and a balance is found in his hands due the estate of the said T. B. of — dollars, which is ordered to be distributed according to law. their next Term, at the Court House Herein fail not, but of this writ 'in said County, to show cause, if any and your service make due return, there be, why he neglects to make Witness, A. C, Clerk of our said settlement of his administration on Court, at, &c., this — day of — A. said estate, [or of his accounts as U. — , A. C. Clerk. Guardian of the said C. S., ^'c] CLERK'S ENTRIES. 533 Clerk's Entries. 14. Appointment of Guardian by Certificate of Justice of THE Peace.* In the matter of A. B., an Orphan. The Certificate of J. S., Esquire, a Justice of the Peace of this County, was this day produced in Court, by which it appears that A. B., aged — years, on the — day of — A. D. — , orphan Son of C. B., late of, &c., in said County, deceased, makes choice of O. P. for his Guardian ; and the Court approving the choice. It is Ordered, that the said O. P. be appointed such Guardian accordingly, [A7id, It is further Ordered, that the said O. P. be also appointed Guardian to A. B., aged — years, on the — day of — A. D. — , other orphan children of the said C. B., deceased.] And It is further Ordered, that said Guardian give bonds in the sum of — dollars, with J. N. and O. N. as sureties, conditioned according to law ; and thereupon the said O. P. appeared in open Court, and ac- cepted said appointment and gave bonds accordingly. (a) Letters of Guardianship. To all people to whom these presents shall come, Greeting : Be it known, that at the — Term of the Court of Common Pleas of the County of — and State of Ohio, be- gun and held at the Court House in — , within and for said county, before the Honorable A. B., President Judge of the — Judicial Circuit of the Courts of Common Pleas in the State of Ohio, and C. D., E. F. and G. H., Esquires, Associate Judges of said County, holding said Court on the — day of — in the year of our Lord one thousand eight hundred and — , sitting as a Court of Probate, and for the appointing of Guardians, &c. Application having been made in due form, the said Court did appoint O. P. Guardian to B. C, T. C. and J. C, of — , in said County, Minors and Orphans of A. C, late of said county, deceased, and did order said Guardi- an to give bonds to the State of Ohio, with T. W. and J. W. as surety, in the sum of — dollars, conditioned to discharge with fidelity the trust re- posed in him, and for rendering an accurate statement of his transactions, with a just account of the profits ari- sing and accruing from the estate of his wards, and for delivering up the same to the said Court when there- unto required. And the said O. P. having entered into bonds agreeably to the aforesaid order, and filed the same in the office of the Clerk of said Court, according to law, he is duly constituted Guardian to said minors, and is by these presents authorized and empowered to take the care, guardianship and management of his said wards and their property and estate, and the profits arising there- from, for the use and benefit of said minors, according to the provisions of the Statute in such case made and provided. In testimony whereof, I, A. C, Clerk of said Court, have hereunto set my hand and affixed the seal of said Court, at — this — day of — , A. D. — . A. C. Clerk. 534 CLERK'S ENTRIES. Clerk's Entries. 15. The like, on Orphan appearing in Court. In the matter of A. B., an Orphan. This day appeared in Court A. B,, aged — years, on the — day of — A. D. — , orphan So7i of C. B., late of, &c., in said County, deceased, and in open Court made choice of O. P. for his Guardian, and the Court approving the choice, It is Ordered, &.C., [conclude as in the last Precedent.] 16. The like, to Orphans under the age of choosing. In the matter of A. B., an Orphan. On motion. It is Ordered, that O. P. be appointed Guardian to A. B., aged, &c., [as in No. 14, Ante. 533.] Alien's Declaration.* J. C, an Alien and Native of — , a free white person, this day came into open Court, [oi' before me, A. C, Clerk of the Supreme, Guardian's Bond. Know all men by these presents, That Ave, A. B., &c., of the County of — , and State of Ohio, are held and firmly bound unto the State of Ohio, in the penal sum of — dollars, lawful money of the United States, to which payment well and truly to be made unto the State of Ohio, we do bind ourselves, our heirs, execu- tors and administrators, and every of them, jointly and severally, firmly by these presents. Sealed with our seals, and dated the — day of — A, D. — . The condition of this obligatioa is such, That if the above named A. B., Guardian for C. B., &c., of the County and State aforesaid, minor and orphan of A. C, late of the County and State aforesaid, deceased, shall discharge with fidelity the trust reposed in him as Guardian as afore- said, and shall render an accurate statement of his transactions as such Guardian, with a just account of the profits arising and accruing from the real or personal estate of his ward, and shall deliver up the same to the Court when thereunto required, then the above obligation to be void, oth- erwise, to remain in full force and virtue in law. (a) ,8ffidavit of Mien^s Intention. The State of Ohio, — County, ss. I, A. C, An Ahen and Native of — , being duly sworn, depose and say, that I first arrived in the United States in the month of — A. D. — , and that it is bona fide my intention to become a citizen of the United States, and to renounce forever all CLERK'S ENTRIES. 535 Clerk's Entries. Superior, District or Circuit Court of a State, or, of a Circuit, or, District Court of the United States,] and declared, on his solemn oath, that he first arrived in the United States in the month of — , A. D. — , and that it is his bona fide intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to every Foreign Prince, Potentate, State or Sovereignty whatsoever, and particularly to — , King of — , [the Prince, Potentate, State or Sov- ereignty, of which the Alien is a citizen or subject.] allegiance and fidelity to every for- eign Prince, Potentate, State and Sovereignty whatsoever, and partic- ularly all allegiance and fidelity to — , King of — , whose subject I am. Sworn to and subscribed before me, this — day of — A. D. — . Cleric's Certificate thereto. The State of Ohio, — County, ss. Be it remembered, That on the — day of — A. D. — , J. C, an Alien and Native of — , personally ap- peared before me, A. C, Clerk of the Supreme Court, in and for said County, and declared on his solemn oath, that he first arrived in the Uni- ted States in the month of — , A. D. — , and that it is his bona fide inten- tion to become a citizen of the Uni- ted States, and to renounce forever all allegiance and fidelity to every for- eign Prince, Potentate, State or Sov- ereignty whatsoever, and particularly to — , King of — , and subscribed his name to said Declaration, which remains on file in my office. In testimony whereof, I have here- unto set my hand officially, and af- fixed the Seal of said Court, at the City of — , this — day of — A, D. — . A. C. Clerk. Affidavit of Mien^ s Moral Character. I, A. B., of, «&c., of lawful age, being duly sworn, depose and say, that I am well acquainted with J. C, late of, &c., that he has resided in the United States at least five years last past, and in the State of Ohio at least one year last past ; that he is a man of good moral character, at- tached to the institutions of this coun- try, and well disposed towards the good order and happiness of the same ; and that it has been his inten- tion as I verily believe, for more than two years last past, to become a Cit- izen of the United States. Subscribed and sworn to in open Court, this — day of — A. D. — . A. C. Clerk. Certificate of Naturalization. The United States of America, To all to whom these Presents shall come send Greeting : Whereas, at a Term of the Court of Common Pleas, begun and held at — , on^ — , within and for the County of — , and State of Ohio, J. C, an Ahen and Native of — , and a Subject of the King of — , personally came be- fore the Judges of the said Court of Common Pleas, and made applica- tion to be naturalized, under the Laws of the United States; and it appearing, by sufficient testimony, to the satisfaction of said Court, that he, the said J. C, had made declara- tion "of his intention to become a citizen of the United States, in due form of law, at least two years 536 CLERK'S ENTRIES. Clerk's Entries. 18. Certificate of Naturalization granted. J. C, an Alien and Native of — , a free white person, this day came into Court and proved to the satisfaction of the Court, that lie made in tiiis Court, two years ago, [or in the Court of Common Pleas of — County,] the requisite declaration of his intention to be- come a citizen of the United States, that he has resided in the Uni- ted States for five years last past, that he has resided one year last past in the State of Ohio, and tliat during all that time he has be- haved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. And thereupon the said J. C. in open Court here made solemn oath, that he will support the Consti- tution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign Prince, Potentate, State or Sovereignty, and particularly all allegiance and fidelity to — , King of — , whose subject he was. Whereupon It is Ordered by the Court that a certificate of Naturalization be issued to him on payment of the costs of this application. before making his said application ; that he had been a resident of the United States for at least five years then last past, and of the said State of Ohio for at least one j'^ear then last past ; and also that during that time, he had behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well dis- posed to the good order and happi- ness of the same ; Avhcrcupon, by order of the said Court, an oath of allegiance was administered in due form of law, to the said J. C, in open Court, that he will support the Constitution of the United States, and that he absolutely and entire- ly renounced and abjured all alle- giance and fidelity to every foreign Prince, Potentate, State or Sove- reignty whatsoever, and particularly to — , King of — , whose subject he was; And thereupon It was Ordered by the said Court, that a Certificate of Naturalization be granted to the said J. C, according to the form of the Statute of the United States in such case made and provided : which by these Presents is done ac- cordingly. Therefore the said J. C. is a Citizen of the United States. In testimony whereof, I, Seal. A. C-, Clerk of the said Court of — , do hereby sub- scribe my name, and afiix the Seal of said Court, at — this — day of — in the year of our Lord — , and of the Independence of the United States the — . A. C. Clerk. CLERK'S ENTRIES. 537 Clerk's Entries. 19. The like, where the Alien arrived in the U. States, UNDER 18. J. C. an Alien and Native of — , a free white person, this day came into open Court and made the Declaration and Proof required, by the laws of the United States, of Aliens who have resided in these States three years next preceding their arrival at the age of Twenty-one years, for the purpose of obtaining the benefit of the Laws of the United States, relating to Naturalization: And thereupon the said J. C, in open Court here, made solemn oath, &c. [Conclude as in the last Precedent.] 20. Insolvent's Certificate granted, on Default. In the matter of T. B., an Insolvent Debtor. This day came the said T. B., by Mr. O. his Attorney, and the creditors of the said T. B. being three times solemnly called, came not, but made default : Therefore It is ordered that a final Certifi- cate be granted to the said A. B., protecting him from arrest and im- prisonment, upon the debts in his said Schedule set forth ; pursuant to the Statute in such case made and provided. Ordered that said Certificate be stayed till payment of the costs herein, taxed against the said T. B. to — dollars, [or that the said T. B. 2my the costs against him, amounting in the whole to — - dollars, in sixty days, or that execution issue therefor.] 21. The like, on Hearing. In the matter of T. B., an Insolvent Debtor. This day came the said T. B., by Mr. O. his Attorney, and also J. S. &c., creditors of the said T. B., and the testimony of the witnesses being heard, and due deliberation thereupon had, the Court are of opinion that the application of the said T. B. ought to be granted : Therefore It is ordered, that a final Certificate be granted to the said T. B., discharging him from arrest and imprisonment, upon the debts in his said Schedule set forth ; pursuant to the Statute in such case made and provided ; and that the said creditors of the said T. B. pay their own costs herein, taxed to — dollars, in — days, or that execution issue therefor. Ordered that said Certificate be stayed till payment of the costs herein taxed against the said T. B. &,c. 68 538 CLERK'S ENTRIES. Clerk's Entries. 22. Clergyman licensed to Marry. ^ On Motion, and it appearing to the Court that the Reverend W. S. is a regularly ordained Minister of the Gospel, of the denomination commonly called — , It is ordered that he be licensed to solemnize marriages within the State of Ohio so long as he continues to be such a Minister. 23. License granted to Auctioneer.'' This day came in Court A. B. of — in said County, and presented his petition to be appointed and licensed to exercise the trade or oc- cupation of an Auctioneer in said County of — ; and, on hearing, It is ordered by the Court that a License for that purpose be issued to the said A. B. on his giving bond, agreeably to the Statute, in the sum of onelhousand dollars, with C. D. and E. F. as sureties, and paying into the Treasury of said County a duty of — dollars. 24 Tavern License Granted. On Motion, It is ordered that M. F. be licensed to keep Tavern, at his house in — for the term of one year, on his paying into the County Treasury the sum of — dollars. (a) Form of License to Marry. unto subscribed my name, and affixed the Seal of said The State of Ohio, Court, at, &c., this — day re -1 of — , A. D. — . C^=^^-^ A. C. Clerk. To any person lawfully authorized Per J. W., Deputy. to solemnize Marriages in the County of — , Greeting : Certificate. — I do hereby certify that on the — day of — , A. D. — , These Presents shall be your suf- I joined in Matrimony the within ficient Warrant to join in Matrimony named A. B. and C. D. A. B. and C. D. ; certifying the same within three months tliereafter, to the (b) Form oj License. Clerk of the Court of Common Picas of the said County of — , pursuant to The State of Ohio, — County, ss. the Statute in such case made and pq -, provided. L 'J In testimony whereof I, A. C, In pursuance of an order of the Clerk of the said Court of Court of Common Pleas of the Coun- Common Pleas, have here- ty of — , at the — Term thereof, A. CLERK'S ENTRIES. 539 Clerk's Entries. 25. Tavern License Refused. On hearing the AppHcation of A. B., for a Tavern License, the Court refuse the same : Whereupon It is ordered that the said A. B. pay the costs of this AppUcation, in — days, or that execution is- sue therefor. 26. Commissioners to examine a Road. W— H— , ^ V. > AppUcation for a Road. The Trustees of — Township. ) On Motion, It is ordered that A. H., G. S. and G. R., be ap- pointed Commissioners to examine the road proposed to be opened on this appUcation, or so much thereof as passes through the land of the said W. H., at any time between the rising of this Court and the first day of the next Term, and assess the damages of the said W. H., by reason of the opening said road, and make return of their proceed- ings to the next Term of this Court, to which time this appUcation is continued. 27. Order fixing the Number of Justices for a New Town- ship. This day it being shown to the Court that a New Township has been set off by the County Commissioners of — County, composed, in part, of E, C and D townships, and caUed East — , and the Court being advised that said New Township is duly organized, and that township officers have been duly elected therein, It is thereupon ORDERED that two Justiccs of the Peace be elected for said Township of East — , and that the 3d Tuesday, being the — day of — , A. D. 18 — , be the day upon which said election shall be holden. 28. New Appraisement Ordered. On Motion, and it appearing that the lands levied upon in this case have been twice offered, and not sold for want of bidders. It is ord- ered that the appraisement be set aside and a new one made. D. — , License is granted to A. B. County of — , for the term of one to sell goods, wares and merchandize, year from the — day of — A. D. — . at Public Vendue, within the said In testimony whereof, &c. 540 CLERK'S ENTRIES. ('lerk's Entries. 29. Costs Retaxed. On motion of the defendant by his Attorney, It is ordered that the Clerk retax the costs in this case, charging to the defendant the costs of his own witnesses only, and to the plaintiff all other costs ; and that execution issue accordingly. 30. Recognizance Forfeited. This day was returned into Court a certain recognizance, entered into on the — day of — , A. D. — , before J. B., a Justice of the Peace for the Township of — , in the County of — , by C. D. and E. F., in the penal sum of — dollars; conditioned for the appearance of the said C. D. at the present Term of this Court, to answer a charge of — , and abide the order of the Court, and not depart without leave. And thereupon the said C. D., being three times solemnly called to come into Court and answer said charge, came not, but made default ; and the said E. F., being in like manner called to come into Court, and with him bring the body of the said C. D., as by the terms of liis re- cognizance he was bound to do, came not, but made default : Where- upon the Court declare the said recognizance forfeited. 31. Rule for Security for Costs.^ On motion to the Court by Mr. S. counsel for the defendant, It rs ORDERED that the plaintiff give security for costs, within — days, or, by the first day of next Term, and in default thereof that he be nonsuited. (a) The Form of the Security may said plaintiff in the penal sum of One be as follows : Hundred Dollars, to be levied of my Whereas, in the suit of A. B. goods and chattels, lands and tene- against C. D., at the — Term, A. D. ments, in case the said plaintiff shall — , of the Court of Common Pleas, fail to pay all legal costs which shall holden in and for the County of — , be adjudged against him in said suit, the said plaintiff was ruled to enter Attest, my hand and Seal, this security for costs in — days or be- — day of — , A. D. — . come nonsuit : — See Motion for judgment against Therefore, I, J. S., do hereby ac- Security for Costs, Ante. 500. knowledge myself bail for costs for CLERK'S ENTRIES. 541 Clerk's Entries. 32. Juror withdrawn and Cause continued. This day came the parties by their attorneys, and a jury being called, came, to wit, E. F. &.C., who were empannelled and sworn, the truth to speak upon the issue joined between the parties ; and tliereupon, by consent of parties, and with the assent of the Court, G. S., one of the said Jurors, is withdrawn: Whereupon It is ord- ered that the residue of said Jurors be discharged, and the cause continued at the costs of, &c. 33. Defendant surrendered by Special Bail. G. S., special bail for the said C. D., this day surrendered the said C. D. in open Court, in discharge of his recognizance ; and thereupon, on motion of the plaintiff, It is ordered that the said C. D. be com- mitted to the Jail of the County, there to remain until discharged by due course of law. [If the defendant is not prayed into custody, then after the word " recognizance," say, and thereupon the said G. S. is altogether discharged therefrom, and the plaintiff refusing to pray the said C. D. into custody. It is ordered that the said C. D. be discharged.] 34. Jury Sworn and Adjourned. This day came the parties by their Attorneys, and thereupon came a Jury, to wit, E. F. &.C., who, being empannelled and sworn the truth to speak upon the issue joined between the parties, and the evidence not being closed, were adjourned until to-morrow morning at nine o'clock. 35. Satisfaction of Judgment. This day came into Court A. B. and acknowledged himself satisfied of a judgment recovered by him in this Court, at — Term A. D. — , in an action of assumpsit, against C. D., for — dollars damages, and — dollars costs : Therefore let the said C. D. of the damages and costs aforesaid be acquitted. 542 CLERK'S ENTRIES. Clerk's Entries. 36. Rule tor Attachment for Contempt of Court.* Ordered that a rule be taken upon A. B., to be and appear before this Court on the first day of their next Term, to show cause, if any he have, why a writ of attachment should not issue against him for a contempt of this Court, in writing and causing to be published, in a newspaper called the — , bearing date — , a certain paper or essay entitled — , and signed — ; which said paper or essay reflects upon the integrity and impartiality of this Court, and was calculated and designed to forestall the public opinion, by creating false impressions in relation to a certain cause then pending in this Court, and wherein C. D. was plaintiff and E. F. defendant, and thereby to prevent the fair and impartial administration of justice ; and it is further ordered, that a copy of this order, duly certified by the Clerk of this Court, be served upon the said A. B., by the Sheriff of this county, at least twenty days previous to the next Term of this Court. 37. Order for Administrator to complete Real Contract of Intestate. This day came the Petitioner, and showed to the satisfaction of the Court, that the contract in the said Petition set forth was duly made, and has been fully complied with on the part of the said D. W., the purchaser of the lands in the said Petition described, and that due notice of the pendency of this Petition, and the demand thereof, has been given to the said heirs at law of the said C. D. : Therefore It IS ordered that the said A. B., for and in behalf of the said heirs of the said C. D., make, execute and deliver to the said D. W. a deed in fee simple for the lands and tenements in said Petition described, according to the Statute in such case made and provided. 38. Admission of an Attorney and Solicitor.'' This day J. S., an Applicant for admission to the Bar, appeared in (a) See Chancery, Title, Breach the State of Ohio, began and held at of Injunction, Post. — , in the County of — , in the year of our Lord — , J. S., an Applicant „. _ /> y-. ^-z- / for admission to the Bar, appeared in (b) Form of Certificate. ^^^^ ^^^^^^. ^^^^ it being shown to ^ „ , . the satisfaction of said Court, that the To all whom it may concern : ^^.^ j_ g_ ^^,^^ ^^ ^^^^ ^^^^j ^j^^^^^. These Presents shall certify, that ter, and in all other respects qualifi- at a Term of the Supreme Court of ed, according to the Statute in such EXECUTIONS. 543 Executions. open Court ; and it being shown to the satisfaction of the Court, that the said J. S. is of good moral character, and in all other respects qualified, according to the Statute in such case made and provided ; and the said J. S. being thereupon sworn to support the Constitution of the United States, and of the State of Ohio, and in all things to demean himself faithfully and honestly as an Attorney and Coun- sellor at Law, and Solicitor in Chancery : It is ordered, that the said J. S. be admitted to practice as an Attorney and Counsellor at Law, and Solicitor in Chancery, in the several Courts of the State of Ohio. See Assumpsit, and other Actions at Law — Orders and Decrees in Chancery. EXECUTIONS.- By the Statute of 1831, a Fieri Facias commands the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ, and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor. It also requires the exact amount of the debt, damages, and costs, for which judgment is entered, to be in- dorsed on the Execution ; Swan's St. 470, ^. 3. By the Statute of 1846, an Execution awarded from the Common Pleas on Scire Facias upon a Justice's judgment, is to be issued against goods and chattels, lands and tenements the same as in other cases; Ohio Stat. vol. 44, p. 48, ^3. For general Rules regulating Costs, See Motion for Judgment against surety for Costs, Ante. 506. case made and provided ; and the (a) Executions in England, ex- said J. S. being thereupon sworn to plained ; 14 Mass. 473. A Vendi. support the Constitution of the Uni- is not indispensable — it gives no new ted States, and of the State of Ohio, authority— a sale on execution may and in all things to demean himself be good, though expired ; 1 Ves. Sen. faithfully and honestly as an Attor- 195. What is a levy on personal ney and Counsellor at Law, and So- property and its effect; 1 1 Wend. 548; licitor in Chancery : It was therefore 14 rfo., 123. At Common Law the ordered, that said J. S. be admitted Sheriff was not bound to sell at Auc- to practice as an Attorney and Coun- tion — If either party desired it, he had sellor at Law, and Solicitor in Chan- to pay the expense ; 2 T. li. 157 ; 5 eery, in the several Courts of the Mass. 4G2. What is done when U, S. State of Ohio. Marshall and a Sheriff levy on the In testimony whereof, &c. same property; 10 Fet. 400; 4 How- 544 EXECUTIONS. Fieri Facias. No.l. Fieri Facias. Fieri Facias on a Judgment or Decree for Money, in the Common Pleas. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : We command you that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailiwick, you cause to be made the sum of — dollars, damages [or — dollars debt and — dollars damages, as the case may be], and — dollars costs of suit, which by the Judgment [or Decree as the case may be] of our Court of Common Pleas within and for the county of — at the — Term thereof, A. D. — A. B. recovered against the said C. D., with interest thereon from — [Date of the judgment or decree] un- til paid, together with the further sura of — dollars, costs of increase on said judgment ; and also the costs that may accrue ; and have you the said moneys before our said Court of Common Pleas, at their next Term, to render, &c., And have you then there this writ. Witness, A. C. Clerk of our said Court of Common Pleas, at — this — day of — A. D. — . A. C, Clerk, By T. C, Deputy. aril, 4. Sheriff's deed may be made to assignee of purchaser ; 1 Dana 212; 7 Ohio Rep. iyb,part 1st: And Chan- cery will order it so ; 1 Sug. Vend. 72, note. Chancery will also some- times order a re-sale, Id, 75, note. On a Join^ judgment against several, the Sheriff" upon Execution may use such indifferency as justice requi- res ; 7 Vin. Mg. 262. Execution in Sheriff's hands at defendant's death may still be executed ; 2 Paige, 367. Death of plaintiff, after Exe- cution delivered to the Sheriff j abates the Execution ; 2 Bibb, 198. Money may be taken in Execution if in pos- session of the defendant ; but the Sheriff cannot levy on it in his own hands — the Sheriff must have the money in Court ; I Crunch, 4.1. Af- ter a levy on sufficient goods, the de- fendant is liable to no further distress, while the property is kept from him; 1 Marsh, 292. Nor to another Fi. Fa.; 4 /. /. 3Jarsh. 236 ; 7 Monroe, 262, A Sheriff holding an Execu- tion against several is not bound to exhaust the personal property of all before he sells the land of either; 6 /. J. Marsh. 237. After a levy the death of the plaintiff does not destroy the lien — a sci. fa. lies — /(/. 321. In Kentucky, under their Statute, lands in adverse possession of another cannot be sold on Execution ; Jd., 481; 5 il/onroe, 480 ; \ Dana,'lVl. Sheriff is not bound to inquire who of several defendants is principal and who sureties ; 5 \J. ./. Marsh. 368. A sale on Execution issued after de- EXECUTIONS. 545 Fieri Facias. No. 2. The Like, on Mandate from the Supreme Court. [Seal.] The State of Ohio, To the Sheriff* of — County, Greeting : We command you that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailiwick, fendant's death confers no title ; 2 Monroe, 60. Where the Sheriff sells property of a stranger and pays the money to the plaintiff, and the pur- chaser afterwards loses the property, the plaintiffin execution is not liable to refund the money to the purchaser, either at law or in Equity ; 4 Litt. 244. Where lands are sold on Exe- cution, and afterwards in ejectment by the defendant in Execution, the sale is held void, Equity will hold the land bound for the purchase money on the Execution ; 5 Dana, 576. How many Executions may be issued at once, 2 Black/. 363. What articles may be levied on — one of two gowns, &c.; 2 JBlackf. 363. A sale on a Fi. Fa. to a stranger is good, though the defendant be in custody on a ca. sa, 5 Pet. 370 ; 1 Ves. 195. A purchaser cannot ob- ject to any defect of title at a Sheriff's sale of which he had notice ; 1 Sug. Vend. 75, note. Lands taken by legal process may be sold though county lines be altered ; 7 Pet. 468. Effect of State Statutes on sales under U. States' authorities, 13 Pet. 436, 576. If the Sheriff even as agent of another bid off lands the sale is void ; 1 Marsh. 211. So if he sells too much land ; 3 Alarsh. 617 ; 7 Bana, 209. See 6 /. J. Marsh. 335, where lands worth 24,000 dollars were sold for 16 dollars. See also 1 Sug. Vend., 72, note. After 20 years' possession, the Execution Book and recitals in Sheriif's deed are prima facie evidence of a valid sale ; 4 69 Bana, 430. A purchaser on Execu- tion, who loses the property on an ad- verse claim, may be substituted in Equity, in place of the judgment creditor ; 8 Bana, 183. A purcha- ser acquires no right of entry until he obtains a deed ; 8 Bana, 167. Ca. Sa., against two joint trespassers and both taken — one gives his note payable in instalments and the plain- tiff discharges him-— the other is re- leased ; 4 Eng. Com. Laiv Rep. 418. See also 1 Black/. 180. Where the defendant is in custody on a Ca. Sa. the plaintiff cannot go into Equity to reach an Equitable interest ; 1 Paige, 615. A Deputy cannot serve an ex- ecution in favor of himself or his principal ; 3 Marsh. 536. Imprison- ment does not exonerate the defen- dant, nor a joint obligor ; 7 J. J. Marsh. 417. An Execution will not be set aside because A. promised to buy in the land for B., but in fact bought it in for himself; 4 /. J. Marsh. 492. A sale will be set aside where the Sheriff acts unfairly ; 2 Litt, 118, 217; 7 Monroe,Qlb. See 7 Bana, 209; 9 (/o, 211 ; 1 Black/. 412; Q. Johns. Ch.,4U. The Court for reasonable cause may give the Sheriff further time to return his Ex- ecution ; 2 Black/ 67, where the English cases are collected. For decisions of the Supreme Court of Ohio relative to sale on Ex- ecution, See Wilcox's Bigesf, 265 to 283 ; Also 15 Ohio Pep. 735 ; 13 do., 220; Wright's Reports, 809, 810, 811. 546 EXECUTIONS. Fieri Facias. you cause to be made the sum of — dollars, damages [or — dollars debt and — dollars damages, as the case may be], and — dollars costs of suit, [a7id — dollars penalty,^ which by the Judgment [or Decree, as the case may be] of our Supreme Court within and for the county of — at the — Term thereof, A. D., — , A. B. recovered against the said C. D., (and for having Execution whereof a special Mandate is sent down from our said Supreme Court to our Court of Common Pleas within and for the said county of — ) with interest there- on from ihe — day of — A. D. — [Date of the judgment or decree] until paid, together with the further sum of — dollars, costs of in- crease on said judgment ; and also the costs that may accrue ; and have you the said monies before our said Court of Common Pleas, at their next Term to render, &.C., And have you then there this writ. Witness, &c. No. 3. Fieri Facias AGAi>fST Principal and Sureties." [Seal.] The State of Ohio, To the Shcrift" of — County, Greeting : We command you that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailiwick ; and for want of goods and chattels, lands and tenements of the said C. D., then ol the goods and chattels, and for want thereof, of the lands and tenements of E. F., in your bailiwick, you cause to be made the sum of — dollars damages, and — dollars costs of suit, which by the Judgment of our Court of Common Pleas within and for the County of — , at the — Term thereof A. D. — , A. B. recovered a- gainst the said C. D. and E. F., and whereof the said C. D. is princi- pal debtor, and the said E. F. his surety, as appears to us of record ; with interest thereon from the — day of — A. D. — , [date of the judgment,] until paid, together with, &c. [Conclude as in No. 1, Ante. 544. (a) In an execution against Prin- Principal, and for Avant of property, cipal and Surely, the SherifTmust be tlien against the Surety; Elliott v. directed to proceed Jirst against the Ebaore, 1(3 Ohio Rep. 27. EXECUTIONS. 547 Fieri Facias. No. 4. Fieri Facias where a Defendant is made party by Scire Facias. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. on the — day of — A. D. — , in our Court of Common Pleas within and for the County of — , and by the judg- ment of the same Court, recovered against C. D. — dollars damages and — dollars costs of suit ; and whereas afterwards, upon our cer- tain writ of Scire Facias in that behalf, to wit, on the — day of — — A. D. — , by the judgment of the same Court, it was considered that E. F. be made a party defendant to the judgment aforesaid, and that the said A. B. recover against the said E. F. his costs in that be- half expended, taxed to — dollars ; whereof the said E. F. is con- victed as appears to us of record ; Therefore we command you that of the goods and chattels, and for want thereof, then of the lands and tenements of the said E. F., you cause to be made the damages and costs aforesaid, with lawful interest thereon until paid, together with the further sum of — dollars, costs of increase ; and also the costs that may accrue ; and have you the said moneys, &c. [ Conclude as in No. i, Ante. 544. No. 5, Fieri Facias on Suggestion of Further Breaches after Judgment for Penalty. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. on the — day of — A. D. — , in our Court of Common Pleas within and for the County of — , and by the judgment of the same Court, recovered against C. D. a certain penalty of — dollars debt, and also — dollars damages, by reason of the detention thereof, with — dollars, costs of suit ; and whereas afterwards, upon our certain writ of Scire Facias in that behalf, by the judgment of the same Court, it was considered that execution be awarded against the said C. D., upon the judgment aforesaid, for the further sum of — dollars for other damages in said writ of Scire Facias assigned ; and also that the said A. B. recover against the said C. D. — dollars, his costs in that behalf expended, whereof the said C. D. is convicted, as appears to us of record ; Therefore we command you that of the 548 EXECUTIONS. Fieri Facias. goods and chattels, and for want thereof, then of the lands and tene- ments of the said C. D. in your bailiwick, you cause to be made the damages and costs last aforesaid, with lawful interest, &c. [Conclude as ijiNo. 1, Ante. 544. No. 6. Fieri Facias awarded from Common Pleas on .Titstice's Judgment. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas A. B. on, &-c., before S. S. Esquire, one of our Justices of the Peace within and for the County of — , recovered a judgment against C. D. for — dollars damages, and — dollars, costs of suit ; and whereas afterwards, upon one certain writ of Scire Facias in that behalf, to wit, on the — day of — , A. D. — , in our Court of Com- mon Pleas, within and for the said County of — , and by the judg- ment of the same Court, it was considered that execution be awarded from the said Court of Common Pleas, against the said C. D., upon the judgment aforesaid, for the damages and costs aforesaid ; and also that the said A. B. recover against the said C. D. his costs in that behalf expended, taxed to — dollars ; whereof the said C. D. is con- victed, as to us appears of record : Therefore we command you, that of the goods and chattels," and for want thereof, then of the lands and tenements of the said C. D., in your bailwick, you cause to be made the damages and costs aforesaid, with lawful interest, &,c. — [Conclude as in No. 1, Ante. 544. No. 7. Fieri Facias for Costs. ^ [Seal.] State of Ohio, — County, ss. To the Sheriff of the County of — , Greeting: Whereas in a certain action of — , lately prosecuted in our Court of Common Pleas, [or, Supreme Court, as the case may be,] within and (a) Execution goes as well against writs, &c. are to be tested by the goods and chattels as lands and tene- Clerk, and run in the style, " The inents ; Ohio Stat. vol. 44, p. 48. State of Ohio, — County, ss." The Constitution provides, that the style (b) This Form is prescribed by the of all process shall be, " The State of Statute of 1835 ; Swan's Stat. 405, (Jhio." ^rt. Ill, § 12. §51. By the Statute of 1837, all EXECUTIONS. 549 Fieri Facias. for the County of — , wherein — was plaintiff, and — was defend- ant, the costs of said — were taxed at — dollars — cents : You are therefore commanded, that of the goods and chattels, or for the want of goods and chattels, of the lands and tenements of the said — in your bailwick, you cause to be made the costs aforesaid, with interest thereon, from the — day of — , A. D. — , [the date of the judgment,] until paid, and costs that may accrue. And if you shall levy and make said costs and interest, do you have the same before our Judges of our Court of Common Pleas, within and for said County of — , on the first day of the next Term of said Court, to render unto the per- sons entitled to the same ; and have you then and there this writ. Witness, — President of our Court of Common Pleas, this — day of — A. D. — . A. B. Clerk. No. 8. FiKRT Facias after a Levy of Part. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : Whereas by our writ we lately commanded you, that you should cause to be made of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailwick, the sum of, &c. \as in the former Fi. Fa.] whereof the said C. D. was con- victed, as appeared to us of record ; and that you should have that money, &c. [as in the Fi. Fa.] and that you should have then there that writ. And you at the day returned to us, in our said Court of Common Pleas, that by virtue of the said writ, you had caused to be made of the goods and chattels, lands and tenements of the said C. D. — dollars, parcel of the money in the said writ mentioned, which money you had ready at the day and place in the said writ contained, as by the said writ you were commanded ; and that the said C. D. had not any other or more goods or chattels, lands or tenements in your bailwick, whereof you could cause to be made the residue of the money in the said writ mentioned as aforesaid, according to the exi- gency of that writ: Therefore we command you, that of the goods and chattels, and for want thereof, then of the lands and tenements of the said C. D., in your bailwick, you cause to be made the residue of the said money in the said writ mentioned, together with the fur- ther sum of — dollars, costs of increase ; and also the costs that may accrue; and have you those moneys, &c. [Conclude as in No. 1, Ante. 544. 550 EXECUTIONS. Venditioni Exponas. No. 9. Venditioni Exponas. [Seal.] The State of Ohio, To the Sheriflf of — County, Greeting : Whereas by our writ we lately commanded you, that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D., in your bailwick, you should cause to be made tlie sum of dollars, damages, and — dollars, costs of suit, which by the Judgment [or Decree] of our Court of Common Pleas, within and for the Coun- ty of — , at the — Term thereof, A. D. — , A. B. recovered against the said C. D., with interest thereon from — , until paid, together with the further sum of — dollars, costs of increase on said judgment ; and also the costs that might accrue ; and that you should have the said money before our said Court of Common Pleas, at the — Term thereof, A. D. — , to render, &c. and that you should have then there that writ. And you at that day returned to us, in our said Court of Common Pleas, that by virtue of the said writ to you directed, you had, on the — day ot — , A. D. — , levied the said writ upon certain goods and chattels of the said C. D., to wit, [enumeraling them ; or, " for want of goods and chattels, you had levied the said writ upon certain lands and tenements of the said C. D.," describing them] ; which said goods and chattels [or lands and tenements] were then remaining in your hands unsold : Therefore we command you, that those goods and chattels [or those lands and tenements] you expose to sale(*); and have the money arising from such sale before our said Court of Common Pleas on — next, to render, &c. ; and have you then there this writ. Witness, &c. No. 10. The like, with a Fieri Facias clause. Proceed as in the last Precedent to the (*), and then say : — We also command you, that if, in your opinion, you cannot cause the said money to be made of the goods and chattels [or lands and tenements] so remaining in your hands unsold as aforesaid, that then you cause the same to be made of those goods and chattels, [or lands and tenements,] and of otiier goods and chattels, and for want thereof, then of the lands and tenements [or other lands and tenements] of the said C. D., in your bailwick ; and have you that money, &c. — [Conclude as in No. 1, Ante. 544. EXECUTIONS. 551 Habere Facias. No. 11. Capias ad Satisfaciendum. [Seal.] The State of Ohio, To the Sheriff' of — County, Grketing : We command you, that you lake C. D., if he shall be found in your bailwick, and him safely keep, so that you may have his body before our Court of Common Pleas, within and for the County of — , at their next Term, to satisfy A. B. of — dollars damages, and — dollars, costs of suit, which the said A. B., in our said Court of Com- mon Pleas, on the — day of — , A. D. — , by the Judgment [or De- cree] of the same Court, recovered against the said C. D., whereof the said C. D. is convicted, as appears to us of record ; together with the interest thereon from — , [date of the Judgment or Decree,] until paid ; and have you then there this writ. Witness, &c. Habere Facias.'' No. 12. Habere Facias with Fieri Facias for Damages and Costs. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting ; Whereas John Doc, on the — day of — A. D. — , in our Court of Common Picas within and for the County of — , by the judg- ment of the same Court, recovered against J. S. his term [or, terms,] then and yet to come of and in two messuages, two hundred acres of arable land, &c., [desci'ibing the premises as in the declaration or Judgment,] with the appurtenances, situate and being in your baili- wick, which E. F., on the — day of — A. D. — had demised to the said John Doe, to hold the same to the said John Doe, and his as- signs, from the — day of — then last past, for and during and unto the full end and term of — years from thence next ensuing, and fully to be complete and ended ; * by virtue of which said demise the (a) See note (a) Ante. 322, for to call for a return; in order that the general rules regulating this writ. It writ may be re-executed in case of is the practice, to some extent,in New forcible re-entry by the defendant; York, not to insert a return day, or 11 Wend. 182. 552 EXECUTIONS. Habere Facias. said John Doe entered into the said tenements with the appurtenan- ces, and was possessed thereof, until the said J. S., afterwards, to wit, on the — day of — A. D. — , witli force and arms, (See-, entered into the said tenements, with tiie appurtenances, which the said E. F. had demised to the said Jolm Doe, in manner and for the term aforesaid, which was not then nor is yet expired, and ejected the said John Doe from his said farm ; whereof the said J. S. is convicted, as appears to us of record : Therefore we command you, that without delay you cause the said John Doe to have the possession of his said term yet to come of and in the tenements aforesaid, with the appur- tenances ; and in what manner you shall have executed our command in this behalf, make appear to our said Court of Common Pleas at their next Term : We also command you, that of the goods and chat- tels, and for the want thereof, then of the lands and tenements of the said J. S., in your bailiwick, you cause to be made the sum of — dollars damages, and — dollars costs of suit, which the said John Doe, on the day and year first aforesaid, and by the judgment of the same Court, recovered against the said J. S.; whereof the said J. S. is also convicted, as appears to us of record ; with interest thereon from — , [date of the Judgment,] and have you the said moneys be- fore our said Court of Common Pleas, at their said next Term, to render, &c.; and have you then there this writ. Witness, &c. No. 13. The like, on a Double Demise. Proceed as in the last Pjxcedent to the (*) and then say — and also his term then and yet to come of and in two other messuages, &c., [describing the premises as be/ore,] which G. H., on, &c., had demised to the said Johii Doe, to hold the same to the said Johii Doe and his assigns, from, &c., for and during and until the full end and term of — years from then next ensuing, and fully to be complete and ended ; by virtue of which said several demises the said John Doe entered into the said several tenements, with the appurtenances, and was possessed thereof, until t!)e said J. S., afterwards, to wit, on, &c., with force and arms, entered into the said several tenements, with the appurtenances, which the said E. F. and G. II. had respec- tively demised to the said John Doe, in manner and for the several terms aforesaid, which were not then nor are yet expired, and ejected the said John Doe from his said several terms; whereof the said J. S. is convicted, as appears to us of record ; Therefore we command you, that without delay you cause the said John Doe to have the pos- session of his said several terms yet to come of and in the several tenements, with the appurtenances, &c. [Conclude as in the last Form. EXECUTIOXS. 553 In Detinue. Ix Detixue. [Seal.] The State of Ohio, To the Sherifl' of — County, Greeting : We command you that of the goods and chattels, and for want thereof, then of the lands and tenements of C D.. in your baihvick, you cause to be made the sum of — dollars, damages, and — dollars, costs of suit, which by the judgment of our Court of Common Pleas, within and for the County of — , at the — Term thereof, A. D. — , A. B. recovered against the said C. D., with interest thereon from — until paid, together with the further sum of — dollars, costs of in- crease, and also the costs that may accrue ; and have you the said moneys before our said Court of Common Pleas, at their next Term, to render, vtc. : We also command you, that you distrain the said C. D., bv all his lands and chattels in your baihvick, so that neither he, the said C. D., nor any one by him, do lay hands on the same, until you shall have another command from us in that behalf, and that you answer to us for the issues of the same, so that the said C. D. render to the said A. B. the said goods and chattels, that is to say, [here enumerate the goods, i^'c], or the sum of — for the value of the same ; whereof the said C, D. is convicted, as appears to us of record. And in what manner you shall have executed this part of our com- mand, make appear to the Judges of our said Court of Common Pleas on — ; and have you then there this writ. Witness, &,c. 70 554 CIRCUIT COURT — UNITED STATES. Circuit Court — United States. CIRCUIT COURT — UNITED STATES. Removal of Cases from State Courts to the Circuit Courts OF the United States.* If a suit be commenced in a State Court against an alien, or by a citizen of the State in which tlie suit is brought against a citizen of another State, and the matter in dispute exceed the value of five hundred dollars, exclusive of costs, and the defendant shall, at the time of entering his appearance in such State Court, file a petition for (a) If the State Court be satisfied that the sum in dispute exceeds five hundred dollars, exclusive of costs, and thereupon the case be removed to the Circuit Court, and the plaintiff declare for a larger sum, he cannot, by afterwards releasing part of his demand, and thereby reducing it be- low five hundred dollars, oust the Circuit Court of its jurisdiction ; 1 Peters, 220. If the defendant suffer the Term to which the suit is brought and at which he appeared, and the next succeeding Term, to pass over without filing his petition for remo- val, a petition afterward filed will not give the Circuit Court jurisdiction, although the State Court suffer the petition to be filed, as of the proper Term, when appearance was entered nunc pro tunc ; 1 Peters, 44. If a cause be improperly removed, it is the duty of the Circuit Court to re- mand it whence it came ; and on er- ror from the Circuit Court, the Su- preme Court will direct the cause to be so remanded ; 1 Peters, 44 ; 4 Crunch, 421. The defendant, after removing the cause to the Circuit Court and appearing there, cannot except to the jurisdiction of the Cir- cuit Court ; 2 Wheat. 221 ; 2 Dull. 396, If, in any action commenced in a State Court, the title of land be concerned, and the parties are citi- zens of the same State, and the mat- ter in dispute exceed the value of five hundred dollars, exclusive of costs, either party, before the trial, shall state to the Court, and make affidavit if required, that he claims, and shall rely upon a right or title to the land, under grant from a State other than that in which the suit is pending, and produce the original grant, or an ex- emplification thereof, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform the Court whether he claims a right or title to the land, under a grant from the State in which the suit is pending ; the said adverse party shall give such information, or otherwise not be al- lowed to plead such grant, or give it in evidence upon the trial ; and if he informs that he does claim under such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial to the next Circuit Court to be holden in such District, but if he is the de- fendant, he shall do it under the same regulations as in the before- mentioned case of the removal of a cause into such Court by an alien ; and neither party removing the cause, shall be allowed to plead, or give evi- dence of, any other title than that by him stated as aforesaid, as the ground of his claim ; 1 U. States Stat, at Large, 79, § 12. CIRCUIT COURT — UNITED STATES. 555 Circuit Court — United States. the removal of the cause for trial into the next Circuit Court, to be held in the District where the suit is pending, and offer sufficient surety for his entering, in such Court, on the first day of its session, copies of the process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requi- site therein, the State Court shall accept the surety, and proceed no farther in the cause ; and any bail, originally taken, shall be dis- charged ; and such copies being entered in the Circuit Court, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or es- tate of the defendant, by the original process, shall hold such goods or estate, to answer the final judgment, as by the laws of such State they would have been holden to answer final judgment, had it been rendered by the Court in which the suit commenced ; 1 U. States Stat, at Large, 79, *§> 12. Form of Petition. To the Honorable the Judges of the Court of Common Pleas of — County, in the State of Ohio: The Petition of C. D. of the County of — , in the State of Ken- tucky, respectfully represents, that on the — day of — , A. D. — , your Petitioner was arrested, at the said County of — , in said State of Ohio, by the Sheriff' of said county, upon a certain writ of Capias ad respondendum, issued by the Clerk of the said Court of Common Pleas, at the suit of A. B., in a plea of Assumpsit, to his damage one thousand dollars, as by him is alleged ; which writ bears date the — day of — , A. D. — : And your Petitioner further represents, that at the time of the issuing and service of said writ, your Petitioner was, and still is, a citizen of the said State of Kentucky, and the said A. B. was, and still is, a citizen of the State of Ohio ; and that the mat- ter in dispute, in said suit between your Petitioner and the said A. B., exceeds in value the sum of five hundred dollars, exclusive of costs : — Your Petitioner, therefore, prays that said suit may be removed for trial into the next Circuit Court of the United States, within and for the District of Ohio, according to the act of Congress in such case made and provided ; and your Petitioner now offers E. F. and G. H. as his sureties for entering, in said Circuit Court, on the first day of its next session, copies of the process against him, and also for his there appearing, and entering special bail, according to law. C. D. The Petition is filed with the Clerk, and the Court being satisfied, by affidavit or otherwise, of the truth of the matters set forth in the Petition, will order the cause to be removed. The form of the Order may be thus: 556 CIRCUIT COURT — UNITED STATES. Circuit Court — dnited States. Order of Removal. A— B— , 1 V. > In Assumpsit. C— D— , ) This day came the said C. D. and filed his Petition for the removal of this cause to the next Circuit Court of the United States, within and for the District of Ohio ; and the same having been heard and considered, and the Court being satisfied of the truth of the facts therein stated ; and the said C. D. oflering E. F. and G. H. his sure- ties for entering, in said Circuit Court, on the first day of its next session, copies of the process against him, and also for his there ap- pearing, and entering special hail, according to law, which sureties are accepted by the Court, It is therefore ordered that the said A. B. do no further prosecute his suit in this Court, and that the same may be removed into the said Circuit Court, according to the Act of Congress in such case made and provided. Form of Bond. Know all men by these presents, that we, C. D,, E. F. and G. H., are held and firmly bound unto A. B. in the penal sum of — dollars, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and adminis- trators. Sealed with our seals, and dated this — day of — , A. 1). The condition of the above obligation is such, that whereas the said A. B. hath this day applied to the Court of Common Pleas, within and for the County of — , in the State of Ohio, to remove into the Circuit Court of the United States, for the District of Ohio, a certain suit now pending in said Court of Common Pleas, wherein the said A. B. is plaintiff, and the said C. D. defendant : Now, if the said C. D. shall enter in said Circuit Court, on the first day of its next ses- sion, copies of the process against him in said suit, so pending as aforesaid in said Court of Common Pleas, and shall also there appear, and enter special bail, according to the Act of Congress in such case made and provided, then this obligation shall be void ; otherwise in full force and virtue in law. The Clerk, upon the application of the party, will then make out copies of the process and proceedings in the Court of Common Pleas, and which must be filed with the Clerk of the Circuit Court. The form may be thus : CIRCUIT COURT — UNITED STATES. 557 Circuit Court — United States. Form of Recokd. The State of Ohio, — County, ss. Be it remembered that, heretofore, to wit, on the — day of — , A. D. — , A. B. sued out of the Clerk's office of the Court of Common Pleas, within and for the said County of — , a writ of Capias ad re- spondendum against C. D., in the words and figures following, to wit: [Here set out the writ, verhatim.^ Upon which writ T. W., the Sheriff of said county, afterwards, to wit, on the — day of — , A. D. — , made the following return, to wit: [Here set out the return, ver- batim.^ And afterwards, to wit, on the — day of — , A. D. — , the said C. D. filed his Petition to remove this suit into the Circuit Court of the United States, for the District of Ohio, and which Petition is in the words and figures following, to wit : [Here set out the Peti- tion, verbatim.^ And afterwards, to wit, on, &c., the said Court of Common Pleas made the following order in the premises, to wit : — [Here set out the Order of removal, verbatim. The State of Ohio, — County, ss. I, F. W. Clerk of the Court of Common Pleas, within and for the said County of — , do hereby certify, that the foregoing is a true copy of the process and proceedings in the above case, as the same remain of record in my office. and Offi- F. W. j.^ -, In testimony whereof, I do hereto set my name ^ "^ cial Seal, this — day of — , A. D. — . Error from Supreme Court of the United States to State Courts. 1 United States Statutes at Large p. 85, <§i25.* Form of Writ ; Conkling's Pr. 503. The United States of America, To the Judges of the Supreme Court of the State of Ohio within and for the County of — Greeting: — Because in the record and proceedings, and also in the rendition of (a) In the case of the Com. Bank Howard, S17 ; the certificate entered of Cincinnati v. Buckingham ; 5 upon the record of the Supreme 558 CIRCUIT COURT — UNITED STATES. Circuit Court — United States. judgment in a plea, which is in the said Supreme Court of the said State of Ohio, before you, between A. B. and C. D., manifest error hath happened, to the great damage of the said — as by his com- plaint appears ; and it being fit that the error, if any hath been, should be duly corrected, and full and speedy justice done to the 2Xirties aforesaid i7i this behalf, you are hereby commanded, if judg- ment be therein given, that then, under your seal, distinctly and Court of the State, in pursuance of the act of Congress, was in the fol- lowing Form, but was held insuffi- cient because it did not appear by clear and necessary intendment that the constitutional question must have been raised and decided in order to induce the judgment ; " And upon the application of said plaintiffs in error, it is certified by the court here, that the said plaintiffs in error, on the trial and hearing of this case in said Supreme Court for Hamilton county, and also in this court, set up and relied upon the charter granted to them by the Gen- eral Assembly of the State of Ohio, on the Uth day of February, A. D. 1829; which charter contains the fol- lowing provision : — the fourth sec- tion provides, ' that said bank shall not at any time suspend or refuse payment, in gold or silver, of any of its notes, bills, or other obligations, due and payable, or of any moneys received on deposit ; and in case the officers of the same, in the usual banking hours, at the office of dis- count and deposit, shall refuse or de- lay payment in gold or silver of any note or bill of said bank there pre- sented for payment, or the payment of any money previously deposited therein, and there demanded by any person or persons entitled to receive the same, said bank shall be liable to pay as additional damages at the rate of twelve per centum per annum, on the amount thereof for the time du- ring which such payment shall be re- fused or delayed,' and insisted that, by the provisions above set forth, the said plaintiffs in error ought not to be held liable to pay for interest or dam- ages in case of suspension of specie payments, or upon demand and refu- sal of payment of their notes or bills, at a greater rate than at the rate of twelve per centum per annum, and the court here overruled the defence so set up, and held, that under and by virtue of the act of the General Assem- bly of the State of Ohio, passed Janu- ary 2Sth, 1824, and of tlie said char- ter of the plaintiffs in error, the defen- dants in error were entitled to the in- terest and additional damages allow- ed to the defendants in error by the Supreme Court for Hamilton county, as stated in the bill of exceptions. The first section of the said act of the General Assembly of the State of Ohio, of January 28th, 1824, is as follows ; — ' That in all actions brought against any bank or banker, whether of a public or private char- acter, to recover money due from such bank or banker, upon notes or bills by him or them issued, the plain- tiff may file his declaration for money had and received generally, and up- on trial may give in evidence to sup- port the action any notes or bills of such bank or banker which said plaintiff may hold at the time of trial, and may recover the amount thereof, with interest from the time the same shall have been presented for pay- ment, and payment thereof refused, or from the time that such bank or CIRCUIT COURT — UNITED STATES. 559 Circuit Court — United States. openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, to- gether with this writj so that you have the same at Washington, on the — day of — next, in the said Supreme Court, to be then and there held ; that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to cor- rect that error, what of right and according to the law and custom of the United States should be done. Witness, the Honorable — , Chief Justice of the said Supreme Court of the United States, this — day of — , in the year of our Lord — and of the Independence of the United States, the — . (To be signed by the Clerk of the Circuit Court.) Citation thereon. The United States of America, To — Greeting : You are hereby cited and admonished to be and appear at a Su- preme Court of the United States, to be holden at Washington on the second Monday in January next, pursuant to a writ of error, filed in the clerk's office of the Supreme Court of the State of Ohio with- in and for the county of — wherein — is plaintiff, and you are de- fendant in error, to show cause, if any there be, why the judgment banker shall have ceased or refused Ohio, of January 28th, 1834, as ap- to redeem his notes with good and plied to the said provisions of tliis lawful money of the United States.' charter, impaired the obligation there- And the eleventh section of which is of, and violated the provisions of the as follows: — ' That when any bank constitution of the United States; or banker shall commence and con- which claim so set up was overruled tinue to redeem their notes or bills by the court. And it is further cer- with lawful money, the interest on tified by the court here, that on the their notes or bills shall cease from trial and hearing of this case in this the commencement of such redemp- court, the validity of the said act of tion, by their giving six weeks' pre- the legislature before mentioned was vious notice, in some newspaper hav- drawn in question, on the ground ing a general circulation in the coun- that the same, as applied to the char- ty where such bank or banker trans- ter of the plaintiffs in error, impaired acts banking business, of the time the obligations thereof, and was re- they intend to redeem their notes or pugnant to the constitution of the bills with lawful money.' It was United States, and that the decision contended and claimed in this court, of this court was in favor of the va- by said plaintiffs in error, that the lidity of the said act of the legisla- said act of the General Assembly of ture as so applied." 560 PARTITION. Partition. in the said writ of error mentioned, should not be corrected, and speedy justice be done to the parties in that behalf. Witness, the Honorable — , Chief Justice, (or, one of the Justices,) of the said Supreme Court of the United States, this — day of — in the year of our Lord, — — . — , Chief Justice, (or, one of the Justices,) of the Supreme Court of the United States. PARTITION.'' By the Statute of 1831, all joint tenants, tenants in common, and coparceners, may be compelled to make or suffer Partition, upon ap- plication, by Petition, to the proper Court; Swanks Stat. 612. Form of Petition. To the Honorable the Judges of the Court of Common Pleas, within and for the County of — and State of Ohio i^ Your Petitioner, A. B., &c. of, &c., respectfully represents, that your Petitioner has a legal right to, and is seized in fee simple of •" one undivided sixth part of a certain tract or parcel of land, with the appurtenances, lying and being in the said county of — and bounded (a) For general Rules regulating ties where a part of the lands lie, at the Partition of real estate, and the the option of the demandant; Siva7i''s efTect thereof, &c., See Chancery, St., 613, §1. Title, Partition. (c) The Statute requires the na- (b) Where the lands all lie in one tiire of the title to be set forth in the county, the application must be made Petition, and the Court is authorized to the Court of Common Pleas of such to order Partition only where it ap- County ; but when they lie in two or pears that the demandant has a legal more Counties, application may be right in the estate ; Sloan's Stat. made to the Supreme Court, when 614, § 2. If the demandant has that Court shall be in session, in any only an equitable interest, he may one of the Counties where a part of obtain Partition in Equity, and at the the lands he ; or to the Court of Com- same time call in the legal title. See men Pleas, in any one of the Coun- Chancery, Title, Partition. PARTITION. 561 Partition. and described as follows, to wit, [giving as particular description as in deeds of conveyance] : And your petitioner further represents, that E. F. &,c.,'* of, &c., are coparceners [or tenants in common as the case may be] with your Petitioner in the said premises, and that S. T. of, &c., widow of T. T. lately deceased, and whom your Pe- titioner prays may be made a defendant to this petition, is entitled to dower in the same premises.'' Your Petitioner therefore, desiring to hold his said interest in severalty, prays that partition of said lands and tenements may be made, [or that your Petitionefs interest in said lands and tenements may be set off' to him in severalty;] and that the dower of the said S. T. may be assigned in said premises ; or if it shall appear that partition of said lands and tenements cannot without manifest injury be made ; then that the same may be sold, or other proper order taken in that behalf, pursuant to the Statute in such case made and provided. By C. S., his Attorney. The Petition is filed with the Clerk of the proper Court, and No- tice of the pendency, and demand thereof, must be published in some newspaper in general circulation, in each County where the lands lie, or personally served on each person concerned, his agent or attorney, at least forty days prior to the Term at which the application for the order of partition is to be made ; Sivan's St. 614, §3. Form of Notice. C. D., E. F. and G. H. will take Notice that a petition was filed against them on the — day of — in the Court of — by A. B. and is now pending, wherein the said A. B. demands Partition of the fol- lowing real estate [Description] and that at the next Term of said Court application will be made by the said A. B. for an order that Partition may be made of said premises. A. B. Dated, &c. (a) The nctme and place of rest- with certain other persons whose dence, of each joint tenant, and ten- names and place of residence are to ant in common, or co-parcener, must your petitioner unknown.-' be stated in the petition, if known to the demandant ; Sivan's St. 614, §2. (b) The widow must be made par- If unknown, it is proper to allege it ty in all cases, unless her dower has in the petition, thus : " That your been previously assigned ; Swan's petitioner is tenant in common, &c. St. 616, §12. 71 562 PARTITION. Partition. Affidavit of Puhlication. T. C. being duly sworn says, that a copy of the above notice was published on the — day of — A. D. — in a newspaper called — and that said newspaper was then in general circulation in the coun- ty of — T. C. Sworn, &-C. Affidavit of Peksonal Service, T. C. being duly sworn, says, that on — he personally gave C. D., E. F. and G. II. [or to W. X., the agent or attorney of C. D., E. F. and G. H.,] a true copy of the above notice.'' T. C. Sworn to, &,c. Of Defence. No specific mode of defence to a Petition for Partition, is pointed out by the Statute, but it is customary to defend substantially as in Chancery. See Answer, 8fc. in Chancery. Form of order for Partition. This cause came on to be heard upon the petition, answer, &c., and was argued by counsel ; on consideration whereof, It is order- ed [or, on motion to the Court by Mr. O., counsel for the plaintiff', It is ordered] that, by the oaths of T. O., T. P. and T. U., one full and equal third part of the lands, in the said petition described, be assigned and set off to the said T. S. as her dower estate,*" and that, (a) The notice, if personal, must in one or more of the counties, or in be given to each and every person one or more of the tracts ; or they concerned, their agent or attorney ; may assign it in such a manner, that Swan's Stat. 014, § 3. it may be contained in the share or shares aparted to one or more of the (b) The dower is to be assigned proprietors, and such share or shares by the Commissioners ; and in case may be made larger, as the same the estate is situated in tAvo or more may be less valuable by reason of counties, or two or more tracts, the such dower therein ; or the Commis- Commissioners may assign the dower sioners may make partition of the PARTITION. 563 Partition. by the like oaths of the same T. O., T. P. and T. U., partition be made of said lands, subject to said dower estate, in the following pro- portions, to wit: To the said A. B. one eqnoX foiiiih part, to the said C. D. one equal fourth part, to the said E. F. one eqnsd fourth part, and to the said G. U. one equal fourth part; and It is further ORDERED, that a writ of partition issue to the Sheriff of — Count)','^ commanding him to cause said dower to be assigned, and said parti- tion to be made accordingly.'' Form of writ of Partition. [Seal.] The State of Ohio, To the Sheriff' of — County,"^ Greeting: We command you, that without delay, by the oaths of T. O., T. P. and T. U,, you cause T. S., widow of T. T., late of, &c., deceas- ed, to be endowed of one full third part of the following real estate, situate, &c., [describe the lands as in the Petition] ; and also that, in like manner, and by the like oaths of the same T. O., T. P. and T. U., you cause partition to be made of the same lands, subject to said dower estate, among the following persons, and in the following proportions, to wit : To A. B. one equal fourth part, to C. D. one equal fourth part, to E. F. one equal fourth part, and to G. H. one equal fourth part, in pursuance of an order lately made in our said Court of Common Pleas, within and for the said County of — , in a certain Petition for Partition, wherein A. B. is Petitioner, and C. D., &,c., are defendants ; and that your proceedings in the premises you residue of the estate, after having as- the order for partition or the writ, signed the dower, leaving that part of the estate assigned for dower, to be (a) If the lands lie in more than partitioned after the death of the ten- one county, the writ may be directed ant in dower; Swanks Slat. 616, to the Sheriff of either county; § 13. The assignment of dower, and Swan's Slat. 614, § 4. the partition of the estate, after the Court have fixed upon the proportion (b) The Court, in their discretion, to which each proprietor is entitled, may order the share of the demand- is entirely a matter of discretion with ant only to be set off, and leave the the Commissioners. Whether that residue of the estate undivided, discretion has been properly exercis- ed or not, may be called in question (c) The Sheriff named in the Or- on the return of their proceedings, der. but cannot be controlled, either by 564 PARTITION. Partition. distinctly certify, under your hand, to our Court of Common Pleas, within and for the said County of — , together with this writ. Witness, T. C. Clerk of our said Court of Common Pleas, this — day of — A. D. — . T. C. Clerk. Report of Commissioners on Partition made. Partition — Com. Pleas — County. We, the Commissioners, appointed in this cause to assign dower to T. S., widow of T. T., late of, &c., deceased, in the following real estate, situate, &.C., [describe the lands as in the writ,] and also to make partition of the same lands, subject to said dower estate, be- tween A. B., C. D., E. F. and G. H., having been duly sworn,-' upon actual view of the premises, do assign to the said T. S., for her dower estate, so much of said lands as is contained within the follow- ing limits : [Here set out the description by metes and bounds.] (*) And we do also set oft^ and assign to the said A. B. in severalty, for his share of said lands, so much thereof as is contained within the following limits : [Here set out the description by metes and bounds.] And we do also set off and assign to the said C. D. in severalty, &c. [Proceed in the same manner to assign to each his share. Given under our hands, this — day of — , A. D. — . (Signed.) If, in the opinion of the Commissioners, partition of the estate can- not be made, without manifest injury, it is their duty to report the same to the Court, and to make out and return a just valuation of the of the estate ; Swan's Stat. 615, <§v8. The report of such case inay be in the following form : Report of Valuation by Commissioners. Proceed as in the last Precedent to the (*) — And upon further view of the premises, we are of opinion that said lands cannot be di- (a) The oath may be administered whom the writ isdirected; S/van^s by the Sheriff", or other Officer to Stat . 618, § 20. PARTITION. 565 Partition. vided without manifest injury to the same, and thereupon we do esti- mate the value thereof, subject to said dower estate, at — dollars. Given under our hands, this — day of — , A. D. — . (Signed.) The report of the Commissioners is attached to the writ which is returned by the Sheriff, to the Court, indorsed thus : Sheriff's Return. I have executed this writ, by the oaths of the within named Com- missioners, whose report is herewith returned. A. T. Sheriff' of — Counttj. Dated, &c. No. 1. Report of Partition confirmed. On Motion to the Court by Mr. O., counsel for the Petitioner, and upon producing the proceedings of the Sheriff, and also the report and proceedings of tiie Commissioners hereinbefore appointed, and the same being examined. It is ordered that said proceedings and report be and the same are hereby approved and confirmed, and that the said parties hold in severalty the shares set off and assigned to each, respectively, by the said Commissioners ; and It is further ORDERED, that the costs and expenses of this suit, taxed to — dollars, be paid within — days, by the parties, in the following proportions, to wit, &C.,'' and in default thereof that execution issue therefor. Upon the return of the Commissioners, that Partition cannot be made without manifest injury to the estate, any one or more of the parties may elect to take the estate, at the valuation of the Commis- sioners, upon making payment to the other parties ; and the Sheriff is authorized to make a deed accordingly; Swanks Stat. 615, *^8. (a) The costs and expenses are to and the benefit each may derive from be taxed according to equity, having the partition ; Swan's Stat. 617, regard to the interest of the parties, § 16. 566 PARTITION. Partition. No. 2. Order confirming an Election by one of the Parties, AND directing THE SlIERIFF TO MAKE DeED. On motion to the Court by Mr. O., counsel for the Petitioner, and upon producing the proceedings of the Sheriff, and the report and proceedings of the Commissioners hereinbefore appointed, and the same being examined, It is ordered that said proceedings and re- port be and the same are hereby approved and confirmed ; and there- upon the said A. B. electing to take said estate, at the said valuation of said Commissioners, and having paid to the said C. D., E. F. and G. II. their respective proportions of the appraised value thereof, the said estate is hereby adjudged to the said A. B., and the said Sheriff is ordered to execute a deed in fee simple for the same to the said A. B., according to the Statute in such case made and provided ; and it is further ordered, &c. [ Conclude as in No. 1 . Form of Sheriff's Deed, to Party electing to take the Estate. To all to whom these presents shall come, Greeting : Whereas on the — day of — , A. D. — , A. B. of, &c. filed his certain Petition in the Coui't of Common Pleas, within and for the County of — , against C. D., E. F. and G. H., demanding partition of certain real estate, hereinafter described ; and whereas such proceed- ings were had upon said Petition, that the Commissioners, appointed by said Court to make partition of said estate, made report, that par- tition of the same could not be made without manifest injury, and that the value thereof was — dollars ; and whereas, at the — Term of said Court, A. D. — , the said report of said Commissioners was approved and confirmed by said Court, and the said A. B. electing to take said estate, at the valuation of said Commissioners, and having paid to the said C. D., E. F. and G. H. their respective proportions of the appraised value thereof, the said Court did adjudge said estate to the said A. B., and did order the said Sheriff to execute a deed in fee simple for the same to the said A. B. ; all which will more fully appear, reference being had to the records of said Court : Now, therefore, I, W. X. the Sheriff aforesaid, in consideration of the pre- mises, and by virtue of the powers in me vested by law, do, by these presents, grant, bargain, alien, and convey unto the said A. B., and unto his heirs and assigns forever, the said real estate, so adjudged as aforesaid to the said A. B., and which is bounded and described as PARTITION. 567 Partition. follows, to wit, [describe the lands as in the Petition,] with all and singular the appurtenances ; to have, to hold the said premises to him, the said A. B., and to his heirs and assigns forever. In testimony whereof, I hereto set my hand and seal, as Sheriff as aforesaid, this — day of — , A. D. — . W. X. Sheriff of — County. Executed and delivered in our presence : T. X. M. X. The State of Ohio, — County, ss. Be it remembered, that on this — day of — A. D. — before me one of the Justices of the Peace within and for the county aforesaid, personally came W. X. and acknowledged the foregoing instrument to be his free and voluntary act and deed as Sheriff" of said county of — S. L. Jus. Peace. If Partition cannot be made, and neither of the parties elect to take the estate, the Court, on motion of the demandant, will order the estate to be sold by the Sheriff", in the same manner as lands are sold upon judgments as law; Swanks St. 615, §9. Order for sale. On motion to the Court by Mr. O., counsel for the Petitioner, and upon producing the proceedings of the Sheriff^, and the report and proceedings of the Commissioners hereinbefore appointed, and the same being examined. It is ordered that said proceedings and re- port be, and the same are hereby approved and confirmed ; and thereupon neither of the parties electing to take said estate, at the valuation thereof, as returned by said Commissioners ; on motion of the Petitioner, It is ordered that said estate be sold at public auc- tion, by the Sheriff" of said county of — according to the Statute in such case made and provided. The Sheriff", upon receiving the proper writ, will proceed to adver- tise and sell, as upon judgments at law, and return his proceedings accordingly.'^ (a) The sale is to be had at the erwise ordered by the Court ; Ohio door of the Court House unless oth- Stat., Vol, 45, p. 59. 568 PARTITION. Partition. Writ. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : In pursuance of an order of our Court of Common Pleas within and for the County of — at the — Term thereof, A. D. — in a cer- tain Petition for Partition now pending in said Court, wherein A. B. &,c., is petitioner, and C. D., &c., are defendants, we command you that without delay you proceed to sell at public auction the lands and tenements in the said Petition described to wit : [Describing the lands as in the Petition;] and that your proceedings in the premises you make known to our said Court of Common Pleas, at their next Term ; and have you then there this writ. Witness, A. C. Clerk of our said Court of Common Pleas, at — this — day of — A. D. — . A. C, Clerk, Confirmation of Sheriff's Sale. On motion to the Court by Mr. O., counsel for the Petitioner, and upon producing the proceedings of the Sheriff, and the sale of the premises by him made in pursuance of a former order of the Court, and the same being examined and found by the Court in all respects in due form of law. It is ordered, that said proceedings and sale be and the same are hereby approved and confirmed, and that the said Sheriff execute and deliver to the said purchaser a deed in fee simple for the said lands and tenements by him sold as aforesaid ; And It is further ordered that the costs and expenses of this suit be paid out of the said moneys in the hands of the Sheriff, in the following proportions, to wit : A. B., one sixth, &c., amounting to — dollars ; and that the said Sheriff distribute the residue of said mon- eys between the said parties in the following proportions, to wit: To A. B. — dollars ; to C. D. — dollars, &c. Form of Sheriff's deed to purchaser. To all to whom these presents shall come, Greeting : Whereas on the — day of — A. D. — A. B. of, &c. filed his cer- tain petition in the Court of Common Pleas within and for the County of — against E. F., G. H. and C. D., demanding partition of HABEAS CORPUS. 569 Habeas Corpus. certain real estate hereinafter described ; and whereas such procee- dings were had upon said petition, that at the — term of said Court, A. D. — the Sheriff of said County of — was ordered to sell said real estate at public auction, whereupon the said Sheriff in pursuance of said order having caused the same to be duly advertised, did, on the — day of — A. D. — sell said real estate at public auction to T. S. for the sum of — dollars, which sale was afterwards, at the — term of said Court, A. D. — approved and confirmed, and the said Sheriff order- ed to execute and deliver a deed in fee simple, to the said purchaser for said real estate ; all which will more fully appear reference being had to the records of said Court. Now, therefore, I, W. X., SherifT as aforesaid, in consideration of the premises, and by virtue of the powers in me vested by law, do by these presents grant, bargain, alien and convey, unto the said T. S. and unto his heirs and assigns forever, the said real estate, so sold as aforesaid, and which is bounded and described as follows, to wit : [Desc7'ibe the land as in the peti- tion,] with all and singular the appurtenances. To have and To hold the said premises to him the said A. B. and to his heirs and assigns forever. In testimony whereof, [Conclude as in Sheriff"' s deed Ante. 566.] HABEAS CORPUS =^ Under the Act of 1811, all persons deprived of their liberty, are entitled to the benefit of the writ of Habeas Corpus, except only in two cases: 1st, Where one is actually convicted of some crime or offence for which he stands committed ; and 2d, Where one is com-' mitted for treason or felony, the punishment whereof is capital, and the crime is plainly and specially expressed in the warrant of com- mitment. Any otlier person, if confined in jail, or otherwise deprived of his liberty, under pretence of legal authority, is entitled to a Ha- beas Corpus on application, by himself, or by any one in his behalf, to the proper authority, and producing a copy of his commitment or other cause of detention. Or if such person be imprisoned or de- tained without any legal authority, he is entitled to the writ upon making the same appear by oath or affirmation ; Swan's Stat. 433, ^1. (a) For general Rules regulating 129, 130; 3 Bac. Mg. 3; 3 Hoiv- writs of Habeas Corpus ; See 3 Pet. ard, 103. 302 ; 2 Swanston, 1 ; 3 Bl. Comm. 72 570 HABEAS CORPUS. Habeas Corpus. The Act of 1811, as amended by the Act of 1847, (Ohio Stat, vol. 45, p. 45,) points out two modes of proceeding ; which are here separately considered : I. Where the detention is by a Sheriff, Deputy Sheriff, Coroner, Jai- lor, Constable or Marshal of the State ; or a Marshal, deputy Mar- shal, or other like Officer of the Courts of the United States. Form of Application. To A. B. one of the Judges, &c.'' C. D, of, (fcc.,*" respectfully represents, that he is imprisoned or de- tained by E. F. without any legal authority f He therefore prays that a writ of Habeas Corpus may be issued to the said E. F.; and that he may be thereupon discharged from his said imprisonment. The above named C. D., being duly sworn, says that the matters and things set forth in the above application, are true. C. D. Sworn to, and subscribed, before me. this — day of — A. D. — T. X., Jus. Peace. (a) The application may be made to any Judge of the Supreme Court, or any President or Associate Judge of the Court of Common Pleas ; Swan's Stat. 433, §1. The Supreme Court, or Court of Common Pleas, in term time, may grant the writ for the purpose of an enquiry into the cause of commitment ; Ibid, 222, §3,4. (b) The application may be made by the party himself, or by any oth- er person in his behalf; Id. §1. (c) If the applicant be imprisoned, &c., under legal process, a copy of the commitment, or cause of deten- tion, is to be produced to the Judge ; and in such case an affidavit is unne- cessary ; Jd. The Form may be as follows : "To, &c., — C. D. of, &c. respectfully represents, that he is i7n- prisoned by E. F. without any legal authority, under color of a certain pretended commitment, [or other cause of detention,'] of which the following is a true copy, [to be set out verbatim f] The said C. D. therefore prays, «fec. The person having the prisoner in custody may be designated by his name of office, if he have any, or by his own name; or if both such names are unknown or uncertain, he may be described by an assumed appellation ; and any one served with the writ is to be deemed the person intended ; And the per- son to be produced must be designa- ted by name, if known, and if that is unknown or uncertain, then he may be described in any other way so as to make known who is inten- ded ; Ohio Stat., Vol. 45, p. 46, §4, 5. A writ directed in the disjunc- tive, to the Sheriff or Jailor, is bad ; 3 Bac. Mg. 10 Salk. 350. HABEAS CORPUS. 571 Habeas Corpus. The Allowance is indorsed on the back of the Application, thus : Allowance of Habeas Corpus by single Judge. Let a writ of Habeas Corpus issue on the within Application, re- turnable before me at — on the — day of — instant, at ten o'clock, A. M. A. B., Judge, ^c. To the Clerk of — Common Pleas."" Dated, &c. If the writ be allowed in term time, the entry is made upon the Journal thus : Allowance of Habeas Corpus in term time. C. D. this day came into Court and filed his application for a writ of Habeas Corpus ; on consideration whereof, It is ordered, that a writ of Habeas Corpus issue to E. F. of, 7. Court, he may adjourn the case into the case, for final hearing, making Court, for final decision ; Ohio Stat., such order for the safe keeping of Vol. 45, p. 46, §3. See 3 Com. the person imprisoned or detained, as Dig. 4b6. Upon good cause shown, the case may require ; Jd. 9. the Court, or Judge, may conliuue HABEAS CORPUS. 573 Habeas Corpus. Form of Return. The within named E. F. hereby certifies to the ivithin named A. B. or, to the within named Supreme Court, or. Court of Common Pleas, that the within named C. D. was taken into the custody of the said E. F. on the — day of — A. D. — and is now detained in his custody, by virtue of, &c. [Here set forth, specifically, the cause of detention, such as legal process, guardianship under a ivill, or by appointment of Court, right of parent, &fc. (") E. F. Dated, &c. On the return of the writ, if it appears that the person detained is in custody under any warrant or commitment in pursuance of law, the Return is to be considered prima facie evidence of the cause of de- tention ; otherwise the Return is to be considered only as a plea, and the party claiming the custody of the applicant must prove the facts therein set forth ; Ohio Stat. vol. 45, p. 47, <§> 8. The Proceedings upon Habeas Corpus are to be recorded by the Clerk of the proper Court, and may be reviewed on error and certio- rari ; Id. ^\0. (a) Another Form. To the Judges of the Court [or the Judge] ivithin named. I hereby certify that before the coming of this writ, by virtue of ano- ther writ before directed to me, a copy of which annexed to this writ, I transmit to you ; C. D. with- m named was in the Jail at — , and there lay sick and infirm, so that I cannot, for fear of his death, remove him. Therefore, I cannot have the body of the said CD. at the day and place within contained. J. S. Sheri^. Another. To, &c. I hereby certify, that before the coming of this writ to me, C. D. within named, was taken in another place, and committed to the Jail in the said county of — , by vir- tue of a certain other writ before to me directed, a copy of which annex- ed to this writ I transmit to you ; Nevertheless, I have the body of the said C. D, before you at the day and place within mentioned, as is to me within commanded. Another. To, &c. I hereby certify, that be- fore the coming of this writ to me directed; C. D. in this writ named, was committed into my custody by a certain mittimus from J. S. a Jus- tice of the Peace within and for the County of — aforesaid, the tenor of which said mittimus follows : [Set out the mittimus verbatim~\ ; and this is the cause of the taking and detention of the aforesaid C. D. un- der my custody. Yet the body of him the said C. D, I have before you as this writ requires. W, C. Sheriff. .^74 HABEAS CORPUS. Habeas (/Orpus. Order for Discharge, by Single Judge. In the matter of C. D. upon Habeas Corpus. Be it remembered, that on the — day of — , A. D. — , at — , in obedience to the command of a certain writ of Habeas Corpus, lately allowed by A. B., one of the Judges, 8fC., on the application of C. D. of, &.C., and issued from the Clerk's Office of the Court of — , on the — day of — last past, E. F. of, dec, to whom the said writ was di- rected, appeared before me, having with him the body of the said C. D., together with said writ and the day and cause of his the said C. D.'s caption and detention, as by said writ is commanded ; and there- upon, the proofs and allegations of the parties being heard, and fully understood, and it appearing that the said C. D. is illegally detained under the custody of the said E. F. : Therefore, It is ordered that the said C. D. be and he is hereby discharged out of the custody of the said E. F. and that he go hence thereof without day, &c.^ The like. By the Court. In the matter of C. D. upon Habeas Corpus. This day E. F., to whom a writ of Habeas Corpus was directed on Friday last, upon the application of C. D. of, &c., appeared in open Court, having with him the body of the said C. D., together with said writ and the day and cause of his the said C. D.'s caption and deten- tion, as by said writ is commanded ; and thereupon, the proofs and allegations of the parties being heard, and fully understood, (*) and (a) On the appearance of the par- him to the father; See 3 Bac. Mg. ty, the Court, in general, will only 15; 1 Burr. iiHC}; '.i Burr. 1484. If t>ee that he is not under any illegal the party be recommitted, say : " // restraint ; but in the case of a young is ordered that the said C. D. be and lady, the Court will order the tipstaff he hereby is recommitted to the cus- to wait upon her home to her guar- tody of the said E. IV If let to dian ; 2. The person detaining the applicant sets forth the cause of caption and detention as is required in other cases ; See Ante. 573. 576 HABEAS CORPUS. Habeas Corpus. Habeas Corpus ad Testificandum. Affidavit, — Common Pleas. The above named A. B. makes oath and says, that E. F. now a prisoner in custody of the Sheriff of — [or as the case may 6e] is and will be a material witness for this deponent, at the trial of this cause : And this deponent further says, that he is advised and verily believes, that he cannot safely proceed to the trial thereof, without the testimony of the said E. F., and that he, the said E. F., is ready and willing to attend as a witness at the trial of the said cause. A. B. Sworn to, &c. Writ of Habeas Corpus ad testificandum. [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : We command you, that you have the body of E. F. detained in our Jail, under your custody, as it is said, under safe and secure conduct, before the Judges of our Court of Common Pleas, within and for the County of — on the — day of — next, by ten of the clock in the fore- noon of the same day, there to testify the truth according to his knowledge, in a certain cause now depending in said Court of Com- mon Pleas, and then and there to be tried between A. B. plaintiff, and C. D. defendant, on the part of the said A. B., [or C. D.] ; and im- mediately after the said E. F. shall then and there have given his tes- timony before our said Judges, that you return liim, the said E. F., to our said Jail, under safe and secure conduct : And have you then there this writ. Witness, 6lc. HABEAS CORPUS. 577 Habeas Corpus. Habeas Corpora juratorum.* [Seal.] The State of Ohio, To the Sheriff of — County, Greeting : We command you, that you have the bodies of six or more of the first twelve Jurors named in the pannel to this writ annexed, being Jurors in our Court of Common Pleas, within and for the County of — between A. B. plaintiff, and C. D. defendant, in a plea of tres- pass, fyc, at — [the place named in the Order,] on Saturday, the sixth day of July next, at eleven of the clock in the forenoon of the same day, and from thence proceed to view the place in question, in the presence of J. S. on the part of the plaintiff, and J. N. on the part of the defendant, appointed by our said Court of Common Pleas, to show the said place to such of the said Jurors as shall come to view the same ; and in what manner you shall have executed this our com- mand, make appear to our said Court of Common Pleas on — : And that you have then there this writ. Witness, &c. (a) Where the Court order the ju- issued to the Sheriff; Swan's Stat. ry to have a view, a Habeas Corpora 494, § 1 9. For the Form of a dis- juratorum, or a distringas, is to be tringas. See Select Writs, Post. 73 578 OATHS. 0«thB. OATHS. ^ Oath to Foreman of Grand Jury. You do solemnly swear or affirm, that, saving yourself and fellow Jurors, you, as Foreman of this grand inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service ; the counsel of the State, your own and your fel- lows, you shall keep secret, unless called on in a Court of justice to make disclosures ; you shall present no person through malice, hatred or ill will, nor shall you leave any person unpresented through fear, favor or affection, or for any reward or hope thereof; but in all your presentments, you shall present the truth, the whole truth, and noth- ing but the truth, according to the best of your skill and understand- ing ; and this you do, as you will answer to God at the Great Day, or, lender the Pains and Penalties of perjury. The like to the other Grand Jurors. You and each of you do solemnly swear, or affirm, that the same oath which A. B,, your foreman, hath now taken, before you, on his part, you and each of you shall well and truly observe and keep on your respective parts : and this you do, as you shall answer to God at the Great Day, or, under the Pains and Penalties of perjury. Oath of Executors. You do solemnly swear in the presence of Almighty God, the Searcher of all hearts, or, upon the Holy Evangelists of Almighty God, or, you do solemnly declare and affirm, that this writing con- tains as far as you know or believe, the true last will and testament of A. B., and that you will well and truly perform the same, by paying first the debts, and then the legacies contained in said will, as far as (a) Oaths are administered accord- breast; 6 Mass. 263. A Jew had ing to the ceremonies of the religion his trial "/)cr Mediatatem Linguae, of the place where taken ; Omichnnd viz. .huhvorum, and they were sworn V. Baker, Willes' Rep. 538. In on the Five Books of Moses, held in France, the oath is administered to a their arms, and by the Name of the layman by raising the right hand; to God of Israel, who is merciful" ; 21 a clergyman by placing it on his Vin. Mg, 186. OATHS. 579 Oaths. his goods, chattels, credits and effects will extend, and the law charge you, and that you will make a true and perfect inventory of all the said goods, chattels, credits and effects, and also a just account thereof as required by law ; and this you do, as you shall answer to God at the Gi^eat Day, or, under the Pains and Penalties of per jury. Oath of Administrators. You do solemnly swear, in the presence of Almighty God, the Searcher of all hearts, or, upon tiie Holy Evangelists of Almighty God, or, or you do solemnly declare or affirm, that A. B., deceased, died without any will, as far as you know or believe, and that you will well and truly administer all and singular the goods, chattels, credits and effects of the said deceased, and pay his debts as far. as his goods, chattels, credits and effects, will extend, and the law charge you, and that you will make a true and perfect inventory of all the goods, chattels, credits and effects, and also a just account thereof as required by law, and this you do, as you shall answer to God at the Great Day, or, under the Pains and Penalties of per- jury. Oath of Petit Jurors. You and each of you do solemnly swear, in the presence of Al- mighty God, the Searcher of all hearts, or, upon the Holy Evange- lists of Almighty God, or, you and each of you do solemnly declare and affirm, that you will well and truly try the issue joined between the parties in this cause, wherein A. B., is Plaintiff and C. D. Defen- dant, and a true verdict give according to the evidence ; unless with- drawn by the parties or dismissed by the Court ; and this you do, as you shall answer to God at the Great Day, or, under the Pains and Penalties of perjury. Oath of witnesses before Jury. You and each of you do solemnly swear, in the presence of Al- mighty God, the Searcher of all hearts, or, upon the Holy Evange- lists of Almighty God, or, you and each of you do solemnly declare and affirm, that you will testify the truth the whole truth and nothing but the truth, in the cause now pending here before the jury, wherein A. B., is Plaintiff, and C. D., Defendant: and this you do, as you shall answer to God, at the Great Day, or, under the Pains and Penalties of perjury. 580 OATHS. Oaths. The like befoke the Court. You and each of you do solemnly swear, in the presence of Al- mighty God, the Searcher of all hearts, 07', upon the Holy Evange- lists of Almighty God, oj\ you and each of you do solemnly declare and affirm, that you will testify the truth, the whole truth and nothing but the truth touching the matters now under examination before the Court: and this you do, as you shall answer to God, at the Great Day, or, under the Pains and Penalties of perjury. The like, on a Commission to take Testimony. You, and each of you, &-c., that you will true answer make to all such questions as shall be demanded of you, upon the Interrogatories now produced and shown to you, without favor or affectien to either party ; and therein you shall speak the truth and nothing but the truth : And this you do, &c. Constable's Oath to keep Jury together. You do solemnly swear, in the presence of Almighty God, the Searcher of all hearts, or, upon the Holy Evangelists of Almighty God, or, you do solemnly declare and affirm that you will, to the ut- most of your ability, keep every person sworn on this jury together, in some private or convenient place, without meat or drink, except water ; unless by order of the Court ; you will not sutler any person to speak to them, nor speak to them yourself, unless by order of the Court, except it be to ask them whether they have agreed on their verdict, until they have agreed on their verdict ; and this you do, as you shall answer to God at the Great Day, or, under the Pains and Penalties of perjury. Oath for Appraisers of Lands on Execution. You, A. B., C. D., and E. F., and each of you do swear, that all partiality, prejudice, and other sinister respects laid aside, you will ap- praise the lands now presented to you according to the present true and just value thereof; and that you will do therein according to your best judgment and conscience ; So help you God. OATHS. 581 Oathi. An Oath of Office. You, A. B., do solemnly swear or affirm that you will support the Constitution of the United States, and of the State of Ohio ; and that you will faithfully execute the office of — for the — , and will therein do equal justice to all men, to the best of your judgment and abilities, according to law : So help you God, or, (if an Affirmation) And this you do under the Pains and Penalties of perjury. Oath for a Judge.* You, A. B., do solemnly swear, or, affirm, that you will support the Constitution of the United States, and of the State of Ohio ; that you will administer justice without respect to persons, and do equal right to the poor and to the rich ; and that you will faithfully and impartially discharge and perform all the duties incumbent on you as a Judge of the Supreme Court of the said State of Ohio, ac- cording to the best of your abilities and understanding, and agreeably to the Constitution and Laws of the same : So help you God, or, And this you do under the Pains and Penalties of perjury. Oath for Clerk of Court. You, A. B., do solemnly swear, or, affirm, that you will support the Constitution of the United States and of the State of Ohio; that you will truly and faithfully enter and record all the orders, decrees, judgments and proceedings of the Court of — , and faithfully and impartially discharge and perform all the duties of your office as Clerk of the said Court of — , according to the best of your abilities and understanding : So help you God, or, (if an Affirmation,) And this you do under the Pains and Penalties of perjury. (a) To be indorsed on the Commission ; Swan's Stat. 323, §f 582 SELECT WRITS. Select Writs. SELECT WRITS.* Distringas.^ The State of Ohio, To the Sheriff of — County, Greeting : We command you that you distrain six or more of the first twelve jurors named in the pannel to this writ annexed, being jurors in our Court of Common Picas within and for the County of — , between A. B., plaintiff, and C. D., defendant, in a plea of trespass fyc, by all their lands and chattels, in your bailwick, so that neither they, nor any one by them, do lay hands on the same, until you shall have another command from us in that behalf; and that you answer to us for the issues of the same, so that you have their bodies to take a view of the place in question, on the — day of — , and that the same jurors meet on the same day, at the house of — , in your County, and proceed from thence to view the said place, in the presence of L S., on the part of the plaintiff, and J. W., on the part of the defendant, appointed by our said Court of Common Pleas, to show the said place to such of the said jurors as shall come to view the same ; and in what manner you shall have executed this our command, make ap- pear to our said Court of Common Pleas on — , and have yQu then there this writ. Witness, &c. subpcena for witnesses. [Seal.] The State of Ohio, To T. R. &c. [names of witiiesses] *" Greeting : We command and strictly enjoin you and each of you, that laying aside all manner of businesses and excuses whatsoever, you and each of you be and appear in your proper persons before the Judges of our Court of Common Pleas, within and for the said County of — , at (a) The Act of 1831, organizing pora, is to be issued when a view is Judicial Courts, authorizes the issu- to be had by a Jury ; Swaii's Stat. ing of all writs necessary to enforce 494, §19; See Habeas Corpus, the due administration of right and Ante. 577. justice throughout tlie State, agreea- bly to the usages and principles of (c) The names of all the witnes- law ; Swanks Slat. 222, § 3, 4. ses are to be inserted in one subpiu- na — Swaii's Stat. 651, §1. (b) A Distringas, or Habeas Cor- SELECT WRITS. 583 Select Writs. the Court House in said County, on the 2\st day of September next, at 10 o'clock forenoon,'' then and there to testify what you and each of you may know, in a certain action in said Court pending, wherein A. B. is plaintiff and C. D. defendant: and this do you un- der the penalty of the law. Witness, &c. Venire Facias for Grand Jurors. [Seal.] The State of Ohio, To the Sheriff of — County — Greeting : We command you, that without delay you summons A. B. &c. [names of Grand Jurors] to be and appear before our Court of Common Pleas, within and for the County of — , at the Court House in said County, on the — day of — at ten o'clock forenoon, ^and so from day to day until discharged, then and there to serve as Grand Jurors within and for the said County of — and how you shall execute this writ make a pear to our said Court on the first day of their next term, and have you then there this writ. Witness, &c. The like, for Petit Jurors. [Proceed as in the last Form, using the words Petit Jurors in- stead of Grand Jurors.]*^ (a) In a subpoena, duces tecum, 239, 3 Eng. Com. Law Rep. 85. say, "and also that you bring with The validity of an excuse for not you and produce at the time and producing papers, is to be determined place aforesaid, a certain deed, &c. by the Court and not the witness ; 9 \_Here give a description of the East, 47S. An action will lie against deed, papers, letters, ^'C, to be pro- a party who refuses to produce a pa- duced^ then and there to testify, per in his actual possession ; and it &c." Upon a. suhpcena. duces tecimi, is no defence, that the legal title to a witness is bound to produce a pa- such paper is in another person ; 1 per which he has in his actual cus- Camp. 14. tody, though the legal right and property in such paper belongs to (b) The Venire in the Court of another. The Court, however, in Common Pleas, is to be made re- all such cases, will exercise their dis- turnable at 10 o'clock, A. M. ; cretion in deciding what papers Swan's Stat. 490, §4. shall be produced ; and under what qualifications, as respects the inter- (c) The Venire for a Petit Jury est of the witness. The witness is ought not to contain the pannel for bound to produce them, though there the Grand Jury ; Forsyth v. Ohio, 6 be a regular way prescribed by law Ohio Rep. 19. for obtaining such document ; 1 Holt, 584 SALES OF REAL ESTATE. Sales of Real Estate by Administrators. SALES OF REAL ESTATE BY ADMINISTRATORS. For modes of proceeding in sales of real Estate by Administrators in Ohio, See Sivan's iStat. 339-385, and Swan's Manual, 146- SALES OF REAL ESTATE BY GUARDIANS. By the Act of 1846, Ohio Stat. Vol. 44, p. 58, the proceedings by a Guardian for the sale of real estate, are to be governed by the Stat- utes in force, at the time, regulating sales of intestate Estates by Ad- ministrators : See Swan's Stat. 339-385, and Swan's Manual, 146-177. (aj Form of Jldministrator'' s Deed. To all to whom these presents shall come, Greeting : Whereas at the -- term of the Court of Common Pleas within and for the County of — and State of Ohio, A D. — , in a certain Petition for the sale of real estate, wherein A. B. as administrator of C. D. late of, &c. deceased, was Petitioner and W. D. &c. respondents, the said A. B. as administrator of said C. D. was ordered to sell at public auction cer- tain real estate of said intestate, bounded and described as follows, to wit, [describe the land as in the Pe- tition,] and whereas the said admin- istrator, having duly advertised said real estate, did on the — day of — A. D. — sell the same at public auc- tion to F. W. of, &c. for the sum of — dollars, which sale was afterwards at the — term of said Court A. D. — confirmed, and said administrator or- dered to execute and deliver a deed in fee simple to said F. W. for said premises ; all which will more fully appear, reference being had to the records of said Court. Now, there- fore, I the said A. B., as administra- tor of the said C. D., in considera- tion of the premises, and by virtue of the powers in me vested by law, do by these presents, grant, bargain, sell, alien and convey unto the said F. W. and unto his heirs and as- signs forever the tenements so sold to him as aforesaid, with all and singu- lar the appurtenances. To have and to hold the said prem- ises to him the said F. W, and to his heirs and assigns forever. In testimony whereof 1 as admin- istrator of the said C. D. do hereto set my hand and seal this — day of A. D. — . A. B. [seal.] Administrator of C. D. Executed and delivered > in our presence. 5 T. X. M. X. The State of -Ohio. — County, ss. Be it remembered that on this — day of — before me one of the Justi- ces of the Peace within and for the said County of ■ — , personally came A. B. and acknowledged the forego- ing instrument to be his free and vol- untary act and deed as administrator of C. D. T. M. Jus. Peace. CHANCERY. 585 Original Bills. CHANCERY. By the Constitution of the State of Ohio, the Supreme Court is vested with original and appellate jurisdiction, and the Court of Com- mon Pleas with original jurisdiction, in Chancery, in such cases as shall be directed bylaw. Art. III. *§,2, 3. By the Act of 1831, di- recting the mode of proceeding in Chancery, the Court of Common Pleas is vested with jurisdiction in all cases, properly cognizable by a Court of Chancery, in which plain, adequate, and complete remedy cannot be had ai law ; and the Supreme Court is also vested with concurrent jurisdiction with the Court of Common Pleas, in all cases properly cognizable by a Court of Chancery, where the title to, or any contract in relation to land is in question, or the sum or matter in dis- pute, exceeds one thousand dollars in value ; and appellate jurisdic- tion, in all cases, regularly brought before them, from the Chancery decisions of the Court of Common Pleas ; Swanks Stat. 697. The power is likewise conferred, by the same Statute, upon the Supreme Court and Courts of Common Pleas, sitting as Courts of Chancery, to make rules and regulations, for ilie government of proceedings had before them : and they are, in all things, to be governed by the known usages of Courts of Equity, except where it may be otherwise provided by law. Ibid.^ This Statute, with some professed amend- ments thereto, has in many respects changed the course of proceed- ings, and, in general, has greatly simplified the practice, as known and followed in Courts of Equity in England, and in some of the United States ; but still the great question of Equity Jurisdiction ; the several kinds and distinctions of Bills ; and the peculiar mode of proof, trial and relief ; are in a great measure governed by the known usages of Courts of Equity. Some of the leading features of Chan- cery practice, as modified by Statute, and by usage, will be found in the subsequent pages. (a) In reference to this Statute, it are large and liberal, and would ap- is said by Chancellor Kent: — "In pear to constitute a very adequate Ohio, the Chancery powers conferred jurisdiction. The Digest in that upon the Supreme Court and the Statute of Chancery powers and pro- Courts of Common Pleas, sitting as ceedings, is executed with much Courts of Chancery, by the Statute skill and ability," 4 Kent's Comm. of 1831, entitled, An Act directing 103, note (a) 4th Ed. the mode of proceeding in Chancery, 74 586 CHANCERY. Original Bills. CHAPTER I. Forms of Original Bills/ I. Bill by Heirs of Vendee against Vendoi', to set aside con- veyance of real estate for Fraud, and to compel I'e-payment of the purchase money. To Ihe Honorable The Judges of the Court of Common Pleas with- in and for the County of — , and State of — , in Chancery Sitting: Respectfully represent unto your Honors, your Orator and Oratrix E. M. and M. his wife, late M. B. of the County of — , in the Com- monwealth of Maryland, heirs at Law of W. S. B. and L. B., late (a) This Precedent contains the Nine formal Parts usually found in an English Bill. The other Prece- dents which follow, are such as are in common use here, without regard to any special division into Parts ; some of which, not being essential, are used or not, at the discretion of the Plea- der. A reference to some of the principal Rules of Practice, in the institution of a suit in Equity, the reader may find below, under the following Heads : I. Several Kinds of Bills. II. Address of a Bill. III. Names and Residence of THE Complainants. IV. Statement of the Case. V. Averment of Conspiracy. VI. Charging Part. VII. Averment of Jurisdiction. VIII. Interrogatories. IX. Prayer for Relief : for Process : for Publication of No- tice, &c. X. Affidavits to accompany Bills in certain cases. XI. Amendment of the Bill. XII. Parties. XIII. Filing the Bill. I. The several Kinds of Bills. First — Original Bills. Original Bills relate to matters which have not previously been brought before the consideration of the Court, and form the foundation of most of the proceedings in a Court of Equity. They are divided into : 1. Original Bills praying relief; '2. Original Bills not praying re- lief. Original Bills praying relief are sub- divided into : 1. Original Bills praying the de- cree of the Court touching some right claimed by the person ex- hibiting the Bill, in opposition to rights claimed by the person against whom the Bill is exhibi- ted ; 2. Bills of Interpleader ; ;i. Bills of Certiorari. Original Bills not praying relief are subdivided into : 1. Bills to perpetuate testimony; 2. Bills of Discovery. Second — Bills in the nature of Original Bills. Bills of this des- cription are preferred where one, not CHANCERY. 587 Original Bills. of said Commonwealth, deceased ; That in or about the year 1800, D. T., J. W., W. E., and S. A., were the owners of United States Military Land Warrants, so called, to the amount of 4000 acres, and a party to the original suit, seeks to bring the proceedings and decree in the original suit before the Court, for the purpose either of obtaining the benefit of it, or procuring the rever- sal of the decision which has been made on it. Third — Bills not Original. Bills of this description are preferred, when it becomes necessary to supply any defects which may exist either in the form of the original Bill, or may have been produced by events subse- quent to the filing of it. They are divided into : 1. Supplemental Bills; 2. Bills in the Nature of Supple- mental Bills ; 3. Bills of Revivor ; 4. Bills in the Nature of Bills of Revivor ; 5. Bills of Revivor and Supple- ment ; 6. Bills of Review ; 7. Cross Bills. II. The Address. — The Address is a proper and pertinent direction of the Bill to the Court from which re- lief is sought. In England, it is, "To the Q,ueen's Most Excellent Majesty in the High Court of Chan- cery :" In New York, " To the Chancellor of the State of New York :" In the Circuit Court of the United States, " To the Honorable the Judges of the ■ — Circuit Court of the United States, within and for the District of — , in Chancery Sitting;" 1 Barbour Ch. Pr. 85 ; Equity Practice Supreme Court United States, 1842, Rule 20. III. Names and Residence of THE Complainants. — The Names of the Complainants and their places of abode are each to be set out in the Bill with so much certainty that the Court and adverse party may know where to resort to compel obedience to any order or process of the Court ; and also for the payment of costs ; Lord Bed. 48 ; 1 Ban. Ch. Pr. Per- kins' Ed. 408 ; Story's Eq. PL §2G ; 1 Smith Ch. Pr. 82, 88. If the Bill omit to state the complainant's place of abode, the defendant, it seems, may demur ; 1 S. & S. 511. But See 8 Paige, 78 ; Story's Eq. PL § 26. And if the Bill describe the com- plainant as residing at a wrong place, the fact may be taken advantage of by plea, though a defendant can- not put in such a plea, after a demur- rer upon the same ground has been overruled, without leave of the Court ; Id. But the modern Practice in such cases is, not to demur or plead, but to move that the complainant give security for costs, and that in the mean time proceedings in the suit may be stayed ; 2 M. 4- K. 487 ; 1 Keen, 53 ; 12 Sim. 578 ; 1 Beav. 550 ; 7 Beav. 269 ; Story's Eq. PL §26. In all cases in the Courts of the United States, where the Jurisdiction of the Court depends on the citizen- ship of the parties, such citizenship must appear on the face of the Bill ; otherwise, the Bill, in any stage of the proceedings, may be dismissed on motion ; 8 Peters, 148 ; See 1 Peters' Conds. Rep. 170, and Cases there collected. See post.. Demur- rers. Nor is it sufficient to describe the party as "a citizen or resident ;" S Peters, 112. But it is too late to question the jurisdiction after the cause has been sent back by Man- date ; 6 Crunch, 267. And in a case 388 CHANCERY. Original Bills. in the following proportions, to wit : D. T., 2250 acres — J. W., 650 acres — W. E., 650 acres — and S. A., 450 acres — in all, 4000 acres: That the said D. T., J. W., W. E., and S. A., being residents of the at Law, where the averment of Ju- risdiction was made in the Plain- tiff's joinder to a demurrer, it was held well enough, after acquiescence on the other side ; 12 Peters, 50. It must appear that the Court has jurisdiction between each of the plaintiffs and defendants ; 1 McLean, 110. See Slori/s Eq. PL §402. But a Corporation created by, and transacting business in, a State, is to be deemed an inhabitant of the State, capable of being treated as a citizen, for all purposes of suing and being sued, and an averment of the facts of its creation, and the place of transac- ting business, is sufficient to give the Circuit Courts of the United States jurisdiction ; 2 Howard, 497. IV. Statement OF the Case. — There does not seem to be any rule rendering it absolutely neces- sary that every material fact should precede the charging part of the Bill ; 2 Hare, 268. But if a plea is put in, its validity will be decided with reference to the stating part of the Bill, and not with reference to the interrogating part, if it varies from it ; Story's Eq. PL § 27; 1 Hogan, 29. Nor will the complainant be permit- ted to offer or require evidence of any material fact not distinctly stated in the premises; 7 THicat, ty22; S'tori/s Eq. PL § 28, 257, 2()3 ; 1 1 PeL 229. Whatever is essential to the rights of the complainant, and is necessarily within his knowledge, ought to be alleged positively; and it has been held on demurrer, that it is not a suf- ficient averment of a fact, in a Bill, to state that the complainant "is so in- formed ;" or to say that one defendant alleges, and the plaintiff believes, a statement to be true ; nor is an allega- tion, that the defendant sets up cer- tain pretences, followed by a charge that the contrary of such pretences is the truth, a sufficient allegation or averment of the facts which make up the counter statement; Q Beav. 166; :J Hare, 497; 1 Ves. 56; 5 Beav. 620 ; 2 ^nst. 543 ; 2 Hare, 268; 10 Yerger, 218. Defects in the statement of the case cannot be supplied by inference, or by reference to averments in other parts of the Bill ; 22 Pick. 55. For other cases on these points, See 2 Bibb, 4 ; 7 Vermont, 857 ; 8 Gill and Johns. 171 ; 2 Bibb, 26; 7 Conn. 342; 5 Monroe, 220 ; 3 Ohio, 62 ; 3 Rand, 263 ; 10 Pet. Ml ; 5 Munf. 314 ; 1 Rice Eq. 13; Conn. 57 ; 3 J. J, Marsh. 2«4 ; 15 Wend. 83; A Hen. S^-Munf. 423; 3 Monroe, 188; 7 Conn. 342 ; 5 Conn. 592 ; 10 Yer- ger, 218 ; 3 Leigh, 58 ; 4 Johns. Ch. 437 ; 9 Pet. 503. Where the facts stated in the Bill are disproved, or are defectively stated, relief may be gran- ted upon the facts stated in the An- swer ; 2 £. IC. Marsh. 474 ; 8 Dana, 184; 10 Yerger, 115; 7 Yerger, SO. But See 1 1 Pet. 229 ; 7 fVheat, 522; 6 Joh7is. 564; Story's Eq. PL §257, 2(J4; 15 Vermont, 110; 8 GilUS' Johns. 171. To explain an ambiguity in the Bill, resort may be had to the inter- rogating part, or to the prayer ; 1 Bland, 249, 255. If the complain- ant be necessarily ignorant of his rights, he may avail himself of the answer to supply the allegations in the Bill ; 3 ^. K. Marsh. 474 ; 1 Rice Eq. Rep. 13. The claims of a defendant may be stated in general terms ; yet the Bill must show a case upon which, if admitted by the Answer, or proved CHANCERY. J89 Original Bills. Commonwealth of Massachusetts, employed one W. C. S., and cer- tain associates of his, to register and locate said Land Warrants, agreeing to give 10 per cent., or 400 acres out of the 4000, for their at the hearing, the Court could make a decree; 6 Sim. 481 ; Story'' s Eq. PL § 255, 257 ; 1 Dan. Ch. Pr., Perkins' Ed, 411, 412. Tlie plain- tiff cannot travel out of the matter alleged in his Bill to make a ground of rehef ; 3 Ohio, 62. A party is not allowed to state one case in a Bill or Answer, and make out a different one by proof; 10 Peters. 177. Deeds and other instruments of writing are not to be set out in haec verba, but only according to their le- gal effect. This rule does not hold, however, where a question is likely to arise on the precise words of an instrument ; as in some cases of Wills and instruments informally ex- ecuted ; Beams'' Ord. 78 ; 1 IJaji. Ch. Pr., Perkins' Ed. 414. Nor does it seem to be necessary, in a Bill to enforce an agreement, to allege it to be in writing, under the Statute of Frauds. The practice is to take advantage of the Statute by Plea or Answer, and not by demurrer; 2 Pro. C. C. 559 ; 1 Dan. Ch. Pr., Perkins' Ed. 418 ; 3 Paige, 478. But if the Bill shows the agreement to be by parol, and no facts are alleged to take the case out of the Statute, the de- fendant may demur ; 2 Paige, 177. The manner in Avhich deeds or other instruments of writing are re- ferred to may be as follows : " as by said deed, reference being thereto had, when produced, will more fully and at large appear ;" or, " and which deed is herewith filed and made part of this Bill." See 4 Johns. Ch. 437. In pleadings in Equity, general certainty is sufficient ; Story's Eq. PI. § 253. For other authorities on this point. See 1 Ves. Jun. 449; 3 Bro. C. C. 480; 3 Beav. 18; 1 Scam. 193 ; 6 Johns. Ch. 504 ; 4 do. 281 ; 1 Coiven, 734. As to the degree of certainty in the allegation of time. See 7 Ves. 205, Sumners' Ed. ; 5 Ves. 719, Sumners' Ed. ; 2 Story's Eq. Jur. § 770 ; 1 Dan. Ch. Pr., Perkins' Ed. 422. Where a party comes into Equity to open a settled account on the ground of Error, the Bill must con- tain a precise specification of the er- rors, otherwise the complainant will not be allowed to prove them at the hearing, even though the settlement of the account is expressed to be, errors excepted, which is the usual form in settling accounts ; 3 Johns. Ch. 587; S. C. 17 Johns. 511 ; 3 Howard, 343; 1 Iredell Eq. Pep. 403 ; 1 7>. §• Z. 119 ; 15 Wend. 83 ; 1 Bald. 394, 418; 1 Bald. 530; 2 Bro. C. C, Perkins' Ed. 311 ; 3 do. 267 ; 2 do. 03, note. But See 10 Leigh, 434. And where a Bill is filed for a general account, and the defendant in his answer sets up a stated one, the complainant must a- mend his Bill, because a stated ac- count is prima facie a bar till the particular errors in it are assigned ; 1 Atk. 1 ; Story's Eq. PL § 798. And the same rule holds where a Bill is filed to set aside an award as not being final; 2 Anst. 519. In most of the above cases the objections were taken on Demurrer. Every Bill, too, must show clearly that the complain- ant has a right to the thinof deman- ded, or such an interest in the sub- ject matter as gives him a right to in- stitute a suit concerning it ; I^ord Bed. 154; Story's Eq. PL § 23. And if several persons join in filing a Bill, and it appears that one of them has no interest, the Bill will be open to Demurrer, though it appear that all the other complainants have an 590 CHANCERY. Original Bills. services ; That said W. S. C. and his associates, proceeded to locate said Warrants, and on the 29th day of March, 1800, a Patent was granted by the President of the United States, for said 4000 acres, interest in the matter, and a right to institute a suit concerning it ; 1 P. Wms. 595 ; 4 Russ. 243 ; 5 Sim. 395 ; 1 Dan. Ch. Pr., Perkins' Ed. 362; 1 Story's Eq. PL § 509, 541, 544 ; 3 Paige, 336 ; 2 Ves. 312. One wlio files a Bill as executor, and does not state in it that he has proved the will in the proper Court, the Bill will be liable to demurrer ; 1 P. Wms. 752 ; Stonfs Eq. PL 625 ; 2 Hayw. 157. But if an exec- utor before probate, file a Bill, alleg- ing that he has proved the will in the proper Court, such allegation will obviate a Demurrer; he must, how- ever, prove the will before the hear- ing of the cause, and that will be sufficient ; 3 P. Wms. 349. And the same rule holds in case of admin- istrators ; Id. But the defendant may, by Plea, deny the probate, or the granting of administration ; 2 Sim. 241 ; Story's Eq. PL § 727. But in a Bill against an executor it is not necessary to allege that he has proved the will ; Young, 543 ; Sto- ry"* s Eq. PL § 91. Whether one claiming as heir must set out his ped- igree , Quere ; 1 Cox, 421 ; Bunb. 195; 1 Dan. Ch. Pr., Perkins' Ed. 369. Every thing intended to be proved must appear on the face of the Bill, otherwise evidence to prove it cannot be admitted; 3 Swan. 472; 18 Ves. 302; 6 Price, 240, 259; 6 Sim. 565 ; Story'' s Eq. PL § 257 ; 7 Wheat. 522; 11 Pet. 229; 6 Johns. 564. Nor will an inquiry be directed before the Master unless ground for it is laid in the pleadings; 1 Mad. 414. The amount in controversy must not be beneath the dignity of the Court. On this point, See 1 Eq. Ca. Abg ; 4 Bro. P. C. 314 ; 1 Dan. Ch. Pr., Perkins' Ed. 378 ; Story's Eq. PL § 500, 501, 502; 4 Johns. Ch. 183; 3 Steward ^^ Porter, 284 ; 5 Johns. Ch. 276 ; 1 Hopk. 112 ; 1 do. 119; 4 Paige, 364; 5 Conn. 468; 3 Paige, 505; 9 Wend. 548; 7 Paige, 62; 5 do. 245; 4 J. J. Marsh. 12 ; 7 Conn. 205 ; 7 do. 496 ; 4 Day, 419 ; 2 Paige, 323 ; 8 Wend. 395; 1 Ed. Ch. 271; 1 do. 583; Swan's St. 710. By Statute, in Ohio, the Supreme Court has original juris- diction in certain cases where the mat- ter in dispute exceeds 1,000 dollars ; Swan's Stat. 698, § 1,2. In such cases it may be proper to make that averment in the Bill. In cases where the Supreme Court and Court of Common Pleas have concurrent ju- risdiction, and a Bill is filed in the Court of Common Pleas, the Supreme Court will not stay the proceedings in that Court by injunction, and take jurisdiction of the same matter ; 6 Ohio Rep. 373. Care also is to be taken to avoid multifariousness, for it is a Rule of Equity that two or more distinct subjects cannot be em- braced in the same suit. As to what constitutes multifariousness, the cases differ widely ; and it is said that a close survey of all the authorities will conduct us to the conclusion that there is not any positive, inflexible rule, as to what, in the sense of a Court of Equity, constitutes multi- fariousness, which is fatal to a suit on Demurrer ; Story's Eq. PL § 539 : 3 Howard, 333 ; 4 Rand. 74. If a Bill does not pray for multifarious relief, it cannot be objected to for multifariousness, though the cases stated in the Bill would support a prayer for multifarious relief; 1 Ho- gan, 290. Creditors may join in one Bill ; so may legatees and devisees ; CHANCERY. 591 Original Bills. being Section — , Town. — , Range — , United States Military Lands, and situate in said County of — : That said Patent was issued as aforesaid, to the said D. T., J. W., W. E., and S. A., as tenants 2Bibb,3]4:; Johns. Ch. 139; 5 Howard, 127. All tenants in com- mon ought to be parties in a suit to settle the title ; 2 Marsh. 240. A Bill by an administrator, in conjunc- tion with the heirs and distributees of the intestate, to recover personal property in the hands of the defen- dant, and to divide and distribute it, is multifarious; 10 Verger, 383. If a joint claim against two or more defendants is improperly joined in the same Bill with a separate claim against one of the defendants only, in which the other defendants have no interest, and which is wholly uncon- nected with the claim against them, all or either of the defendants may demur for multifariousness ; 6 Paige, 22. And a Bill against one for a claim against him, in his individual character, and another claim against him as heir for the debt of his ances- tor, may be objected to for multifari- ousness ; 4 Blackf. 249. A joint claim against two defendants is im- properly joined in the same Bill with a separate claim against one of the defendants ; 5 Paige, 65. For oth- er cases on the subject, See 2 Mason, 201 ; 4 Cowen, 082; G Johns. Ch. 139 ; Lift. Sel. Cas. 320 ; 23 Maine, 269; Story's Eq. PL, §271, 289, 530, 540 ; 20 Pick. 308 ; 1 Iredell Eq. Rep. 389 ; 4 Ra7^d. 74; 5 Conn. 86; 1 Saxton, 31; 7. /. J. Marsh. 37 ; 6 Dana, 186 ; 5 J. J. Marsh. 158. Multifariousness must be ta- ken advantage of by Demurrer ; 5 Paige 79, 2 Ves. 325; 4 Blackf. 249: 2 Gill .^ Johns. 14; 9 do, 281; 10 lerger, 383; 10 Gill S,- Johns. 480, or by Plea or Answer ; 3 Howard, 333. But See, 7 Ohio, 119, Parti. And the Demurrer goes to the whole Bill ; 5 Paige, 65. See 2 Ves. 325 ; 1 1 Conn. 562. But the Court may, at any time, sua sponte, for the purposes of jus- tice, dismiss the Bill for multifari- ousness ; 3 Howard, 333 ; 10 Ohio, 456. See Story's Eq. PI. § 284. But after answer, it is no longer in the power of the party to do so ; 5 Howard, 127, 132. A Bill for Partition where the Complainants hold in separate lots, without privity, cannot be sustained ; 13 Ohio, bis. See 2 Ohio, 110; 6 Ohio, 391 ; In re I^rentiss, 7 Ohio, Part 2, 129 ; 9 Ohio, 126. V. Averment of Conspiracy. — The common Form of this Averment may be found in the Precedent to Avhich this Note is appended. Tho' usually made in the Bill, it is treated as entirely nugatory, and need not be denied or responded to in the An- swer. Story's Eq. PL § 29. See Barton's Eq. 33 ; Cooper's Eq. 10 ; 1 Hoff-. Ch. Pr. 41. In the Courts of the United States, it may be omit- ted or not at the option of the com- plainant ; Equity Practice Supreme Court United States, 1842, Rule 21. VI. The Charging Part. — If the Complainant can foresee the mat- ter which the Defendant will set up to protect himself against the char- ges of the Bill, it is usual to intro- duce such matter by this mode of allegation, which affords an opportu- nity of rebutting its effects, by char- ging facts of an opposite tendency. It is used also sometimes for the purpose of discovering the nature of the De- fendant's case ; or to put in issue some matter which the Complainant does not choose to admit; Barton's Eq. 34 ; 3 ^fk. 626 ; Lord Bed. 42; 592 CHANCERY. Original Bills. in common, but without showing on the face of it what proportion of the 4000 acres really belonged to each. And your Orator and Oratrix further represent, that on or about 4 Paige, 88. In the Courts of the United States, it may be omitted or not at the option of the Complainant ; Equity Practice Supreme Court Uni- ted States, 1842, Rule 21. In 2 Sumner, 612, it is held that the con- fessions, admissions, and conversa- tions of the defendant, need not be expressly charged in the Bill, in or- der to entitle the complainant to use them in proof of facts charged, and in issue therein ; though a contrary rule seems to prevail in the English practice ; Story'' s Eq. PL §265, (a) and the Cases cited in the Notes. The usual Form of this Part of a Bill, may be found in the Precedent to which this Note is appended. See, also, Barton''s Eq., 34 ; Equi- ty Draftsman, 5 ; Story's Eq. PL §31,33. If a subsequent purchaser, or mortgagee, seeks rehef on the ground of actual fraud, or intentional decep- tion, on the part of a prior incum- brancer, he must clearly^^and pointed- ly charge such fraud, or intentional concealment, in his Bill, and an ex- plicit denial of all knowledge of the prior incumbrance ; 6 Johns. Ch. 151. Nor is a guardian, or other Trustee, liable to account for any neglect or breach of duty not char- ged in the Bill ; 4 Johns. Ch. 281. VII. Averment of Jurisdic- tion.— The omission of this clause does not render a Bill defective ; Lord lied. 44; Story's Eq. PL §M. In the Courts of the United States, it may be used or not, at the discre- tion of the Complainant ; Equity Practice Supreme Court United States, 1842, Rule 21. Nor does this Averment confer Jurisdiction ; but the facts stated in the Bill must. of themselves, make a case within the power of the Chancellor ; Lord Bed. 44. VIII. Interrogatories. — This Part of the Bill is not regarded as absolutely necessary, though al- most universal in practice; 6 Ves. 812; Story's Eq. PL §38. The general requisition in the Bill, "that the Defendant may full, true, and perfect answer make, to all and sin- gular the premises, and that as fully and particularly as if the same were repeated," &c., is sufficient to entitle the complainant to a full disclosure of the subject matter of the Bill, equally as if he had specially interro- gated the Defendant to every fact sta- ted in the Bill ; 1 Johns. Ch. 65. Under the late Orders in Chance- ry in England, (adopted by the Su- preme Court of the United States, Pule 41, January Term, 1842,) the Interrogating Part of a Bill takes the following Form, praying : "That the said Defendants may, if they can, show why your Orator should not have the relief hereby prayed, and may upon their several and respective corporal oaths, and according to the best and utmost of their several and respective know- ledge, remembrance, information and belief, full, true, direct, and perfect answer make, to such of the several interrogatories hereinafter numbered and set forth as by the note hereinaf- ter written, they are respectively re- quired to answer ; that is to say : 1. Whether, &c. 2. AVhether, &c. And the Interrogatories which each Defendant is required to answer, are to be specified in a Note at the foot of the bill. It is not necessary, CHANCERY. 593 Original Bills. the 1st of July, 1800, the said D. T. sold and conveyed to one T. C. 1600 acres, undivided, out of his said 2250 acres, subject, as ex- pressed in his deed of conveyance, to the said 10 per cent, for loca- however, to number every question in any case ; and, as the only object of the order is to Hmit a Defendant's answrer to that portion of the Inter- rogatories which apphes to him, it does not seem, in a case where there is only one Defendant, to be absolute- ly necessary to prefix any number. The Note at the foot of the Bill, is in the Form, or to the effect following : The Defendant A. B, is required to answer the Interrogatories number- ed 1,2, B,&c. The Defendant C. D, is required to answer the Interrogatories num- bered 4, 5, 6, &c. Equity Practice Supreme Court Dnited Slates, 1842, Rule 4 1 . This Note at the foot is ex- pressly made a part of the Bill itself, and therefore seems to be regarded as increasing the number of formal Parts in a Bill, from Nine to Ten ; 1 Dan. Ch. Pr., Perkins Ed. 407. A variety of questions may be put on a single charge, if they are relative to it. Lord Red. 46 ; Story's Eq. PL §37; 6 yo/ms. 543; 1 Co2ven,7S4; 3 Paige, 606 ; 3 Johns. Ch. 596. And where interrogatories were put without any charge in the Bill to support them, and were voluntarily answered. Lord Hardwicke held the defect was cured by the Answ er, and the facts properly put in issue ; "for a matter may be put in issue by the Answer, as well as by the Bill, and if replied to, either party may exam- ine to it ;" 1 Tes. 534 ; Story's Eq. PL §36. Interrogatories are unusual, except in cases of fraud ; but, if used, they must conform to the allegations in the Bill, or they are idle ; but their ir- relevancy will not be determined on Demurrer ; the proper course is for the defendant to refuse an answer to 75 such interrogatories, and the plaintiff may then except ; JVright, 323. IX. Prayer for Relief : for Process : for PublicAlTion of No- tice, &c. — The Prayer for Relief is divided into two kinds : Prayer for specific Relief, and prayer for general Relief. In most cases, a prayer for general Relief is sufficient to enable the com- plainant to obtain such a decree as his case entitles him to ; but it is the usual practice for the complainant to pray first for such specific Relief as he thinks he ought to have, and then for general Relief ; 2 Atk. 3 ; 2 do. 41 ; II Ves. 570 ; 4 Mad. 408 ; 2 Paige, 396; 4: do. 537; 1 Hawks, 509; 1 Bland, 252; 5 Porter, 10 7 do. 144; 9 Yerger, 301 ; 1 Bibb 489 ; 1 Johns. CA. 1 1 1 ; 5 do. 89 1 Hill, 302 ; 10 Gill ^' Johns. 66 2 Bland, 45 ; R. M. Charlton, 279 5 B. Monroe, 96 ; 5 do. 593 ; 5 Ves. 485. It is never safe to omit the Prayer for general Relief, for if the complainant should mistake the Re- lief, to which he is entitled, in his special Prayer, yet the Court may grant him such Refief as he ought to have, under the Prayer for general Relief, consistent with the case made in the Bill ; 2 Pet. 595 ; Lord Red. PL 38,45; Cooper Eq. 13,14; 2 Paige, 396 ; 5 Porter, 10 ; 7 do. 144 ; 9 Yerger, 301 ; 3 Scam. 104 6 Harr. fy Johns. 29 ; 16 Pet. 182 1 Green Ch. 277; 14 Johns. 527 2 Harr. 401 ; Story's Eq. PL § 41. Besides, if there be no prayer for general Relief, and the complainant in his special Prayer mistakes the Relief he is entitled to, the Court cannot grant him any other Relief, and his suit must fail ; unless an a- mendment of the Prayer be obtained ; 594 CHANCERY. Original Bills. tor's fees, leaving the said D. T. still the owner of 650 acres; which said 1600 acres, by sundry conveyances, afterwards came to one J. P. as hereinafter set forth. Story's Eq. PL § 11 ; 5 Porfer, 10; 7 do. 144 ; 9 Verger, 301. But un- der the general Prayer the Court will grant such Relief only as the case made in the Bill will justify, and will not ordinarily allow a Bill framed for one purpose to answer another, es- pecially if the defendant may be sur- prized or prejudiced thereby : If, therefore, the complainant doubts as to the Relief he ought to have, he should frame his Bill with a double aspect, so that, if the Court should decide against him in one view of the case, it may yet afford him assistance in another ; 1 Hatvks, 509 ; 2 Paige, 396 ; 4 do. 537 ; 4 do. 229 ; 1 Bland, 252 ; 1 Smedes S,- Marshall, 17,24; 2 Ilarr. 401 ; 1 Johns. 559; 10 Gill and Johns. G6 ; 2 Bland, 45 ; 2 Voimge <§' Jer. 33; Story'' s Eq. PI. §41; Lord Bed. 38, 39 ; 1 Ean- iels Ch. Pr., Perkins' Ed. 434, 441 ; Lord Bed. 39 ; 2 Jltk. 325 ; 1 1 Ver- mont, 290. But See 8 TVend. 339 ; 1 Hoff. Ch. Pr. 49 ; 1 Green Ch. 277. Where there is no objection to the special Relief prayed for, the complainant cannot abandon that, and at bar ask a different decree, under the general Prayer ; 1 Bibb, 409 ; 5 Verger, 420. Where a mortgage was omitted to be put on record with- in six months, and a Bill was filed to have the mortgage recorded, and a Prayer for general Relief added ; a decree for a sale of the mortgaged premises was held not to be within the Relief prayed for by the Bill ; Harr. S,' Johns. 29. And where a Bill was filed for the specific exe- cution of a contract for the purchase of land, alleged to be evidenced by a written memorandum, and that alle- gation was not sustained by the proof, it was held that the complainant could not, under the prayer for general Re- lief, obtain compensation for improve- ments upon the lands ; 1 Iredell Eq. Bep. 83. Nor on a Bill to rescind a contract can the Court decree a spe- cific execution ; Utt. Sel. Cas. 146 ; S. P. 2 Vcs. 299 ; 2 Ves. Jun.24S ; 5 Ves. 452 ; 2 31 ^' K. 629. And although a complainant cannot have a decree for a difllnent agreement from that set up by his Bill, yet the defendant may have a deciee on the agreement such as he has proved it to be. 13 Fe.s. 546. And that Avith- out a Cross Bill ; Ih. And See 14 Ves. .585. The rule that the specific relief prayed by the complainant must be such as he is entitled to from the na- ture of the case made by the bill, is relaxed where infants are concerned ; and it is held that an infant complain- ant may have a decree upon any matter arising upon the state of his case, though he has not particularly mentioned or insisted upon it, or pray- ed it by his Bill ; 1. Alk. 2 ; Story Eq. PI. § 40 ; Dan. Ch. Pr., Per- kins' Ed. 95, 441. By the Act of \S4h,{Ohio Stat. vol. 43, §.1) adopted from the State of N. York, answers in Chancery are not to be received as evidence unless the Bill calls for an answer upon oath. When the oath is waived the answer is mere pleading and need not be sign- ed by the defendant ; 1 Clark Ch. Bep. 63. Such answer is not liable to exception for insufficiency ; Id. See 7 Paige 370 ; 4 do. 227. See Answers, post. In some cases the complainant must in his Bill offer to do what is just and equitable on his part : As in the cases of specific perform- ance, the complainant ought by his CHANCERY 595 Original Bills, And your Orator and Oratrix further represent, that one J. S. of the County of — , and State of Ohio, (and whom your Orator and Oratrix pray may be made a party defendant to this Bill,) by some Bill to submit to perform, on his part ; 13 Ves. 425; 13 do. 546 ; 1 Ban. Ch. Pr., Perkins' Ed. 441 . See .Tory's Eq. PL §394; 1. Story's Eq.Jur. §64; 2 AT Lean, 495 ; 1 Scam. 54 ; 2 Blackf. 273. And in Bills to avoid a debt on the ground of usury, the complainant by his Bill must offer to pay what is bona fide due, or the de- fendant may demur. Fonbl. Eq. 25 ; 2 Bra. C. C. 641 ; 1 Dan. Ch. Pr. Perkins' Ed. 442; b Johns. Ch. 142; I do. 367 ; 7 Paige, 158 ; 8 do. 548 ; 1 Clarke, 482 ; 6 Gill 4- Johns. 103 ; 1 Paige, 429 ; 1 Blackf. 382 ; 5 Vermont, ^IQ. And the same rule, it seems, applies to cross Bills ; 4 Bro. C. C. 426; Storfs Eq. PI. §630. But in overhaling usurious transactions Equity has never laid down any general rule beyond which it may not go, lest schemists should find out other means of avoiding the Statute ; 3 Atk. 278. Nor will the Chancellor compel a discovery to aid a plea of usury, at law, unless the debtor, in his Bill, tenders the sum actually borrowed; 1 Johns. CA.367; 1 do. 439. Nor will a judgment be enjoined without such offer to pay, and the want of such averment may be taken advantage of on the hear- ing, after answer ; 1 1 Ohio Rep. 417. See also 11 Ohio Rep. 498; 12 do. 544; 13 do. 107. Nor will the Court allow an Answer to be amend- ed for the purpose of setting up usu- ry as a defence, unless the defendant consents to pay the amount actually due ; 1 Paige, 429. And where a Bill is filed waiving penalties and for- feitures in order to force a discovery, such waiver is inserted in the Pray- er of the Bill, and if it is omitted the Bill will be liable to Demurrer ; 1 Ves. 56 ; 2 Bro. P. C. 495 ; 1 Dan. Ch. Pr. Perkins' Ed. 443. A person whom the Bill prays to be made a party does not thereby be- come a party ; to make him such, process must be issued and served upon him ; 2 Paige, 438 ; 7 Mon- roe, 113; \ A. K. ^Marsh. 594 ; Sto- ry's Eq. PI. §44 ; 3 Litt.^14:. By the 22nd and 23rd Rules of the Supreme Court of the United States, 1842, it is provided, "If any persons, other than those named as defend- ants in the Bill, shall appear to be necessary or proper parties thereto, the Bill shall aver the reason why they are not made parties, by show- ing them to be out of the jurisdiction of the Court, or that they cannot be joined without ousting the jurisdic- tion of the Court as to the other par- ties : And as to persons, who are without the jurisdiction, and may properly be made parties, the Bill may pray, that Process may issue to make them parties to the Bill, if they should come within the jurisdiction : The Prayer for Process of subposna in the Bill shall contain the names of all the defendants named in the intro- ductory part of the Bill, and if any of them are known to be infants un- der age, or otherwise under guardian- ship, shall state the fact, so that the Court may take order therein as jus- tice may require, upon the return of the process : If an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is ask- ed for in the Prayer for Relief, that shall be sufficient, without repeating the same in the prayer for Process." In New York, parties may be treat- ed as defendants, by a clear statement in the Bill to that effect, without 596 CHANCERY. Original Bills. means ascertained that said Patent had been issued in manner afore- said, and although lie was well aware of the real interest and propor- tion which each of said Patentees had in said lands, yet he so managed praying the subpoena : The reason is, that in New York the subpoena is is- sued of course, and a formal Prayer for Process is unnecessary ; 2 Johns. Ch. 245 ; 1 Hopk. 555. In Ohio, the subpoena, by Statute, issues of course, on application of the Complainant or his Solicitor, after the Bill is filed ; Swan's Stat. 699, §5 : And in drawing a Bill, whenever a person is introduced who is intended to be made a defendant, the common practice is to insert the following prayer immediately after naming him : (and ivhom your Orator prays may be made a party defendant to this Bill:) and then in the final Prayer, ask for a subpoena against him. When a Bill seeks to obtain a spe- cial order of the Court, or a provi- sional writ of Injunction or Ne Exe- at, it is usual to insert, immediately before the Prayer for Process, a Pray- er for the order or particular writ which the case requires ; Lord Red. 46 ; Story's Eq. PI. §44 ; Edtn on Injunctions, 73 ; Story's Eq. Jur. §862, 863 ; 4 Paige, 248 ; Bea. Ne Ex. 6, 7 ; Madd. Ch. Pr. 226 ; 5 Fes. 98; 15 Vcs. 159, 164. A Prayer for general Relief will not be sufficient to authorize an in- junction, for, as against the general words, the defendant might make a different case than he would against a Prayer for an injunction ; but this rule applies only to cases where a provisional injunction is required un- til the hearing : After decree the Court will interpose by injunction, although it is not asked for by the Bill; 1 B. ^- F. 314; 8 J Vs. 520; 1 ./. ^ W. 232; Jac. 122; 1 Dan. Ch. Pr. Perkin's Ed. 448. And where an injunction is sought not as a pro- visional remedy merely, but as a per- petual protection, tiie Prayer of the Bill must be framed according] v ; Mit. PI. 47 ; 4 Paige, 229. The Prayer for a iVe exeat resembles that for an injunction ; and on the same Bill a Ne exeat as well as an injunc- tion may be granted ; Hinde, 18 ; 1 Bland, ]82. See 11 Sim. 50; 2 I). 4' IV. 86 ; Lord Bed. 46 ; Story's Eq. PI. §42. In Ohio it is provided by Statute, that " in cases where any or all of the defendants reside out of this State, the complainant may cause personal service of a subpana, with a copy of the Petition ; or he may cause notice of the pendency of the Petition, con- taining a summary statement of the object and prayer thereof, to be pub- lished six consecutive weeks, in some newspaper printed in the county where the Petition is filed, if there be any, and if not, in some newspaper printed in this State, of general cir- culation in the county," and "in ca- ses where it shall be necessary to make the heirs of any decedent, de- fendants, and the names of all, or part of them, are unknown, and the complainant annexes to his Petition an affidavit of his want of knowledge of the names or residence of such heirs, proceedings may be had against them, without naming them, and the Court shall make such order in rela- tion to notice, as they may deem proper." Simn's St. 701, 702, § 7, 10, The latter provision extends also to devisees ; Ohio St., Vol. 43, ' p. 125. In cases against non-resi- dents, under this Statute, it is cus- tomary to pray for a Publication of Notice : and in cases against un- known heirs, to pray the Court to make such order in relation to Notice as they may see fit. See Affida- vits, and Final Decrees. CHANCERY. 597 Original Bills. the affair as to obtain from them deeds of conveyance, as follows : on the day of June, 1808, a quit claim deed from said J. W., not specifying any quantity, but reserving 65 acres for locator's fees : On the 6th of July, 1808, a like quit claim deed from said S. A., witii Forms of Prayer. Prayers for Special Relief depend on the circumstances of each case, and admit of no General Form : See Forms of Original Bills. No. 1. Prayer for General Relief. And that your Orator may have such other and further relief in the premises as to your Honors shall seem meet ; Equity Draftsman, 5. No. 2. Prayer for Injunction to STAY PROCEEDINGS AT LaW. May it please your Honors to grant unto your Orator, a writ or writs of Injunction, issuing out of and un- der the seal of this Honorable Court, to be directed to the said A. B. to res- train him from proceeding at Law against your Orator, touching any of the matters in question ; and also a writ of subpoena, to be directed to the said A. B., (and to his confederates when discovered), thereby comman- ding him, at a certain day, and un- der a pain to be therein hmited, per- sonally to be and appear before your Honors in this Honorable Court, and then and there full, true, direct, and perfect answer make to all and sin- gular the the premises, and further to stand to, perform, and abide such further order, direction, (and decree) (a) therein, as to your Honor shall seem meet ; and your Orator shall ever pray, &c. ; Hind. Ch. Pr. 78 ; IVillis Eq. PL 8, 9. No. 3. The same in a shorter Form, WHERE ONE OF THE DEFENDANTS IS A NON-RESIDENT, AND ANOTHER IS AN UNKNOWN HEIR, INCLUDING A Prayer for Special and General Relief. [Immediately after the Interroga- tories proceed.] — Your Orator there- fore prays process of Subpoena a- gainst the said A. B. and C. D. residents of the State of Ohio as aforesaid, and for Publication as to E. F. and G. H. non-residents as aforesaid, and for such order of no- tice as to the said Unknown Heirs as to your Honors shall seem fit, ac- cording to the Statute in such case made and provided ; that your Hon- ors will grant an Injunction restrain- ing the said A. B. and C. D. from proceeding at Law, against your Or- ator touching any of the matters in question until hearing or further or- der ; and that, on the final Hearing, the said A. B. and C. D. may be de- creed to convey to your Orator in fee simple the lands and tenements afore- said, with covenants of special war- ranty, and that a perpetual Injunc- tion be decreed against the said judg- ment at Law, [Here insert other Special Relief] and that your Orator may have such other and further Re- lief in the premises as to your Honors shall seem meet ; See, Injunctions — Interlocutory Orders. (a) In Bills of Discovery and other cases where no decree is sought for, these words are of course omitted. 598 CHANCERY Original Bills. no reservation for locator's fees : On the 15th of July, 1808, a like quit claim deed from said W. E., also without any reservation for lo- cator's fees ; and the said J. S. having thus obtained these three quit No. 4. Prayer for Injunction to Stay Waste. Jllay it please your Honors to grant unto your Orator a writ or writs of Injunction, issuing out of and under the seal of this Honorable Court, to be directed to the said A. B. to re- strain him, his servants, workmen, and agents from committing waste, spoil or destruction, in the mansion or other houses, upon the estates in question ; and from cutting down timber, or other trees, growing upon the said estates, which are planted or growing there for the protection of the several mansion houses belonging to the said estates, or for the orna- ment of the said houses, or which grow in lanes, walks, or vistas, or otherwise, for the ornament of the said houses, or of the gardens, parks, or pleasure grounds, there- unto belonging ; and also to restrain him, his servants, workmen, and agents, from cutting down any tim- ber, or other trees, except at sea- sonable times, and in an husband-hke manner ; and likewise from cutting saplings and young trees, not fit to be cut, as and for the purposes of timber, except in the spring woods, and from cutting any thing in the spring woods except in an husband- like manner, until hearing or further order ; and also a writ of subpoena to be directed. [^Conclude as in iVo.2.j See, IVillis Eq. PL 9 ; Lord Red. 37,92; 1 Madd. Ch. 513. See, al- so. No. 3, Ante. 597. No. 5. Prayer for Writ of Ne Exeat. May it please your Honors, the premises considered, to grant unto your Orator a writ of ne exeat Re- pubhca issuing out of and under the seal of this Honorable Court, to re- strain the said A. B. from departing out of the jurisdiction of this Court ; and a writ of subpoena to be directed, &c. [Conclude as in No. 2.] See, Forms of Writs, Post. X. Affidavits to accompany Bills IN certain Cases. As where the Bill is filed to ob- tain the benefit of a lost instrument, upon which an action at Law would lie ; Lord. Red. 55 ; 2 P. JVms. 541; 1 Johns. Ch. 429, 417 ; 4 Johns. Ch. 294 ; 6 Johns. Ch. 342, 346 ; Lilt. Sel. Cas. 373 ; 2 Bibb, 556 ; 3 Leigh, 58 ; 1 Rlackf. 78 : Lord Red. 123, 124, 150, 151 ; Story^s Eq. PL §288. Contra, it seems, in Virginia ; 6 Munf. 202. A Bill to recover the amount of a lost note must aver it has not been paid, 3 J. J. Marsh. 284. So where the Bill is for the discovery of deeds and wri- tings and for relief thereon, if the relief prayed be such as might be obtained at Law; but if a discovery only is asked for, or merely the de- livery of deeds or writings ; or where the subject-matter of such deeds or writings is properly cognizable in Equity, an Affidavit of the loss is not necessary ; J^ord. Red. 55 ; 1 Ves. 380 ; 3 Jitk. 17 ; 4 Johns. Ch. 294 ; 1 Hill Ch. 33 ; 1 Pet. 2-14 ; 2 Bibb, 566 ; 1 Caines Cas. Er. 345 ; S. C. 1 Johns. Ch. 9 ; Lord Red. 54, 124; Story's Eq. PL §288. An Affidavit also is necessary where a Bill is filed to examine witnesses de bene esse; Lord Red. 150; 1 P, JVms. 117; 1 Caines Cas. Er. 344; S. C. 1 Johns Ch. 429 ; Lord Red. 150 ; Story's Eq. PL §309 ; And on application for writs of ne exeat, 7 Ves. 96; 2 Wash. C. C. 130; 3 CHANCERY. 599 Original Bills. claim deeds, at once, setup and claimed that he was, really, and in fact, the owner of Three Fourths of the whole Section, or 3000 acres though the said J. S. well knew that in justice he could only Johns Ch. 75 ; 7 Johns Ch. 189 ; 1 Hopk. 500. And in Bills of Inter- pleader, iMrd Red. 50 ; 11 Sim. 33 : Lord Red. 143 ; Eden on In- junctions, 401,402; 8 Pmg-e 339 ; 3 /. J. Marsh, 67 ; 1 Coiven, 691 ; 5 Vcs. Jun. 303 ; 2 Ves. and Bea. 410. In Connecticut such an Affi- davit is not necessary ; 6 Conn. 421. In cases of this nature advantage can only be taken of the omission of an Affidavit, by Demurrer; 11 Sim. 40 ; 1 ^. c^- S. 227 ; 1 Pet 244 ; 1 Dev. and Batt. Eq. Rep. 6 ; 1 Dan. Ch. Pr. Perkins' Ed. 449, 4.53. And though the Affidavit of the loss of a bond, &c., ought regularly to be filed at the same time with the Bill, yet if filed afterwards, in the progress of the cause, it is sufficient ; 7 Lei<^h, 128 : See, 10 Ohio, 275 ; 6 Man/. 202. An Affidavit is also necessary in Bills against Unknown Heirs, or Devisees ; Swanks Statutes, 702, §10; Ohio Statutes, 42, p 125; Also, in Kentucky, under a like Statute; 7 Monroe, 657; And the Affidavit must be made by each of the complainants ; 7 Dana, 89 ; 9 do. 236. But it is not absolutely necessary, that it should be filed at the same time the Bill is ; if filed before any order or decree attempt- ing to bind the rights of the defen- dant, it is sufficient to pass title to real estate ; 10 Ohio, 275 : See, 7 Leigh, 128 ; 6 Munf. 202. Where the Complainant in a Creditor's Bill resides at a distance from the debtor, the Bill may be verified by the at- torney or agent of the complainant who has had charge of the collection of the debt, and who has conducted the proceedings at Law ; 9 Paige, 605. No. 1. Affidavit that the Com- plainant HAS NOT THE DeEDS IN- QUIRED AFTER. A— B— ,-| v. y In Chancery. C— D— ,J A. B., the Complainant in this cause, maketh oath and saith, that he, this deponent, hath not, nor to the best of his knowledge, remem- brance or belief, ever had, all or any of the deeds, evidences, and writings, relating to the estate in question in this cause, and which are mentioned in this deponent's Bill, exhibited in this Honorable Court against the said defendant : nor doth this deponent know where the said deeds, eviden- ces, and writings, or any of them, now are, unless they be in the cus- tody or power of the said defendant ; 1 Harr. Ch. Pr. 58. No. 2. Affidavit that the Com- plainant HAD WRITINGS, BUT HAS LOST THEM. 1 A— B— , v. C. D., E. F., G H., and J. K., J ^In Chancery. A. B., the said Complainant, ma- keth oath, that some time since, to wit, on, &c., the writings now sued for in this cause, were in his this de- ponent's custody and possession ; but since the said time he this deponent hath accidentally lost them : And this deponent farther saith, that he doth not know where the said wri- tings are, unless they are in the hands or custody of the said defend- coo CHANCERY. Origiaal Bills. claim the shares ot said J. W., S. A., and W. E., amounting, in all, to only 1150 acres, and that, too, subject to the said locator's fees of 10 per cent. ants, some or one of them, or else that the said writings are now, or late were, in the custody of the said de- fendant J. K., as he is credibly in- formed and verily believes ; 1 Hart. Ch. Pr. 59. No. 3. Affidavit ior Examina- tion OF Witnesses, dc bene esse. A— B— , V. C— D— , In Chancery. A. B., the said complainant, nia- keth oath, that G. H. of, &c. is a ve- ry material witness on his behalf in this cause, and without whose evi- dence this Affiant, as he is advised, (and verily believes,) cannot safe- ly proceed to a hearing in this cause ; that the said G. H. is now in the seventieth year of his age, as he, the said G. H,, informed this Affiant. And this Affiant fur- ther saith, that the said G. H. ap- pears to be very weak and infirm, and in a declining way, and from his ad- vanced years, in all probability, not likely to live long. No. 4. Affidavit to be annexed to Bill of Interpleader. A. B. }■" Chancery. C. D. & E. F A. B, the said Complainant, inak- eth oath and saith, that he has exhib- eted his Bill of Interpleader against the defendants in this cause without any fraud or collusion between him and the said defendants, or any or either of them ; and that he the said A. B. hath not exhibited his said Bill at the request of the said defendants, or of any or either of them, and saith that he has exhibited his said Bill with no other intent but to avoid be- ing sued or molested by the said de- fendants, who are proceeding, or threaten to proceed at Law, for the recovery of the rent in the said Bill mentioned ; Eqinty Draftsman, 208; 2 Ves. Jim. 303 ; 1 Madd. Ch. Pr. 175 ; 2 Ves. 8f Bea. 410. No. 5. The like, in another Form. A. B. the said complainant, ma- keth oath and saith, that he doth not in any respect collude with either of the above named defendants, touch- ing the matters in question, in this cause, nor is he in any manner in- demnified by the said defendants or either of them ; nor hath he exhibit- ed his said Bill of Interpleader at the request of them or either of them, but merely of his own free will and to avoid being sued or molested touch- ing the matters contained in his said Bill; lb. No. 6. Affidavit for a Ne Exeat. A. B. V. \.\x\ Chancery. C. D. A. B. the said Complainant, ma- keth oath and saith, that C D. the said defendant, owcth and now is justly indebted unto him, this depo- nent in the sum of — ,and being thus indebted the said C. D. hath lately threatened and given out that he will speedilj'^ leave this kingdom and go beyond sea, whereby this deponent will either lose his said debt, or the same will be very much endangered, and it will be difficult for this depo- nent to recover the same ; 1 Ilarr. Ch. Pr. 59. CHANCERY. 601 Original Bills. And your Orator and Oratrix further represent, That the said J. P. being the owner of said 1600 acres, which said D. T. had sold to said T. C. as aforesaid, he the said J. P. and the said J. S. under- took to make a Partition of said Section of 4000 acres, wholly be- No. 7. Affidavit to be annexed to Bill against Unknown Heirs or Devisees. The State of Ohio, — County, ss. Before me, the subscriber, a Justice of the Peace in and for the said County of — , personally came A. B. and C. D, complainants in the above Bill, and each of them severally made oath, that he has no knowledge of the names or places of residence of the Heirs, or Devisees, of T. W. deceas- ed, defendants in the above Bill. Sworn to, &c. XL Amendment of the Bill. The Complainant may amend his Bill by adding new parties, inserting new matt(ir subsisting at the time of filing the Bill, of which he was then ignorant, or which he did not think necessary to be stated, or by striking- out matter not relevant, or no longer necessary to his case, or parties that may be dispensed with : and these Amendments, as a general rule, are in the discretion of the Court, and are always allowed, for the further- ance of justice, with great liberahty, until the proofs are closed ; 3 Paige, 440; 3 do. 505; 3 Sumner, 410; Cam, fy Nor. 239, 264 ; 2 B. Mon- roe, mS; 1 Hill, Ch. Hep. 217; 1 Baily Eq.lSl. But where the Bill is upon oath greater caution is exer- cised ; 1 Paige, 424 ; 2 do. 67 ; 1 Edw. 46 ; 9 Yerger, 287 ; 6 Paige, 655 ; 6 rfo. 22 ; 4 do. 538 ; 1 Johns. Ch. 434 ; 1 Paige, 424. And in some cases the Court will require the complainant to state the proposed amendments to a sworn Bill distinct- ly, so that the Court can see that they are merely in addition to the original Bill, and not inconsistent therewith ; and also to swear to their truth and give some vahd excuse for omitting them in the original Bill , and the application to amend must be made as soon as its necessity is discov- ered ; 1 Edw. 46 ; 1 Paige, 424 ; 2 do. 67; 1 Murphy, 191 ; 3 V. ^' B. 144 ; 1 Dan. Ch. Pr., Per- kins' Ed. 469, 489. When the Amendment will introduce new facts the Court allows it with greater re- luctance where it depends on parol proof, than Avhere it depends on writ- ten instruments omitted by accident or mistake ; 3 Sumner, 410 ; 1 Brock. 119. The Amendment is a mere contin- uation of the original Bill, and both together make but one record ; 2 Bich. 441 ; 1 Dan. Ch. Pr., Per- kins' Ed. 445; Story's Eq. PL § 332, 885 ; 1 Paige, 124 ; 3 Bland, 9, 20 ; 1 Irish Eq. 56. Matter ari- sing after filing the original Bill must be brought upon the record by Sup- plemental Bill, and not by Amend' ment ; 1 Paige, 200 ; 5 Pick. 276 ; 1 Edw. 46 ; Story's Eq. PL § 332, 614 ; 2 Atk. 136 ; 4 Sim. 76. See also 1 Cox, 397 ; 17 Ves. 144, 148 ; 2 Mer. 469; 1 Mad. .567; 2 Bligh, 228; 1 Paige, 168; 1 do. 124; 3 Bland, 9, 20; 1 Irish Eq. 50 ; Sto- ry's Eq. PL § 885, 332. Instal- ments on mortgages, and such like cases, it seems, are exceptions ; 4 Lift. 201 . And the objection may be taken by answer as well as by plea or demurrer ; 1 Dan. Ch. Pr. Perkins' Ed. 460; 2 iJ/. «^- A'. 235. Mistakes in the statementof factsinaBillare to 76 603 CHANCERY. Original Billi. tvveen themselves, without any regard whatever to the locator's fees, or to the remaining interest of said D. T. in said Section : and ac- cordingly they did make a partition thereof; and it being supposed that the south part of the Section was the best land, the said J. P. agreed to take 1175 acres in the south part, and permit the said J. S. be corrected by Amendment, and not by Supplemental Bill ; 12 Sim. 253 ; Story's Eq. PL § 332, 614; 1 Paige, 200. But where a cause has proceeded so far that an Amendment cannot be made, or where new mat- ter has arisen since filing the Bill, the Court will give leave to file a Supplemental Bill ; and upon such leave the Court will allow other mat- ters to be introduced into the Supple- mental Bill, which might have been incorporated into the original Bill by way of Amendment ; 1 Paige, 200. Where new matter was brought in by Amendment, instead of Supple- mental Bill, and the defendant in his answer insisted on the objection, the Bill was dismissed with costs ; M. ^^ K. 235 ; 7 Eng. Ch. Rep. Conds. 348. On amending Bills by altera- tion of parties, See 1 M. S,- C. 433 ; 3 Seov.353 ; 13 Sim. 466 ; 3 Beav. 598 ; 3 M. 8,- C. 258; Cam. S;- Nor. 239,264; 76.520; S. S;- S. 662; 2 V. ^' C. 631 ; 2 Scho. fy Lef. 169 ; 1 Vcs.Jim. 142; 2 ilfer. 71, 74 ; 1 M. ^' C. 511 ; 6 Ves. 773 ; 14 Ves. 1 ; 10 Pick. 123 ; 1 Dan. Ch. Pr. Perkins' Ed. 456. After the proofs in a cause are closed, no Amendment of the Bill is allowed, except to make new par- ties, and in matters of mere form, and that under very special circumstan- ces ; 3 Atk. 370 ; 1 Dan. Ch. Pr. 459; Paige, 4(i7: ^ee 1 C/ark, 315 ; 3 Johns. Ch. 423 ; IJinde, 25 ; 4 Johns. 671.363; 4 Hen. ^' Miinf. 489. There are cases in Chancery where Amendments are permitted at any stage or progress of the cause, as where an essential party has been omitted; but Amendments which change the character of the Bill or Answer, so as to make substantially a new case, should rarely if ever be admitted after the cause has been set for hearing ; much less after it has been heard ; 14 Pet. 156 : See 2 Dallas, 364. But a decree was sus- pended and leave given to the com- plainant to take out letters of adminis- tration, and slate that fact by way of Amendment; 2 McCord, Ch. 170. See 2 Haxjw. 175; 4 Lilt. 201: Leave may be granted to amend the prayer after hearing ; 4 Desalts. 330. And even at the hearing, a formal charge of fraud was allowed to be inserted ; 4 Desans. 480. And, sometimes at the hcarmg, the prayer may be amended to make it more consistent with the case ; 1 Dan. Ch. Pr., Perkins Ed. 480; 4 Desans. 330; 1 Johns. Ch. 184. But a vendee of land filing his bill to rescind, cannot amend his prayer so as to ask a spe- cific execution, to the injury of a sub- sequent purchaser ; 2 B. Monroe, 196. Whether a Bill of Discovery can be converted into a Bill for Re- lief ; and vice versa. See 1 Dan. Ch. Pr., Perkins Ed. 463, and Ca- ses there cited. Anciently, no Amendments to a Bill at all were al- lowed, and the complainant had to be- gin de novo, or make a new case in his Replication ; but now, under an order to amend, the complainant may entirely change his case, and make the bill a perfecdy new or inconsist- ent one; Cooper 141; 2 L. S^^ S. 113; 12 Conds. Eng. Ch. Rep. 466. But See 1 Ediv. 46; 10 Pick. 123. If a new title be set up in an amend- CHANCERY. 603 Original Bills. to have the remainder, being 282i) acres ; and deeds of release were accordingly executed by them mutually, on the 23d of May, 1809. And your Orator and Oratrix further represent, That said J, S., well knowing that he could not hold said lands against said D. T. and said locator's fees, was anxious to find some person to whom he could ed Bill, it is a new suit, so far as re- gards the Statute of Limitations ; 1 McLean, 11. No Amendments are allowed, ex- cept on leave of the Court ; 1 Dan. Ch. Pr., Perkins Ed. 468 ; 4 Johns. Ch. 170: 3 Paige, 78; 7 GUIS,' Johns. SG9. See Rule 28th, Equity Practice, Supreme Court United States, 1842. If the complainant files a Replication after he is apprised of the necessity of an Amendment to his Bill, he precludes himself from making such amendment; 4 Paige. 121. The application to amend should be made as soon as the neces- sity for an Amendment is discovered ; 1 Paige, 424. After demurrer al- lowed to the whole Bill, the bill is so completely out of Court, that no Amendment can take place ; but the Court, on argument of the demurrer, often allow amendments ; 3 Paige, 440 : 4 Hen. <^' Mm]f. 475 ; 3 Paige, 505 ; 2 niason, 342 ; 1 Pibb, 483 ; Ca7n. ^- Nor. 239, 264; Cam. ^^ Nor. 520. Amendments are allow- ed in Courts of Appeal, if necessary, to let in the whole merits of the case ; 9 Crunch, 122 ; 4 Desans. 65 ; 1 MCord, Ch. 226 ; 3 Bland, 407. Where a decree of the Court of Common Pleas is reversed on Bill of Review in that Court, and the case is then appealed to the Supreme Court, the plaintiff may file in the Supreme Court, an amendment to the Bill of Review, in the nature of a Bill to impeach the decree for fraud; 12 Ohio, 351. Amendments may be allowed without prejudice to an Injunction ; 3 Dick. 536 ; Eden on Injunctions, 120, 148 ; 2 V. 4' B. 102. See 6 Johns. Ch. 81 ; 1 Bland. 184 ; Bev. Eq. Pep. 326 ; 4 Hash. C. C. 174; 1 Johns. Ch. 202. Injunction falls by amending the Bill, unless express- ly saved ; 24 Fes. 101. In England, if the Amendment extend in any one place to one hundred and eighty words, or two folios, a new engross- ment is necessary ; or, if the Bill has been so often amended, that the Amendments to be inserted, though under two folios, cannot be interlined upon the record, or are so considera- ble as to blot and deface it, a new en- grossment must be made ; Hinde, 23 ; 12 Conds. Eng. Ch. Rep. 459. If there be not much new matter to be introduced, it is to be done by inter- polation ; 4 Johns. Ch. 170; 2 Ball <^' Beatt. 225. You may amend by interhneation if you can ; 12 Conds. Eng. Ch. Rep. 459. But See 3 Wash. C. C. 354, where it is held that the Amendment should be by a separate Bill, and not by interlining the original Bill. See, also, 2 Paige, 159; 3 do. 82. The complainant may set forth in the amended Bill all the charges of the original Bill ; 1 Hogan. 24. Contra, 3 Bland, 921. See 4 Johns. Ch. 170. By Order of Court in England, a new subpoena is not necessary if the amendment be before answer ; Miter, if after an- swer ; 1 Ban. Ch, Pr., Perkins' Ed. 487. In New York a new subposna is not necessary, and the practice is to enter an order of course for the de- fendant to answer in the usual time ; 3 Paige, 294 ; 6 do. 655. Amend- ment of the Bill, after answer, on leave of the Court, requires no new G04 CHANCERY Original Bills. sell the whole tract, for a valuable consideration, and bona fide as to the purchaser; and accordingly, in the fall of 1811, the said J. S. met with the said L. B. and W. S. B., then residents of said Com- monwealth of Maryland, and strangers to the said J. S., and who Jiappened to be in said State of Ohio on other business, and there- process ; the defendant being already in Court is bound to take notice of its Order; 1 McLean, 514. But the practice is otherwise as to supplemen- tal Bills ; G Paige, 655. XII. Parties : Mrst—Wno may suk. Second — Who may be sued. Third — Necessary Parties. Fourth — Objections for avant OF Parties, and Misjoinder, How taken. JF^rst — Who may sue. As a gen- eral rule all persons may sue. One State of the Union may sue another, or the citizens thereof, in the Su- preme Court of the United States ; Const. U. S. Art. III. §2 ; 3 Slory, Const. U. S. §1675, 1683 ; 4 Dallas, 1; 5 Cranch, 115; 1 Pet. 110; 9 Wheat. 857 ; 7 Pet. 51 ; 5 Peters, 284 ; 13 Peters, 23; S. C. 14 Peters. 210; 3 HalVs Law Jour. 197. Rights purely p\ibllc are to be enfor- ced, in the name of the State, or the officer entrusted with the conduct of public suits ; 6 Ohio, 101. For ca- ses of Public Charities, Idiots and Lunatics, See, 2 Kent, 288, note (a) 5th Ed; 1 Hoff. Ch. Pep. 202; 4 Kent, 508, note (b) 5fh Ed ; Story's Eq. PI. §64,65; 1 Johns. Ch. 600; 2 Johns. Ch. 242, 246 ; 6 Randolph, 584; 1 Aik. 84; 'Swan's (Ohin) Stat. 565 ; 9 Ohio, 203 ; 7 Johns. Ch. 139. Where a Rail Road Com- pany abuses its corporate powers, the interposition of individuals, it seems, is not countenanced ; 8 Ohio, 38. Nor can a supervisor of high- ways by injunction prevent the re- moval of stone and gravel from a public road, though such removal would be likely to give the public great inconvenience ; 5 Ohio, 187. As to relief against a lunatic's own acts. See, 1 Story's Eq. Jur. §225, 227; 5 Barn, and Cressic. 170; 5 Pick. 431 ; 4 Co7m. 203 ; 3 Day, 90 ; 15 Johns. 503 ; 13 Mass. 412; 1 Johns. Ch. 600. Where relators are necessary ; J^ord Bed. 18 ; Ver7i, 277, 370; 1 Pro. P. C. 222; 2 Ves. Jun. 247 ; 3 Pcav. 447 ; 4 M. 4- C. 462 ; Story's Eq. PL §8 ; 1 Sinith Ch. Pr. 99; 2 Madd. Ch. 203 ; 1 Dan. Ch. Pr., Perkins' Ed. 14. Foreign States may sue in the Courts of the United States ; Const. U. S. Art. III. §2; Story Eq. PL §55. The Sovereign in one Coun- try can sue in the municipal Courts of another ; 4 Puss. 225 ; See, 1 Da7i. Ch. Pr. Perkins, Ed. 22 ; 1 McCord, 80 ; 2 Kent, 285, note, 5th Ed ; 5 Sim. 596 ; Ed. on Parties in Eq. 33 ; Calvert on Parties, 310, 311 ; Story Eq. PL §55; 3 Wheat. 324. Corporations, foreign and do- mestic, may sue in their corporate names, in Chancery as well as at Law; 2 Am/, 284 ; 4 Joh7is. Ch. 372; 2 Galliso7i, 105; 8 Wheaton, 464 ; 8 Bar7i. and Cressw. 427 ; 8 Si77i. 246 ; Story's Eq. PL §55 ; 2 Bland, 99 ; 1 Dan. Ch. Pr. Perkins Ed. 28, and cases there cited. Per- sons residing out of the Jurisdiction may sue, unless alien enemies ; Sto- ry's, Eq. P/. §51 ; 1 GaL 366 ; 10 Johns. 183 ; 1 Dallas, 69 ; 1 Johns. Ch. 208 ; 1 Vetcrs, C. C. 106 ; 6 Litt. 226 ; 1 Blackf. 255 ; 1 1 Mass. 119; 11 Mass. 26; 12 Mass.S; 2 Johns. Ch. 508: See, 10 Joh7is. 69; 6 Binney, 2^1. But non-resi- dents must give security for costs ; CHANCERY. 601 Original Bills. upon a contract was entered into for the purchase of said lands, to be completed shortly afterwards in the City of Washington, as here- inafter set forth, the said L. B. and W. S. B. being then, and until their death, wholly ignorant of any incumbrances on said lands : That soon after the making of said contract, the said J. S. and the said L. B. and W. S. B. met in said City of Washington, and there consum- 1 Paige, 644 ; 2 Edwards, 217 ; 3 Johns. Ch. 520; 1 Hayes, 173 ; 1 Dana, 477 ; 1 Hodges, 23 ; 1 Ves, 396 ; 2 Paige, 603 ; 1 Edwards, 439; 1 Hogan, 12. As to what makes one a resident : See, 2 Paige, 603; 2 Wend 258 j ^ DowL P. C. 499 ; 1 Smith Ch. Pr. 555 ; Gra- ham^s Prac. 505. But application for security must be made at the earhest possible time ; 2 Ves. 24 ; 10 do. 287 ; 3 Johns. Ch. 520 ; 2 Moll. 464 ; 3 Metcalf, 58 ; 3 Greenl. 216. But See, 1 Edwards, 449; where it is held the application may be made at any stage of the cause, under the Statute of New York, if the complainant was a non-resident at the commencement of the suit, and continues so. As to what con- stitutes a residence. See, 1 Smith, Ch. Pr. 555. An absence of eight- een months will not be regarded as mere temporary ; 2 Howl, P. C. 409. Even though it is sworn that the party is soon expected; 2 Wend. 258 ; 2 Paige, 603. An alien does not lose his right to sue in the Courts of the United States by residing in one of the States of the Union ; 7 Pet. 413. As to Suits in forma pauperis, Suits by Aliens, Bankrupts and In- solvents, See 1 Dan. Ch. Pr. Per- kins' Ed. 41, 51 ; 1 Paige, 180; 3 do. 387 ; Story's Eq. PL § 50 ; 1 Paige, 39 ; 1 do. 588 ; 3 do. 273 ; 5 do. 58 ; 3 Johns. Ch. 65 ; 7 Pe- ters, 413 ; Story^s Conf. Laws, § 542 ; 1 Peter's C. C. 106 ; 3 Wash. C. C. 484 ; 2 Johns. Ch. 508 ; 2 Gallison, 105.; 10 Johns, 117; 9 Cranch, 180 ; Story's Eq. Pi. §495, 726, 349 ; 7 Paige, 287 ; 9 Wend. 649. An ahen friend may maintain a Bill of Discovery in aid of a suit in a foreign country ; 1 Paige, 287 ; Story's Eq. Jur. § 1495 ; Story's Eq. PI. § 53. Infants must sue by their next friend ; Story's Eq. PL § 57 ; 10 Paige, 235 ; 2 Edw.202 ; 2 Tyler, 44. The fact of Infancy must be alleged in the Bill and pro- ved, or admitted by the Answer ; 6 Gill 4- Joh7is. 25. See 5 Ohio, 227; 3 Black/. 472. Any person may institute a suit on behalf of an Infant; I^ord Bed. 21 ; Story' s*Eq. PL § 60. And without his knowl- edge or consent ; Story's Eq. Pi. § 60 ; 1 Paige, 178. But the Court, by a Master, may inquire whether the suit is for the benefit of the In- fant, and if not, will stay proceed- ings ; lb. The general Guardian cannot file a Bill in his own name to recover the property of his wards ; he 'must file it in the name of the In- fants as their next friend ; 10 Paige, 235. If two or more suits are insti- tuted by different persons, the Court will direct a Master to inquire which suit is most for the benefit of the In- fant ; Lord Red. 21 ; Story's Eq. PL § 60. Prochein amy may be re- moved for not performing his duty ; 1 Jac. 8,' Walk. 482. Where the next friend was a person in low cir- cumstances, and of immoral charac- te, and there was reason to suppose that he had instituted the suit from spite against one of the defendants, the Bill was ordered to be taken off the file, with costs to be paid by the 606 CHANCERY. Original Bills. mated the bargain as follows: The said J. S. made an absolute deed, in fee simple, to the said L. B. and the said W. S. B., and they paid him, in cash, .'1 2500, and executed a mortgage on the same premi- ses, to secure Three notes, one for $ — , due November 1, 1812; one for % — , due Nov. 11, 1813 ; and one for ^ — , due November 11, 1814; in all $ —. next friend ; 3 Bland, 234. Neitlier the next friend nor his wife can be a witness in the case ; 3 ^tk. 51 1 . But See 2 Johns. Ch. 614. The next friend may be discharged in or- der to be examined as a witness, and another appointed in his place ; 3 Edw. 311; 2 Bland, 544. The suit is not abated by the Infant's com- ing of age, and he may elect wheth- er he will proceed with it or not ; if he goes on with the cause, all future proceedings may be carried on in his own name, and the Bill need not be amended or altered : but he will be liable to all the costs of the suit, in the same manner as if he had been of age when the Bill was filed : if he choose to abandon the suit, he may move to dismiss it on payment of costs by himself, but he cannot com- pel the procliein amy to pay the costs unless it be established that the Bill was improperly filed ; 2 Madd. 468; Prac. Reg. 225; 1 Dan. Ch. Pr. Perkin's Ed. 100 ; 2/'mge,79; Story's Eq. PL § .59. Costs "^in ev- ery instance must be paid by the prochein amy where there is no foun- dation for the suit ; 3 Hayw. 123 ; Story's Eq PI. § 59. A person in dotage, or an imbecile adult, may sue by next friend ; Lord Red. 23 ; 1 Bland, 373 ; Owing's case, /(/. 370 ; 13 Mass. 412 ; Story's Eq. PI. § 66. A married woman cannot sue without her husband ex- cept under certain circumstances ; as where the husband is civilitcr mor- tuus ; or transported for life ; or ban- ished ; or is an alien abroad ; Roper on Husband ^' Wife, 211 ; 1 Dan. Ch. Pr. Perkins' Ed. 110 ; 1 Aik. 174 ; 2 Dessaus. 244 ; 7 Comi. 420 ; 2 Haytv. 406 ; 2 Kent, 154, 155. Where the husband had never been in the United States, and had desert- ed his wife in a foreign country, and she came here and maintained her- self as a feme sole, she Avas held en- titled to sue and be sued as a feme sole; 15 ilittss. 31. And if the hus- band leave the State, without the in- tention of returning, the wife is com- petent to contract, to sue and be sued, as if she were a feme sole ; 4 3fCord, 148 ; -S". C. 1 Hill, 8. For other authorities on this point. See 6 Pick. 89 ; Story's Eq. P/. § 61 ; 2 Browne, 193; 1 Pet. 105; 16 Johns. 286; 4 Mefcalf, 478. The wife must in all cases be a party to a suit for her own estate ; 2 Kent, 138 ; 10 Pick. 47; 13 TFend. 271; 5 Stew, fy Port. 133. See 5 J. J. Marsh, 180; 7 Vermont, 369; ^ Johns. Ch. 196; ^ J. J. Marsh, 50; 2J. J. Marsh, 546; ALitt.18; 14 Pickering, 352 ; 22 Pick. 480 ; 6 Met. 543. In a suit for the wife's debt, lega- cy, or portion, the Court will see that a reasonable provision out of it is made for the maintenance of herself and children ; Clancy on Rights of Women, 474 ; 2 Story's Eq. Jur. § 1414 ; 6 Paige, 366 ; 2 Kent, 141 ; 4 Gill ^- Johns. 282; 6 Metccdf, 543 ; 7 Dana, 106 ; 1 Dcsaus. 567 ; 2 Hill, Ch. 104 ; 9 Watts, 90 ; 1 Bailey Eq. 24 ; 2 Bland, 545 ; 2 M'Cord,'Sm; 3 Hen. ^' Munf. 144. In such cases Chancery will interfere on a Bill filed by, or on behalf of the CHANCERY. 607 Original Bills. And your Orator and Oratrix further represent, That on the — day of — , 1812, and shortly after said contract was consummated as aforesaid, the said W. S. B. then a Lieutenant in the Naval Service, was killed on board the Frigate Constitution, unmarried, and without issue, having first duly made his last Will and Testament as hereinaf- ter set forth ; that after his death the whole burden of meeting the Wife; 4 Paige, G4. Or on Peti- tion ; 6 Mctcalf, 543. And such Bill or Petition may be filed against the assignee of an insolvent husband before distribution ; 9 Ves. 87 ; 5 Johns. Ch. 464; 4 Paige, 64; 5 Monroe, 341 ; 1 Hof. Ch.Iiep. 462 ; 2 Kent, 138 ; 2 Story's Eq. Jiir. § 1411 ; 9 JValts, 509; Ex parte Beresford, 1 Desaus. 263. A wife may, in a Court of Equity, sue her husband, and be sued by him ; 2 Story's Eq. Jur. § 1368, 1414; Story's Eq. PL ^ 61 ; 5 /. J. Marsh, 230; 6 Paige, ''6m; 5 Paige, bS\. But the wife must sue by her next friend ; Lord Red. 22 ; 5 Paige, 751. Where two persons have a com- mon interest in obtainmg relief against a joint contract, and one of them refuses to join with the other in a Bill to obtain such relief, the proper course is to make him a de- fendant ; stating such refusal as an excuse for not lYiaking him a com- plainant: and if the Bill does not state such excuse the other defend- ant may demur; 9 Paige, 197. If one's interest is likely to be affected by a suit in chancery, it is his riglit and duty to make himself a party, by petition, in nature of Bill of In- terpleader; 2 /. /. Marsh. 374. And the complainant may be com- pelled to amend his Bill to bring the whole case before the court; 3 Marsh. 217. Second. — Who may be sued. As a general rule, all bodies poli- tic and corporate, and all persons whatsoever who are in any way in- terested in the subject matter of liti- gation may be sued. No direct suit against the United States can be maintained, without an act of Con- gress, nor can any judgment be len- dered against them for costs ; 2 fFash. C. C.Wl; 3 Hall, Law J. 128 ; 6 TVlicat. 41 1 ; 8 Peters, 444. But if an action be brought by the United Slates to recover money in the hands of a party, he may by way of defence set up any legal or equitable claim he has against the United States, and need not, in such a case be turned round to an applica- tion to Congress ; 15 Pet. 377. See also, 6 TVhcat. 135; 7 Pet. 16; 8 do. 163; 8 do. 436; 8 do. 319; 10 do. 125; 9 Wheat., 651. A Bill may be filed, under a special Act of the Legislature for that purpose, to take an account on a public contract, and a decree rendered against the State for the amount found due ; 8 Ohio, 315; 11 do. 501; 12 do. 496. Where the sovereign of a for- eign country sues here, a Cross Bill may be filed against him ; 2 Bligh. N. -S. 47; 1 Dan. Ch. Pr. Perkins' Ed. 176. A corporation must be sued by its corporate name ; 2 Bland, 99. It is a common practice to make indi- vidual members of a corporation par- ties to a suit, in order to compel a discovery on oath of the matters charged in the Bill; L"rd Red. 148, n. (/) ; 11 Sim. 305; 1 Ves. Jim. 293 ; i Johns. Ch. 366. So, Book- keepers, or any officer supposed to have a knowledge of the facts; 2 Eq. Ca. Mg. 78: 9 Paige 188; Story's Eq. PI. 235. See, also, 14 608 CHANCERY. Original Bills. deferred payments fell upon his brother, the said L. B., but how much he did in fact pay is unknown to your Orator and Oratrix, but they suppose, and so cliarge, tliat it was ,^500, or thereabouts ; and the said L. B. not being able to pay the installments as they fell due, and being pressed by the said J. S. for payment, he desired the said J. S. by letter, to procure some one to purchase said lands, and on the 30th Ves. 251 ; 6 Paige, 239 ; 5 Ves. 322; 7 do. 287, Perkhis', n. {a) ; 1 ^la. (N. S.) 379 ; 18 fVoid. 239. But Avhere an officer is made party for a discovery, no relief should be prayed, against him ; otherwise he may put in a full defence ; 6 Paige, 239. So, forni^er officers of a corpo- ration ; 1 Paige 219. Arbitrators may be made parties to set aside their award ; Lord Red. 1G2; Sto- rifs Eq. PL § 231, 232; Story's Erj.Jur.§ 1500; 1 Ves. Jun. 451. Attorneys at Law engaging in fraud- ulent transactions for their clients are properly made parties ; 1 Dan. Ch. Pr. Perkins' Ed. 345 ; Story's Eq. PL § 232, 838 ; 14 Ves. 273. But a mere witness cannot be made a party; 10 Paige 580; 5 do. 251; Iflgrani on Discovery § 235 ; Hare 65; 3 Story's Eq. Jur. § 1499; Story's Eq. PL § 234, 519, 734; 7?. M. CharL 294; 7 Ves. 287. Nor a Sheriff or other officer who may have an execution in his hands for collection ; 14 Ohio 445. Nor should any one be made a party against whom there can be no de- cree ; 3 P. JVms. 311 ; Story's Eq. PL § 231 ; 6 /. ./. Marsh. 432. A married woman cannot defend without her husband, unless he is an exile, or has abjured the realm ; Lord Red. 23. See, Ante. 606. Also, 2 Story's Eq. Jur. § 1368 ; Story's Eq. PL §71; 2 Kent 154; 1 Hill Ch. Rep. 8. If a married woman obstinately reAises to join in a defence with her husband, the hus- band may be allowed to defend him- self, and the complainant must pro- ceed separately against the wife ; 1 Dan. Ch. Pr. Perkins' Ed. 192 ; 1 Paige 421. If the wife be absent, the husband may obtain time to is- sue a commission to obtain the wife's oath to the answer ; and if she re- fuse to answer, the Bill may be ta- ken pro confcsso against her ; 1 Paige 422. But the complainant may stipulate to receive the joint an- swer, sworn to b}'' the husband alone; lb.; 6 do. 654. If a feme sole marries after suit brought against her, the suit does not abate ; the marriage is to be suggest- ed, and the case proceeds in the name of the husband and wife ; 5 Paige, 34. An answer of a wife, put in separately, without a previous order, may be suppressed for irregu- larity ; 1 John. Ch. 24 ; 1 Paige, 421. If the wife apprehend that her husband will not make a proper defence for her, she may, as of course, obtain leave to answer sepa- rately ; 2 Johns. Ch. 139 ; 1 Bland. 270. A wife cannot be compelled to make a discovery which may ex- pose her husband to a charge of fel- ony ; 8 Ves. 405 ; Story's Eq. PL § 519. Nor to discover the hus- band's vouchers; 15 Ves. 150. See 2 T. R. 263; 2 Darn, i^- ^doL 639 ; 6 3faide ^- Sel. 194. See, also, 1 Phil. Ev., Cowen & Hill's Ed. 78, 79; Story's Eq. Jur. § 1496; 3 Ves. cV Bea. 165. Idiots and Lunatics may be sued, but they defend by their Committee; or if the Committee be interested, the Court will appoint a Guardian to defend for them ; 14 Ves. 172 ; 3 Ediv. 311 ; 3 Bland, 184 ; 3 Bland, 486 ; 1 Bland, 373. In New York CHANCERY. 609 Original Bills. of December, 1814, the said J. S. wrote as follows to said L. B. : — L. B. Esq. — Dec. 30. 1814. Dear Sir. Agreeably to your request, &e.- And your Orator and Oratrix further represent, That shortly after the above letter was written, the said L. B. was taken ill, and on the — day of — , 1815, died, intestate, leaving two children, his only heirs at Lav/, S. E. B. nine years of age, and your Oratrix M. B. three years of age, both of whom have always resided in said Com- monwealth of Maryland, at a great distance from said lands and from the residence of said J. S. it is not necessary to make the Lu- natic a party to a 13111 for the pay- ment of his debts, but his Committee only; 2 Johns. Ch. 242; 3 Paige, 470; See 6 Pcda;e, 237; G Ves. 171 ; 4 Wash. C. C. 202; Story's Eq. PL §70. Infants may also be sued in Equity, and the Court appoint a Guardian ad litem to make defence and manage the case in their behalf; Lord Red. 23. It is error to decree against Infants, until a Guardian ad litem be appointed, accept the ap- pointment, and either appear or be served with process ; 3 Ohio, 355 ; 7 Ohio, 198, Part 1st. It has not been a general practice in Ohio, to serve process on Infants ; 8 Ohio, '611 : See 2 3Iunf. 129 ; 3 ^. K. Marsh. 143; 6 Mtm/. 99 ; 1 Litt. 153; 3 Blbh,h'Zh. In New York the appearance of an Infant is enter- ed by his Guardian ad litem ; who is appointed bjr the Court on Petition for that purpose ; 1 Barbour Ch. Pr. 83 : See, Storifs Eq. PL §70 ; 9 Paige, 255 ; 2 A. K. Marsh, 167; 2 Stewart, 214. Process should be served on the Infant, and a Guardian ad litem appointed by the Court ; 1 McLean, 74 ; 1 Ma. 379 ; 6 J. J, Marsh. 45. In Alabama there must be a decree of the Court appointing a Guardian ad litem or his acts v/ill not he valid; 3 Porter, 10. If the Guardian ad litem appears it is not necessary for process to be served on the Infant ; 2 Marsh. 187. The Court will not appoint a person Guardian ad litem, on the nomina- tion of the complainant ; 2 Paige, 304. Infants over fourteen years old should be consulted in the ap- pointment of a Guardian ad litem, if that course would not be attended with too much trouble or expense ; 1 Ma. 379. The acceptance of the Guardian should appear of record ; 5 J. J. Marsh. 49. Courts may ap- point Guardians ad litem to non-resi- dent Infants ; 6 J. J. Marsh. 45 ; 3 Beav.lO; 1 .^/«. 379. And may provide reasonable compensation for Guardian ad litem', lb. See 7 Paige, 523. Infants need not appear in Court personally in order to have a Guardian ad litem appointed ; 1 Marsh. 613; 2 Marsh. 167. If a Guardian ad litem neglects to make proper defence, the proceedings against the Infant are valid, and the Infant has his redress against the Guardian ; 1 Marsh. 398 ; 2 Marsh. 167. The Guardian is liable in dam- ages to the Infant for neglect ; 2 PajVe, 304; ^ Edw. ^U. Audit is the duty of the Court to see, that the rights of an Infant are not preju- diced or abandoned by the Answer of the Guardian ; 7 Gill ^ Johns. 191. Persons of weak intellect may defend by Guardian ; 1 Dan. Ch. Pr. Perkin's Ed. 224. A female defendant, above sixty years of age, who had been deaf and dumb from her infancy, was admitted to appear and defend by Guardian ; 4 Johns. Ch. 168. As to suits against Bank- 77 610 CHANCERY. Original Bills. And your Orator and Oratrix further represent, That on the 3d of August, 1819, about four or five years after the date of said J. S's let- ter, the said D, T. filed his Bill in Chancery against the said J. S. ; and others charging said J. S. with fraudulently setting up a claim to three fourths of said Section, when in truth he well knew that said D. T. was the owner of 2250 acres, and charging that said J. S. had un- dertaken to sell said lands to the said L. B. and W. S. B. as innocent purchasers, without notice ; and further charging that said mortgage was unpaid, and so he the said D. T. was entitled to his share of said lands: and to this Bill the said J. S. put in his Answer on the -f- day of December, 1819, denying notice, fraud, Joint tenants of a legacy ; 2 Ch. Ca. 124: See;, 3 /. J Marsh. 301 ; 7 Greenl. 31 ; 1 Sim. S,- Stu. 423; 3 Vermont, 160; Story's Eq. PI. §201. ' And a residuary "legatee seeking an account and share of the residue, must bring before the Court all the parties interested in that resi- due. 3 Bro. C. C. 365: See 16 Ves. 328; where this rule is said to have exceptions. See also, 4 Johns. Ch. 199, and 3 Johns. Ch. 553 : where it is held that in case several legacies are given, which are to be increased or diminished, as the estate ir creases or diminishes, one legatee may file a bill in behalf of himself and the other legatees who may ' choose to come in, against the execu- tors for an account and. payment: but where the Bill is for the residue, all the residuary legatees must be made parties. But in other cases it is held that one residuary legatee may sue in behalf of himself and all others, without making them techni- cally parties; 3 Paige, bill; 1 do. 416; 2 do. 19: See 2 Ma son, 181; I Paige, 253; 4 Bibb 266 ; 3 Miaif. 29 ; 2 iMunf. 148 1 Dev. Eq. 463 ; 1 Dev. Eq. 354 1 JDev. 4- Bat. Eq. 610; 6 /, J. Marsh. 432; 3 Br. Ch. Pep 191, Perkins' Ed. Though where there are several legacies each may sue for his own ; lb. And where a legacy is given to A. & B. in equal moieties, a Bill will lie by A. for his moiety without ma- king B. a jjarty; 3 Young and Coll. 578. All having a legal estate are necessary Parties ; Lord Red. 145 ; Story's Eq. PL §201,209; 1 Paige, 20; 2 Johns. Ch. 238-; 2 Bibb, 184 ; 5 Dana, 341 ; 1 Dan. Ch. Pr. Perkins' Ed. 241. So the heir of mortgagee ; 3 Puss. 476 ; 4 Kent, 186; Story's Eq. PL §74, 200; 2 Hen. <$• Munf. 6; 5 Conn. 133. But the executor, and not the heir, must file a Bill to foreclose ; 5 Conn. 133. But where the legal estate is devised, or assigned by the mortgagee in his life time, the last asignee only need be made a party ; 2 Ch. Cas. 32; 2 Edw. 127; 3 Ves. 314; 7 Johns. Ch. 144; Story's Eq. PL §189, 191 ; 1 Sandf. 76. As a general rule all incumbrancers, prior as well as subsequent, are proper, if not indispensible Parties to a Bill of foreclosure ; 1 Dana, 23 ; 4 Kent, 612 CHANCERY. Original Bills. Chancery, the said J. S. then and long before knowing that said D. T. was about to proceed against him, also filed his Bill in this Honor- able Court to foreclose the said Mortgage, making the said W. S. B. (who had long been dead) and the said S. E. B. and M. B. children and heirs of said L, B., together with one T. D. charged to be admin- istrator of said L. B., parties defendants, by newspaper publication merely ; and without any guardian ad litem, and without any actual notice whatsoever, the said J. S. at the March Term of this Honora- ble Court, in the year 1821, obtained a pretended decree for the sale of said mortgaged premises ; and in pursuance of said decree the said lands were offered for sale, and the said J. S. himself bought in 2000 acres of the south side of the tract, still leaving a considerable balance due on said mort^afje. 184, 5th, Ed ; Sfory's Eq. PL 193, 200 ; 1 Sandf. 76 ; 7 Paige, 544 ; 6 Johns. Ch. 450 ; 1 1 Wheat, 304 ; 1 Hogan, 308; 1 Hopk. ^11; 7 Monroe, 476 ; 1 Bailey Eq. Rep. 479 ; 1 Ala. (N. S.) 598 ; 1 Clarke, 432 ; 5 Conyi. 133 ; 2 Hen. 8,- Miinf. 6; 3 Johns, C/t. 459 ; 1 Johns. Ch. 144. And this rule holds in suits by second mortg-agee; 1 Dan. Ch. Pr. Perkins' Ed. 261 ; Stonfs Eq. PI. § 84, 186, 195 : See, 4 Kent, 185; 4 Johns. C'/t. 049. Posterior Incumbrancers, who are not parties, are not bound by the decree, even though the mortgagee, at the time of the foreclosure, had no notice of the existence of such incumbrances; 1 Eq. Cas. c^6. 318 ; 4 Kent, 184 ; Story's Eq. PI. § 193: 3 .Johns. Ch. 459 ; 5 Conn. 544 ; 1 Hopk. 277. See 1 Dan. Ch. Pr., Perkins' Ed. 324; 20 Wend. 2G0; 4 Conn. 344. In 2 Eq. Ca. Mg. 632, it is said, that where an estate is charged with several incumbrances, one Incum- brancer may sue without making' the rest parties ; at least it is cured by a Decree directing an account to be ta- ken of all the mortjjages and incum- brances that affect the estate. See also 4 Conn. 344. The assignee of a note not negotiable may sue the maker in Equity; 11 OAio, 21 ; 2 Story's Eq.Jur.\\0b7 ; Story's Eq. P/. §153; Contra, 9 e, 29 ; Qdo. 470; 5 do. 283. Equity will not relieve after a verdict where the de- fendant at Law might probably have defended himself there ; 2 Sivanst. 229. See 7 Cranch, 332 ; 2 Johns. Ch. 230. Nor where a party has neglected to make his defence at Law ; 3 Ohio, 278 ; 8 do. 43 ; 2 do. 7, 20, 22, 23 ; R. M. Charlt. 93 ; 2 Johns. Ch. 230 ; 4 Rand. 553. Nor where the cause has already been de- cided by the proper tribunal ; 1 Sch. 4-Ze/.'204; 3 Ohio, 268; 4 do. 469 ; 6 do. 182 ; 1 do. 429 ; 4 do. 327; IHen.&i'Munf.om. Norbe^ 628 CHANCERY. Original Bills. rendered in favor of the plaintiff in the year 1832, as hereinafter set forth. And your Orator and Oratrixes further represent that the said J. A. deceased, in preparing to defend said action of Ejectment found in his own hands all the deeds of conveyance above-mentioned, (one of which being imperfectly executed as hereinafter set forth, con- pleading, or in the conduct of the cause, or merely to let in new cor- roborative evidence ; 14 Fes. 31 ; 3 Ban. Ch. Fr. Perkins' Ed. 1842; 1 Jofms. Ch. 320. Error in fact is good ground for an Injunction ; 8 fFheat. 174 ; S. C. 1 Pet. 1. Otherwise Errors in Law ; 1 V. 4' B. 23. See Leg. Obs. March, 1845, p. 1845, where the English cases are collected ; Amer. Jurist, No. 45, p. 146. But See 18 Wend. 407 ; 1 Sug. Vend. 81, n. 1 ; Id. 186, 282 ; 1 Br. Ch. Rep. 84, 85 ; 6 Paige, 189 ; 4 Bana, 309 ; 1 Ohio, 524; 4 do. 175; 11 do. 480 ; 15 do. 152 ; 2 Bibb, 322. The general Rule is that where a party, by fraud, accident, mistake, or otherwise, has obtained an advantage in proceeding in a Court of ordinary jurisdiction, which must necessarily make that Court an instrument of in- justice, a Court of Equity will inter- fere to prevent a manifest wrong, by restraining the parly whose con- science is thus bound, from using the advantage he has there gained ; Lord Red. 103 ; Eden, on Injunc. 4, 41 ; 3 Ban. Ch. Pr. Perkins' Ed. 1843, 1878 ; 4 Ohio, 175 ; 2 J. J. Marsh. 513 ; 7 Crunch, 332 ; 4 Be- saus. 176 ; 2 Johns. Ch. 430 ; 2 Story's Eq. Jur. § 1320 ; 4 Johns. Ch. 423. See 15 Vermont, 78; 8 Gill ^ Johns. 340 ; 4 Hen. c^- Mimf. 427. The Injunction is not confined to any one point of the proceedings at Law ; but may be granted at any stage of the action ; as to stay trial ; 10 Ves. 144; 2 Sivanst. 234; 3 Ban. Ch. Pr., Perkins' Ed. 1844. To stay the entering up of Judgment ; 1 J. 4^ fV. 290. After judgment to stay execution, or, proceeding under execution, or, to slay money in the hands of the Sheriff, or, to stay delivery of possession, if it be a writ of posses- sion ; Eden on Injunct. 44 ; 2 Root, 109 ; ^Ban. Ch. Pr. Perk. Ed. 1844. No one can enjoin a judgment at Law to Avhich he is not a party ; if such person be aggrieved, he should pray an injunction to the execution ; 3 Rand. 501, A judgment may be enjoined in part, and be allowed to proceed for the residue; 4 Mason, 349; 6 Gill cf Johns. 122; 1 Sum- ner, 89. Suits at law m Ireland, Scotland, Demerara, and other coun- tries may be enjoined, in England, by an order or decree in personam ; Story'' s Eq. Jur. § 899 ; Eden on Injunct. 176 ; 5 Ves. 71 ; 3 do. 170. See, 1 Hopk. 213 ; 2 Paige, 404, 606 ; 4 Cr cinch, 179 ; 7 ^/o.'279 ; 8 Paige, 440 ; 1 Tenn. 266 ; 2 Sto- ry''s Eq. Jur. § 900. Courts of the United States cannot enjoin pro-^ ceedings in the State Courts ; nor vice versa ; 4 Cranch, 179 ; 7 do. 279; 1 Kent Com. 409. Where the person is within the jurisdiction of the Court, a specific performance may be decreed of lands lying in an- other State ; and in such case the Court can order a deed to be made in conformity with the laws of the State where the lands lie ; and if the de- fendant be an infant, the Court will enjoin him from anj?^ disturbance of possession, and from putting any in- cumbrance on the property ; 9 Paige, 282. See, 3 Brown Ch. Rep. 248 ; 8 Eng. Conds. Ch. Rep. 300. In some cases equity will pre- CHANCERY. 629 Original Bills. veying only an equitable title,) except the deed from the said J. M. the Patentee, to the said J. K., and that deed, after great and dili- gent search, could no where be found ; and for want thereof the said J. T. prevailed in his said action of Ejectment, and took posses- sion himself of said survey, and has retained it ever since by his tenants, and others claiming under him. vent a person from setting up an un- conscientious advantage at Law, so as to interpose impediments to just rights of the other party ; Eden on Injunc. 406 ; 2 Story'' s Eq. Jur. § 903 ; 3 Dan. Ch. Pr., Perkins' Ed. 1880. And will restrain repeated litigation of the same point ; 10 Ohio, 347 ; 3 Dan. Ch. Pr., Perkins' Ed. 1881. Equity seldom grants an In- junction directly to perform an act ; 11 Sim. 47. An Injunction also will be granted to prevent waste, or any thing in the nature of waste ; L'^rd Red. 136. See, 1 Johns Ch. 11 ; 2 Dessaus. 616 ; 1 Monroe, 65 ; 1 Dessaus. 166 ; 11 Conn. 51 ; 2 Hen. 4- Munf. 25; 4 do. 424; 1 Bland, 576; 5 Metcalf, 8 ; 6 Pick. 376 ; 4 Johns. Ch. 21 ; 8 Ves. 89 ; Swan's Stat. 710, § 38. Where the right is doubtful the Court will direct a trial, and, in the meantime, if there be danger of irreperable mischief, or if there is any other good cause of granting a temporary Injunction, it will be ordered so as to restrain all injurious proceedings; and where the plaintiff's right is fully established, a perpetual injunction will be de- creed ; 2 Story's Eq. Jur. § 925 ; 5 Metcalf, 126. See, 3 My. S,- Keen, 169 ; 6 Ves. 689 ; 3 Paige, 213 ; Wright, 603. An Injunction to stay Avaste pending a suit to try the right will not prevent the occupying ten- ant from making the ordinary uses of the land ; 1 Bland, 584. Where land without the timber is an insuffi- cient or scanty security, the mortga- gor in possession Avill be enjoined from cuttmg down the timber ; 5 Mad. 422; 1 Jac. <^- Walk. 581. See, 2 Johns. Ch. 148; 3 Edw. 246 ; 1 Monroe, 65. So an insolvent debtor, where his land has been at- tached in a suit at law; 11 Conn. 51 ; R. M. Charlt. 523. So in some cases of trespass where the mischief would be irremediable an Injunc- tion will be granted ; Eden on In- junc. 229, 234 ; 6 Johns. Ch. 497 ; 7 do. 315 ; 1 Bro. C. C. 588 ; 1 Paige, 97 ; 5 Ohio, 187 ; 2 Story's Eq. Jur. § 928 ; 7 Ves. 305. But an Injunction will not be granted to restrain a mere trespass, where the injury is not irreparable and destruct- ive to the plaintiff's estate, but is susceptible of perfect pecuniary com- pensation, and for which the party- may obtain adequate satisfaction, in the ordinary course of Law ; 7 Johns. Ch. 315 ; 6 Ohio, 166. See, 1 Johns. Ch. 318; 3 Paige, 213 ; 9 Gill <^- Johns. 468 ; 22 Maine, 211. Nor to enjoin the sale of slaves or other chattels, seized by fieri facias, on the apphcation of a third person claiming the property; 3 Monroe, 20. In nuisances, pubUc and private. Equity Avill sometimes interfere. In cases of public nuisance the ordinary course is for the suit to be brought in the name of the State, or the Officer entrusted with the conduct of public suits ; but individuals who conceive themselves aggrieved ma}'' come forward and ask the assistance of the Court to prevent a public nuisance from which they have individually sustained damage ; 2 M. ^- C. 123 ; a Dan. Ch. Pr. 630 CHANCERY. Original Bills. And your Orator and Oratrixes further represent that the title on which the said J. T. recovered in his said action was derived as fol- lows : — In examining the records of deeds in said County of — , he found no record of any conveyance, at all, from the said J. M. the Patentee, to the said J. T., and thereupon the said J. T. the said J. M. being dead, made some kind of contract with the heirs of said J. M. and afterwards, by a decree pro confesso, on publication of No- tice, in said County of — , obtained, as he supposed, the legal title, and thereupon commenced his said action of Ejectment. Perkins' Ed. 1858. See G Ohio, 101 ; 21 Pick. 344 ; 6 Jolms. Ch. 439. But the plaintiff must show a particular injury to himself distinct from that which he suffers in com- mon with the public ; 14 Conn. 565. In cases of private nuisance the Court will also interfere where the plaintiff shows the mischief to be irreparable ; as obstruction to ancient lights — di- versi)n of water courses — or injury to the banks of rivers ; Eden on In- Jimc. 270 ; Story's Eq. Jur. § 926 ; 3 Mer. 688. See 5 Melcalf, 8 ; 6 Paige, 83 ; 5 Metcalf, 1 18 ; 1 Rice Eq. Rep. 80; 7 Metcalf, 398; 2 Johns. Ch. 162; 2 do. 372; -S'. C. 3 do,. 282 ; 2 do. 463 ; 1 Pais^e, 197 ; 3 do. 577 ; 1 Hopk. 416 ; "S. C. 6 Johns. Ch. 19 ; 8 Paige, 351. Where one has the power and threat- ens to do the wrong, the writ of In- junction goes ; 5 Ohio, 139. But the danger must be imminent and the injury irremediable ; 1 ikZcZea??., 328. Injunctions are also granted to pro- tect copy-rights and patent-rights ; Lord Red. 138 ; 2 Story's Eq. Jur. § 930, 956 ; Eden on Injunc. 304 ; Phillips on Patents, 451 ; 9 Johns. 570 ; 4 Wash. C. C. 534. See 2 Mer. 29 ; 1 Paine, C. C. 441 ; 8 Paige, 'Z\; 8 Peters, 591: 1 Story r. 6\ 11 ; 2 do. 100; 5 Ves. 24; 8 Paige, 75. Also to restrain the transfer of negotiable paper ; I Russ. 412 ; 2 Story's Eq. Jur. ^ 953, 907 3 Dan. Ch. 'Pr., Perkins' Ed. 1871 Eden on Injunc. 341 ; 9 JVlieat. 738 1 1 Ohio, 462 ; 1 Cam 8,- Nor. 36 And to stay the removal of goods ob- tained by fraud until the right is set- tled ; TFright,Ql. Slaves claiming their freedom may have an Injunction to prevent their being carried out of the State, before the controversy is decided ; 2 Hen. ^' Munf. 19 ; 2 /. /. Marsh. 18. And where a negro man sued for his freedom, and a verdict was found by the jury for the defendant and that the plaintifi' was a slave ; but it ap- pearing that he was poor and igno- rant, and was not permitted in that suit by those who claimed him as a slave, to procure the proper testimony in support of his right, the Court awarded a new trial, and the jury having found that he was not a slave but a freeman, a perpetual Injunction was allowed against the former ver- dict ; 5 Munf. 95. See 8 Louisi- ana, 475 ; 14 do. 40i ; 3 Missouri, 270; 6 Mass. ^10; 12 Conn. 41; 9 Eng. Com. Law Rep. 138; 1 Bibb, 425 ; 2 Pet. 155 ; 4 do. 289 ; 5 do. 511 ; 8 do. 46, 223 ; 9 do. 461 ; 11 do. 73 ; 12 do. .507 ; 14 do. 464 ; 2 Bibb, 239 ; 2 Marsh. 471 ; 3 Mon. 104; ^J.J.Marsh.m^; 5 c/o. 484 ; 5 Mon. 551 ; 1 Litt. 330; 7 Mon. 645 ; 3 Bana, 385 ; 4 Ohio, 368 ; 8 do. 230. II. Writ of. A writ of Injunction ought to be sufficiently explicit on its face to ap- prize the party, upon whom it is served, as to what he is restrained CHANCERY. 031 Original Bills. And your Orator and Oratrixes further represent that the said J. A. deceased, well knew that the said J. M. the Patentee, had in fact made a deed of said survey to said J. L., and after his eviction as aforesaid, he still continued to make inquiry and search for it, and so it happened, that after a long time, the said deed, duly executed and recorded, was found in the Recorder's Office of said County of — , in which County the lands lay when the deed was executed, the said County of — , being then included in said County of — , and there- from doing ; without the necessity of his resorting to the plaintiff's Bill to ascertain what the Injunction means ; 4 Paige, 444 ; 2 Edw. 188. The writ should not deprive the defend- ant of any right which the case made by the Bill does not require he should be restrained from exercising ; 9 Paige, 234. In Ohio it is not necessary to issue a Writ of Injunction to stay proceed- ings at Law ; it is provided by Stat- ute, that on execution of the injunc- tion bond, the Clerk of the Court shall indorse on the writ of Subpcena, "Injunction allowed and bail given ;" and this is sufficient without any Writ of Injunction ; Sloan's Stat. 711; § 40. An Injunction to stay Proceed- ings AT Law. The State of Ohio, To C. D. and E. F. and to their counsellors, attorneys, solicitors and agents, and each and every of them, Greeting : Whereas A. B. has lately filed his certain Bill in Chancery in our Court of Common Pleas within and for the said County of — , against you the said C. D. and E. F. defendants, to be relieved touching the matters therein complained of, and which Bill is still there depending, We, there- fore, in sonsideration of the premises, and of the particular matters in the said Bill set forth, do strictly enjoin and command you the said C. D. and E. F. and all and every the persons before mentioned, and each and ev- ery of you, under the penalty of the Law thence ensuing, that you, and every of you, do absolutely desist and refrain from all further proceedings at Law against the said A. B, in the said action of debt in the said Bill mentioned, until the further order of our said Court of Chancery to the contrary. Witness L. H. Clerk of our said Court of Common Pleas at — , this — day of — A. D. — L. H. Clerk, (a). An Injunction to stay waste. The State of Ohio, To C. D. and his workmen, labor- ers, servants and agents, and each and every of them, Greeting : Whereas it has been represented unto us in our Court of Common Pleas within and for the said County of — , on the Chancery side thereof, in a certain cause there depending, wherein A. B. is complainant, and you the said C. D. are defendant, on the part of the said complainant, that you the said C. D. are committing waste and spoil in and upon the fol- (a) All writs and process are to be tested by the Clerk under the seal of the Court; Swan's Stat. 690, § 153. 632 CHANCERY. Original Bills. upon the said J. A. deceased, immediately set himself about making the necessary preparations to recover back the possession of said lands ; but on collecting together his papers for that purpose, the said deeds of conveyance from J. L. to H. K., and from H. K. to W. W., and from W. W. to J. G., which by some accident or oversight had never been recorded, were entirely missing and gone ; and though careful search has been made, they have never been found to this day; and the last trace that can be found of them is, that they were present in Court on the trial of said action of Ejectment in the year 1832. lowing premises, to wit, [_Descrip- tio7i] — We, therefore, having regard to the matter aforesaid, do strictly in- join and command you the said C. D. and your workmen, labourers, servants and agents, and all and ev- ery one of you, under the penalty of the Law thence ensuing, that you and every one of you do from henceforth altogether absolutely desist from fell- ing or cutting down any timber or other trees, standing, growing or be- ing in or upon the premises afore- said, or from committing or doing any other or further waste or spoil in or upon the said premises, or any part thereof, until our said Court shall make further order to the contrary. Witness, &c. An lNJU>fCTI0N TO RESTRAIN THE DISPOSITION OF PERSONAL PROPER- TY AND TO DELIVER THE SAME TO A Receiver, on the order of a SINGLE Judge. The State of Ohio, To C. D. and to his servants and agents, and each and every of them, Greeting : Whereas on the — day of — , A. D. — , (date of Judge's Order,) it was alleged to us in our Court of Chancery before A. T. President Judtre of the — Judicial Circuit, by A. B. plaintiff, against you the said C. D. defendant, among other things, that he the said A. B. had a good and valid lien upon certain ar- ticles of personal property, to wit, \_Here specify the property^ in your possession, and that you were about to destroy, inj ure and otherwise unlaw- fully dispose of the same: And where- as upon the hearing of said allega- tions the said A. T. President Judge, ^'•c, for reasons set forth in the affi- davit of the said A. B. then read, dis- pensed with notice to you of the ap- plication for an Injunction and the appointment of a Receiver in that be- half, and did allow an Injunction re- straining you from destroying, injur- ing, selling or otherwise disposing of said property, and did appoint S.W. to be a Receiver, and upon his taking an oath of office and filing with the Clerk of the Court of — , a bond pay- able to the State of Ohio, with such sureties as the Master Commissioner in Chancery in said Court of — , should approve, in the sum of — , conditioned for the faithful perfor- mance of his duties as such Receiver, he the said S, W. was ordered to receive and take actual possession of all and singular the property afore- said, and you the said C. D. was at the same time ordered forthwith, on demand made by the said S. W. as such Receiver, to deliver the same in- to his hands, to be held by him till fur- ther order of the Court in that behalf: And whereas the said S. W.as receiv- er as aforesaid, has taken an oath of CHANCERY. 633 Originjil Bills. And your Orator and Oratrixes further represent that while mat- ters were in this condition, the said J. A. deceased, still searching for said deeds, one F. X. of the County of — , a speculator in lands and land titles, discovering that the said J. T. had no title to said lands by reason of said deed from J. M. to J. L., then just come to light, as above set forth ; and discovering also that there was no deed or re- cord from said J. L. to any one, made application to the heirs of the said J. L., he having been dead for a long time, and thereupon entered office, and has filed a bond, with sureties, conditioned, and approved as in said order directed : And whereas to be relieved in the premi- ses, the said A. B. on the — day of — , A. D. — , filed his Bill in Chan- cery in the Clerk's Office of the said Court of ■ — , against you the said C. D., and which is now there depend- ing : We, therefore, having regard to the matters aforesaid, do strictly command and enjoin you and your servants and agents, and all and every of you under the penalty of the Law thence ensuing, that you and every one of you do from henceforth alto- gether absolutely desist from des- troying, injuring, selHng or otherwise disposing of said property or any part thereof until our other order to the contrary ; and that you and every one of you forthwith on demand made by the said S. W., as Receiver as aforesaid, deliver all and singular the property aforesaid into his hands, there to be held until the further or- der of the Court. Witness, &c. An Injunction to restrain the In- fringement OF A Copy Right. The United States of America, To A. S., E. S., and L. L., and also to their and every of their servants, workmen and agents, and to all and every of them, Greeting : Whereas on the — day of—, A. D. — , it was alleged to us in our 80 Court of Chancery by N. W. a citi- zen of the State of — , plaintiflf, against you the said A. S., E. S., and L. L. defendents, citizens of said State of Ohio, that he the said N. W. is the author and publisher of a certain book entitled. The Elementa- ry Spelling Book, being an improve- ment on the American Spelling Book; by N. W., L. L. D. : that the said N. W. under the laws of the said United States was and is possessed of the sole and exclusive right and privilege of printing, publishing and selhng the said book, which said right and privilege, was and is se- cured to the said N. W. by the laws of the said United States, for the term of fourteen years, from and after the — dajr of — , A. D. — , as is alleged and shown to us by the said N. W. ; and that notwithstanding the Laws of the said United States, you the said defendants have published, prin- ted, offered for sale, and sold the said Elementary Spelhng Book, as by the affidavit of the agent of the said N. W. read, appeared : To be relieved wherein the said N. W. has filed his Bill in Chancery, in the Clerk's Of- fice of the Seventh Circuit Court of the United States in said District of Ohio, against you .the said defen- dents : We having regard to the matters aforesaid do therefore com- mand and strictly enjoin you the said A. S., E. S., and L. L., and your servants, workmen, and agents, and all and every of you under the pen- alty of the law thence ensuing, that you and each and every one of you 634 CHANCERY. Original Bills. into some arrangement or contract with said heirs, to purchase out their interest, or to become a sharer with them if the lands could be recovered, or some other like arrangement ; and thereupon the said F. X. in the year 1841, commenced an action of Ejectment in the Court of Common Pleas of said County of — , and which is still pen- ding there, the said J. T. being defendant thereto, and the said F. X. counting on his own demise, and the demise of the heirs of said J. L., which said heirs, as well as the said J. T. are all non-residents do from henceforth altogether abso- lutely desist from printing, selling, offering for sale, or in any other manner disposing of any copy or copies of the said pirated edition of said Spelling Book, until the further order of our said Court of Chancery. Witness, The Honorable R. B. T. Chief Justice of the United States, the — day of — , A. D. — . Attest : W. M., Clerk. A WRIT OF InJTNCTION FOR THE Defendant to deliver posses; sioN OF Lands to the Plain- tiff, pursuant to a Decree ; Hinde, 609. George the Third, &c. To C. D. and all other person and persons whatsoever, who are in possession of, or have or claim any right, title or interest whatsoever of, in or to all or any part of the messuage, lands, ten- ements or premises in question — Greeting : Whereas it hath been represented to us in our Court of Chancery, in a cause wherein A. B. and E. Lis wife are complainants, and you the said C. D. are defend- ant, that by the decree made in this cause it was ordered, that you the de- fendant C. D. should deliver posses- sion of the premises in question, and all deeds ard writings in your custo- dy or power relating thereto, to the said complainant ; that you the de- fendant, who are in possession of the messuage or lands in question, were served with a writ of execution of the said decree, and have been required to deliver possession of the messuage and lands, which you refuse to do ; and a commission of rebellion having been made out against you the de- fendant, and returned, that you the defendant are not to be found, it was ordered, that an Injunction be award- ed against you the said defendant, to injoin you to deliver possession of the said messuage and lands to the said complainants, pursuant to the said decree : We, therefore, in con- sideration of the premises, do strictly injoin and command you the said de- fendant C. D. and all and every oth- er persons before named, under the penalty of one thousand pounds, to be levied upon your, each and every of your lands, goods and chattels, to our use, that you, each and every of you, do deliver the possession of the said messuage, lands and premises, and every part and parcel thereof, to the said complainants A. B. and E. his wife, pursuant to the said decree : And hereof fail not at your peril. Witness, &c. See Orders and Decrees. Form of an Injunction in the Ex- chequer to stay Proceedings at Law ; 1 Foivl Ex. Pr. 217. George, &c. To C. D. and to all and singular your counsellors, attor- neys, soUcitors, and agents. Greet- ing : We firmly injoin and command you, and every of you, that from and immediately after your receipt or no- tice of this, our writ, by you or any CHANCERY. 635 Original Bills. of the State of Ohio, and whom with the said F. X., your Orator and Oratrixes pray may be made parties defendants to this Bill. And your Orator and Oratrixes furtlier represent that said F. X. at and before the time, of his said arrangement or contract with the heirs of said J. L. had full knowledge of the right and claim of said J. A. deceased, to said land ; and that if any deed of conveyance for said lands was ever made to said F. X. by the heirs of said J. L. the consideration money, if any there was, has never been paid. of you had, you or any of you do not commence or further prosecute any action, suit, bill or plaint, or enter any judgment, or sue out or levy any ex- ecution in any of our Courts at the common law against A. B. touching any of the matters contained in a cer- tain Bill of complaint lately exhibited by him, the said A. B. complainant, before the Chancellor and Barons of our Court of Exchequer at Westmin- ster, against you, the said C. D. and others defendants ; but that you and every of you do from henceforth wholly and entirely surcease and de- sist from the commencing or further prosecuting any such action, suit, bill, or plaint, and from entering any such judgment, or suing out or levying any such execution, until you, the said C. D. shall have appeared to and fully answered the said Bill, and our Court shall make further order thereupon ; [but if issue is or can be joined in any such suit or action, then you may proceed to a trial thereof ;'] but you are not to enter up judgment, or sue out execution there- on. And hereof you are not to fail, on pain of five hundred pounds, which we will cause to be levied on your goods and chattels, lands and tenements, to our use, if you neglect to obey this our command. Witness Sir Mexander Thomson, Knight, at Westminster, the — day of — in the — year of our reign. By order of the Court, made the same day, and by the Barons. [Indorsed] Steele, Fowler. Injunction to stay Proceedings IN THE Court of Admiralty ; Eden on Inj. 270. George, &c. To A. B., and to all and every your attorneys, solicitors, agents, proctors, and advocates what- soever, Greeting : For certain causes, the Barons of our Exchequer at Westminster there- unto moving, we command and strict- ly injoin you, that, on receipt of this our writ, or notice thereof, by you or any of you had, you do not institute any suit, or begin or further prose- cute any citation, libel, or other pro- cess or sentence thereupon, in our High Court of Admiralty, against C. D. before the Right Worshipful Sir James Marreott, Knight, the Judge of our said Court, touching any of the matters or things contained in a cer- tain petition or bill by him the said C. D. exhibited before the Chancel- lor and Barons of our said Exchequer against you the said A. B., but that you, and every of you, wholly desist from the several matters aforesaid, and all further proceeding thereupon, until you the said A. B. shall have fully answered the said Bill, and our said Court shall have made further order thereupon. Witness, &c. By order of the Court made the same day, and by the Barons. Injunction to quit possession be- fore HEARING ; Eden on Injunc. 271. George, &c., To the Sheriff of the County of — , Greeting : Whereas J. S. hath exhibited his 636 CHANCERY. Original Bills. And your Orator and Oratrixes further represent that the said J. A. departed this hfe in the fall of 1841, having first made his last will and tjestament, which has been duly proved and admitted to re- cord in said County of — , a copy of which is hereto attached and made part of this Bill ; and by virtue of which said Will, your Orator and Oratrixes, as devisees of said J. A., are entitled to said lands, in fee simple. Bill before the Chancellor and Barons of our Court of Exchequer at West- minister against A. B., praying to be relieved as to the several matters therein mentioned, and particularly touching, &c,, \_stuting the prayer of the Bill as the ground of the In- iunction] : We therefore command and strictly enjoin you, that immedi- ately after your receipt of this our writ, you omit not, by reason of any liberty, but enter the same, and go to the said messuages, tenements, and lands, and forthwith remove, or cause to be removed the said A. B., his tenants or assigns from the pos- session thereof, and every part there- of; and put, or cause to be put the said J. S., or those he shall appoint, into the possession thereof, and of eve- ry part thereof. See Orders and Decrees. Witness, &c. III. When dissolved continued OR renewed. Where the answer satisfactorily denies the merits of the Bill the In- junction will be dissolved ; 5 Paige, 112; 4 (Zo. 111. SRE,lHopk.4l(5; 1 Bland, 355; 3 Steiv. ^- Port. 251; 1 Car. Law Kep. 110; 4 Rand. Ij But there are exceptions to this rule; as in cases of asserted waste, or of asserted mismanagement in partner- ship concerns, or of asserted violation of copy rights, or of patent rights : in cases of this sort the Court will look into the whole circumstances, and will continue or dissolve the In- junction in the exercise of a sound discretion; 3 Sumner,!^; Q Paige, 504 ; 1 Dev. Eq. 429 ; 1 Clarke, 303; 1 Bland, 199, 195 ; 9 New Ham.230. See, 3 Scam. 370; 1 Uay. 123 ; 2 do. 151 ; 4 Gill ^- Johns. 17; 1 Iredell Eq. 418 ; R. M. Charlt. 380; 1 Iredell Eq. 194; 1 Green Ch. 439. In 3 Sumner, 73, Mr. Justice Story remarks : " The true rule seems to me to be, that the ques- tion of the dissolution of a special Injunction is one which, after the Answer comes in, is addressed to the sound discretion of the Court. Ex- traordinary circumstances may exist, which will not only justify, but de- mand the continuation of the special Injunction. I am not satisfied that the authorities do establish a contra- ry doctrine. If they did I should hesitate to follow them in a mere matter of practice, subversive of the very ends of justice." See, 1 Tenn. 325; 19 Ves. 350; 2 Hayiv. 136. No appeal lies from an order for an attachment to bring up a party to an- swer interrogatories for a contempt in disobeying a writ of Injunction ; 9 Johns. Rep. 443. The denial in the answer must be positive, and not from information or belief; 1 Paige, 100 ; 5 do. 1 12 ; 2 Johns. Ch. 204 ; 9 New Hamp. 230 ; 1 Hopk. 148 ; 3 Sumner, 78 ; \ Paige, "■iW. Where the facts are not charged to be within the knowl- edge of the defendant, and the an- swer merely denies all knowledge and belief of the facts, the Injunc- tion will not be dissolved ; 1 Paige, 426 ; 1 Saxton, 476. The facts disclosed in the Answer, and not the opinions of the defendant, are look- CHANCERY. 637 Original Bills. And your Orator and Oratrixes further represent, That said deed of conveyance from said W. W. to said J. G. bearing date as afore- said on the 14th of March, A. D., 1814, was defectively executed in having but one witness, and in not being acknowledged according to law, though the same was made on a valid sale, and for the con- sideration as therein expressed of three hundred dollars ; and al- though the equitable title to said lands is thus vested in your Orator and Oratrixes, yet by reason of the loss of said deeds and the want ed to on motion to dissolve ; 1 Bland, 335. Nor must the answer be evasive, or contradictory; 1 Bland, 195, 199; 1 Dev. Eq. 429. If the an- swer admits the equity and avoids it by new matter, the Injunction will not be dissolved ; 2 Dev. ^' Bat. 19. See, 1 do. 38 ; 4 Johns. Ch. 497. The complainant may oppose the dissolution of an Injunction, on the ground that the equity of the Bill is not denied by the Answer, ahhough no exceptions are filed ; 5 Paige, 112. It is the office of an Injunction before Answer to preserve all things in statu quo, and not to determine any right by anticipation, or to undo or restore any thing ; 2 Bland, 461. The Answer must be sworn to ; 4 Paige, 940 ; even though the oath is waived or is otherwise unnecessary ; 6 do. 275. And if the oath is waiv- ed, and the plaintiff files with his Bill affidavits of other persons veri- fying the facts stated in the Bill, the Injunction will not, of course be dis- solved on the oath of the defendant ; 6 Paige, 295. In such cases the de- fendant, on motion to dissolve, may also read the affidavit of third per- sons in support of his Answer ; 4 Paige, 625 ; 5 do. 235. As a general rule, an Injunction will not be dis- solved, on Answer, until the An- swers of all the defendants are put in ; 1 Bland, 199 ; 1 do. 190. But the Answer of mere formal parties is not required ; 1 Hopk. 342 ; 2 Johns. Ch. 148 ; 1 Clarke, 295. See, 5 Paige, \\2; 1 do. 164; 1 Bland, 190 ; 3 do. 606. Where the defend- ant against whom the gravamen of the charges rests has fully answered, the Injunction will be dissolved, al- though other defendants have not an- swered ; 1 Green Ch. 404. In showing cause against dissolving an Injunction, it is a general rule that nothing can be read in opposition to what appears on the face of the An- swer ; Eden on Injunct. 108, 500. Affidavits will do no good to stop dis- solution of Injunction where the An- swer denies all the Equity ; 8 Ves. 35. Nor can testimony taken in the case be used for that purpose ; 1 Ed. Ch. Rep. 21. But on application for an Injunction after Answer, affidavits filed before the coming in of the an- swer may be used ; 2 Hill Ch. Rep. 620. See, 2 Uayw. 136. See, al- so, 3 Sumner, 83, where the policy of the EngHsh rule in excluding af- fidavits is questioned. Where mat- ter not responsive to the Bill is relied on to set aside an Injunction, such matter may be disposed by affi- davit ; 1 Green Ch. 182. And no- thing but what is responsive will be regarded ; 10 Gill %- Johns. 317. To this rule there are exceptions, as in cases of partnership, copy-rights, patent-rights, waste, and cases of mischief analagous to waste ; 3 Sumner, 73 ; 9 Paige, 504. See, 1 Green Ch. 182; 7 Ves. 305; Eden on Jnjunc. 136, 383 ; 1 Smith Ch. Pr. 596; 1 Johns. Ch. 444. In 3 Sumner, 73, it seems to be questioned whether this exception does not extend to title as well as waste. See, also, 2 Hayw. 136. 638 CHANCERY. Original Bills. of proof of their existence and contents, as well as the imperfect ex- ecution of said deed from said W. W. lo said J. G., they are ob- structed in the prosecution of their rights at Law, and they are left exposed to undue perils in asserting their rights without the aid of this Honorable Court. And your Orator and Oratrixes further represent, That after so great trouble and embarrassment ; and residing as they do at so great a distance from said lands ; and there being such a prospect of te- Where the dissolution of an Injunc- tion has been obtained by fraud, it may be reinstated ; 1 Bland, 568 ; 1 Rand. 414; 4 Hen. ^ Munf.^Hl; 1 do. 8. If the plaintiff neglects to serve a siibpcena, the defendant may appear voluntarily and move to dissolve the Injunction ; 8 Paige, 45. The rule is settled in England that service of the siibpcena is invariably required to be made at the same time an ex parte Injunction is served ; 5 Ves. 129 ; 3 Bro. a a 477. See, also, 4 Paige, 439 ; 5 do. 85. That an In- junction was served illegally, or out of the jurisdiction of the Court, or that the subpcena could not be served, is not a sufficient ground for dissolving an Injunction ; 1 Green Ch. Rep. 5. See 2 Hayw. 361 ; 1 Green Ch. Rep. 309. The defendant may move to dis- solve, on affidavit, before Answer ; Seton on Decrees, 305, 312. See 4 Johns. Ch. 173 ; 3 Sumner, 70 ; 5 Howard, 43, And in such case counter affidavits are heard on the part of the plaintiff; 3 Ban. Ch. Pr. 1896. An Injunction allowed till Answer is not ipso facto dissolved by the coming in of the Answer ; 5 Rand. 332. The defendant, before Answer, may move to dissolve for want of equity in the Bill ; 4 Johns. Ch. 173 ; 4 Gill 8,' Johns. 7. The Bill is not, as a matter of course, dismiss- ed on granting a motion to dissolve ; the plaintiff has a right still to prose- cute it as an original suit ; 4 Hen. ^r Mimf. 159. The continuing as well as granting of Injunctions rests in the sound discretion of the Court, 2 Johns. Ch. 202. When the Bill may be amended, See ^nte. 601. Injunctions continue in force though the suit has abated, and the common course, in such cases, is for the party enjoined, if he wishes to get rid of the Injunction, to move that the suit be revived within a given time, or that the Injunction may be dissolved ; 1 Dan. Ch. Pr., Perkins' Ed. 1903. IV. When made perpetual. A perpetual Injunction is often de- creed, at the hearing, though no in- terlocutory Injunction has been al- lowed, or if allowed, has been previ- ously dissolved ; Seton on Decrees, 300 ; 1 Beav. 384. A perpetual Injunction is allowed where a party is in possession of some instrument which it is against conscience that he should use, though the common prac- tice is to direct such instrument to be delivered up and cancelled ; and this too where the instrument might be avoided at Law ; 2 Swanst. 457, where all the cases are collected. A judgment creditor will be per- petually injoined from selling lands on execution, the equitable title to which was bona fide vested in the Complainant before the rendition of the judgment ; 1 Ohio, 257. See 1 Ed. Ch. Rep. 4:17. So where a judgment has been satisfied ; 4^ Johns. Ch. 09. So w^here no valid title would pass by a sale on execution, CHANCERY. G39 Original Bills. dious litigation which they are ill able to bear the expense of; your Orator and Oratrixes entered into a written agreement with the said J. T. by which, on the performance of certain conditions, he the said J. T. will be entitled to a portion of said lands so soon as the title of your Orator and Oratrixes to said survey shall be made perfect and available ; and in this way the possession of the present occu- pants under said J. T. who have made large improvements, need not be disturbed. and the sale would embarrass the Complainant's title ; 2 Ohio, 471 ; 5 do. 48, 178. An Injunction will be made perpetual, to prevent the record of a deed, void as forged and fraudulent, from being used as evidence of title ; 4 Johns. Ch. 302. So where a bond and mortgage is void by reason of infancy ; 3 Desaus. 482. See also 1 Bibb, 184 ; 2 Call, 70. Where a judgment has been satisfied ; 4 Johns. Ch. 09. Where a mill-dam is injurious to health ; 1 Dev. Eq. Rep. 12. So where a judgment was founded upon a mis- take in fact; Munf. 287. So where a vendor assured the vendee, though not in writing, that an adjoin- ing piece of ground was always to be kept open as an alley, wherebj^ the vendee was induced to purchase or pay a higher price, the vendor was injoined from shutting up the alley ; 2 Mwrf. 468. So where there has been a decree for foreclosure and sale of mortgaged premises, the adminis- trator will be restrained from selling the same premises; 1 Edw. 551. An Injunction in favor of an admin- istrator on the ground of a deficiency of assetts is not to be perpetual, but only quando acciderint ; 4 Hen. ^• Munf. 460. Perpetual Injunctions are also allowed to restrain waste, or the infringement of patents, or the piracy of a publication ; Seton on Decrees, 315 ; 4 Burr. 2329. Per- petual Injunctions are decreed in Bills of peace to quiet title after repeated trials at Law; 10 Ohio, 347; 3 Monroe, 427 ; 8 Crunch, 462 ; 2 Johns. Ch. 282; might, 128; 249 ; Eden on Injunct. 416 ; 2 Sto- ry's Eq. Jur. § 852. Nor is it ma- terial what number of trials have been had, whether two or more, so that the right be satisfactorily established ; 10 Ohio, 347. Where one having title and in possession is disturbed in the enjoyment of the possession, but yet not so dispossessed or interrupted as to enable him to have his right de- termined in an action at law, a Bill to quiet the title may be brought be- fore the right is established at law ; 1 IMt. 146. See also Mit. PI. 128, 129; 1 Atk. 284; Pre. Chan. 531. Where an Interlocutory Injunction has been obtained, and it is intended to make it perpetual at the hearing, care must be taken so to direct it in the decree ; Seton on Decrees, 300. V. Breach of, and How Punished. An Injunction, though irregularly obtained, is still an order of the Court and must be discharged before it can be disobeyed ; 3 Mer. 148 ; 2 Edic. 188. But such irregularity will have influence with the Court in determin- ing the extent of the punishment for a breach of the Injunction ; 4 Paige, 444. Sometimes a breach is not much disapproved of by the Court, and if it appears there was no ground for the Injunction, acts done against it ad interim, will not be disturbed ; 4 Mon. 564. And where a party acts under erroneous advice of coun- sel, though the fine imposed by stat- ute must be inflicted, yet the Court «40 CHANCERY. Original Billsi, And your Orator and Oratrixes further represent, That neither the said J. L. while he hved, nor his heirs after his death, ever set up or asserted any claim to said lands, after the date of said J. L.'s deed to said H. K. in 1803, until the said F. X. in 1841, or thereabouts, set himself to look up said heirs ; a period of nearly forty years; nor have said H. K., W. W., and J. G. or either of them, since their said res- pective conveyances, nor their heirs or devisees set up any claim to said lands or any part thereof. will punish no furiher ; 7 Paige, 364 ; 4 do. 163. The general rule is, that on the hearing, the Chancellor will regard every thing done in disobedience to his Injunction as not done ; 4 Mon. 564. Before the Court will punish for a breach of Injunction, it must be clear that the party knew that the Injunction had been issued ; 14 Ves. 136; Anon.'6Alk.hQ>7. But actual service of the writ is not in all cases necessary. lb. See 3 Johns. Ch. 311 ; 5 Hayw. 60. In cases of waste, under the statute, (Swaii's Stat. 712, § 45,j actual service seems to be necessary. Motion to attach for breach of In- junction will not be listened to, if 'made after the Injunction has been dissolved ; 2 Edw. 188. The plain- tiff also by his acquiescence in the breach may dispense with the ordi- nary process ; though strictly speak- ing the parties cannot waive a con- tempt of the Court ; 1 Mer. 3. If the breach of an Injunction be the result rather of error in judgment than of a Avilful contempt, the Court will not direct a commitment, but will merely order the party to pay costs incurred by the breach and by the application ; 3 Dan. Ch. Pr. Per- kins' Ed. 1911 ; Eden on Inj. 56; 16 Ves. 141 ; 3 Mer. 149 ; 17 Ves. 385. The Statute of Ohio provides that on breach of Injunction to stay waste the defendant may be ordered to pay a fine not exceeding two hundred dollars, and to make immediate resti- tution to the party injured, or, in de- fault thereof, to be committed to close custody; Swan's St. 712, §46. In New York, the Court has no discre- tion, and on actual breach of an In- junction the statute requires a fine to be imposed sufficient to indemnify the plaintiff with costs and expenses; and the defendant cannot be dischar- ged from imprisonment until the fine is paid, except with the consent of the prosecutor ; 7 Paige, 364. The Act of Congress of 1789, Sec. 17, gave to the Courts of the United States power to punish, by fine or imprisonment, at the discretion of the Court, all contempts of authority, in any cause or hearing, before the same. But the Act of Congress of March 2d, 1831, ch. 98, limited this power, by declaring "That the power of the several Courts of the United States to issue attachments and inflict summary punishments for contempt of Court, shall not be construed to extend to any cases except the mis- behavior of any person or persons in the presence of the said Courts, or so near thereto as to obstruct the ad- ministration of justice, the misbeha- vior of any of the officers of the said Courts in their official transactions, and the disobedience or resistance by any officer of the said Courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or com- mand of the said Courts." This Statute was adopted by the Legisla- ture of Ohio, in 1834 ; Swans Slat. CHANCERY. 641 Original Bills. And your Orator and Oratrixes further represent, That said H. K., W. W., and J. G. have long been dead, and the names of their heirs and devisees, and their places of residence, are unknown to your Orator and Oratrixes ; all of whom your Orator and Otatrixes pray may be made parties defendants to this Bill ; according to the statute in such case made and provided. All which actings and doings of said defendants are against equity and good conscience, and tend greatly to the injury of your Orator and Oratrixes in that behalf. 211 ; with this farther restriction, "which charge shall be stated in writing, and the accused shall be heard in 'his defence by himself or counsel." Notice of Motion that a De- fendant STAND COMMITTED FOR Breach of Injunction. A — B C ~ 'I In the Court of Chancery. In To C. D. You are hereby notified that on the — day of — , A. D. — , at ten o'clock in the morning, or as soon thereafter as counsel can be heard, the said Court of — , will be moved for an order, that you stand commit- ted for a contempt of said Court, upon certain charges, then and there to be alleged against you, touching a Breach of the Injunction allowed against you in this cause on the — day of «^, A. D. — , and which char- ges according to the statute in such case made and provided, are here stated, as follows, to wit ; 1. — Because you did, &c. 2. — Because you did not, '&c., \_Specifying the pai'ticidars of the Breach.'] Yours (fcc, A. B. Affidavit of service of Notice. The State of Ohio, — County, ss. Before me the undersigned, a Jus- tice of the Peace within and for the 81 said County of — , personally ap- peared H. C. who being duly sworn deposes and says, that on the — day of — , A. D. — , he served the with- in notice and charges on C. D. the person to whom the same are direct- ed, by delivering to him in person a true copy thereof at — . Witness, «fcc. Affidavit of serving an Injunc- tion. A — B-, -) V. I In Chancery. C— D-,J G. H. of, &c., maketh oath, that he this deponent did on the — day of — , A. D. — , personally serve the defendant in this cause with a true copy of an Injunction in this cause issued out of and under the seal of this Honorable Court, bearing teste the — day of — , A. D. — , and this deponent did at the same time shew unto the said defendant the original writ of Injunction under the seal of this Honorable Court, whereby the said defendent was enjoined, &c. \_Here set forth the enjoining part of the Injunction, concluding' with these words, or to that effect.] G. H. Sworn, &c. The like, in another Form. G. H. of, &c., maketh oath, that he this deponent did on, &c.,at, &c., personally serve the said C. D. the defendant in this cause with a true 642 CHANCERY. Original Bills. Your Orator and Oratrixes therefore pray process of subpoena against the said F. X. and pubUcation as to tlie said J. T., and the said heirs of said J. L. non-residents as aforesaid, and such order of notice as to said Unknown Heirs and Devisees as to your Honors shall seem meet, according to the statute in such case made and provided ; that your Honors will grant an Injunction restraining the said F. X. and the said heirs of said J. L. from all further pro- ceedings in said action of Ejectment until hearing or further order ; that said defendants may on their corporal oaths to the best and ut- copy of the within writ of Injunction, and did at the same time show to the said C. D. the original writ. Sworn, &c. Affidavit of serving Subpcena INDORSED "Injunction allowed AND Bail given," instead of a WRIT of Injunction ; Sumn's Stat. 711, §40. A— B-,-] V. yin Chancery. C— D-,J G. H., of, &c., maketh oath, that he this deponent did on the — day of' — , A. D. — , personally serve the defendant in this cause, with a true copy of a subpoena in this cause, issued out of and under the seal of this Honorable Court, bearing teste the — day of — , A. D. — , and in- dorsed Injunction alloived and bail given, C. TV., Clerk, ^'C., and this deponent did at the same time show unto the said defendant the original writ of subpoena, under the seal of this Honorable Court, indorsed as aforesaid. Sworn, &c. G. H. Upon affidavit of the service of the Notice and of the Injunction, the mo- tion to commit is made. If the oth- er side is not prepared to defend the motion, the Court usually gives a day to show cause against it, and then upon hearing the affidavits on both sides, determines whether the party is guilty of the Breach ; if he be guilty, the Court makes an order for his commitment ; Eden on Injunc. 56. And a like order is made, if the contempt is admitted, or no cause shown to the contrary; 4 Paige, 378; 3 Porter, 356. Form of an order of commitment for contempt. A- B-, -, C- D-, J In Chancery. Motion to commit for con- tempt. This day came the plaintiff and moved the Court here for an order that the defendant, C. D. may stand committed for a breach of the In- junction allowed against him in this cause on the — day of — , A. D. — , and thereupon, according to the form of the Statute in such case made and provided, the said plaintiff filed here- in with the Clerk of this Court the following charges alleged against the said C. D. in that respect, to wit: 1. Because the said C. D. did, &c. 2. Because the said C. D. did not, 8fC. [_Specifiiing the particidars as set forth hi the Notice.'] Whereupon, and upon hearing the affidavit of H. C. whereby it appears that he did on, &c., serve the said defendant C. D. with a writ of the said Injunction, [or, with a writ of subpw.na endorsed, '■'■Injunction al- lowed and bail given, C. W,, Clerkr <^c.3 by dehvering to and leaving CHANCERY. 043 Original Bills. most of their knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to all and singular the matters aforesaid, and particularly that the said heirs of said J. L. may thus answer and say : Whether the said J. L. did not in his life time sell said lands to said H. K. Whether the said J. L. after the year 1803, or his said heirs after his death, ever set up any claim to said lands, till the said F. X. had some communication with them, or some of them, in regard to their right or title to the same. with the said defendant a copy of the said writ, and showing him the orig- inal, and the affidavit of T. R., whereby it appears that he did on, &c., serve the said defendant with notice of this motion, and at the same time did deliver to him personally, in writing, a copy of the said charges as herein above alleged against him, and the affidavits of W. S., &c., touching the same charges, and the arguments of the counsel, as well for the one party as the other, the Court do find that the said C. D. is guilty of a breach of said Injunction, and of a contempt of this Court in this, to wit : [^specifying the Breacli] Whereupon, It is ordered by the Court that the said C. D. be commit- ted forthwith to the common Jail of the said county of — , there to re- main in close custody until he shall comply with the said Injunction, [specifying particularly what is to be done'] and pay the costs of these proceedings, taxed to $ — (a), and that process of commitment issue ac- cordingly. Form of a commitment for con- tempt. The State of Ohio, To the Sheriff of Greeting : Whereas heretofore, to wit : on &c. [the date of the allowance of the county, Injunction'] in our Court of Com- mon Pleas within and for the said county of — , on the Chancery side thereof, in a certain cause then and there pending, wherein A. B. was complainantandC. D. was defendant, an Injunction, was allowed by the said Court restraining the saidC. D. from, &c. [specifying the particulars]: and whereas afterwards, to wit : on, &c. [the date of the order of commit- ment^ the said A. B. in the same cause then and there still pending moved the said Court for an order that the said C. D. might stand com- mitted for a breach of the said In- junction, and according to the form of the Statute in such case made and provided, did then and there file with the Clerk of said Court the following charges against the said C. D. in that respect, to wit : 1. Because the said C. D. did, &c. 2. Because the said C. D. did not, &c. [specifying the particulars as set forth in the Order]. Whereupon, and upon hearing the affidavit of H. C. whereby it ap- peared that he did on, &c., serve the said defendant C. D. with a writ of the said Injunction by delivering to and leaving with the said defendant a copy of the said writ, and showing him the original, and the affidavit of T. B., whereby it appeared that he did on, &c. serve the said defendant (a) The costs are to be taxed immediately, and the amount thereof epecified in the Order as well as the Alittimus. 644 CHANCERY. Original Bills. When was it that F. X. first made known to them, or either o them, the situation of the title to said lands ; and what did he say ; and what kind of contract or arrangement, if any, was made by them or either of them, with said F. X. touching said lands ; and was it, or not, reduced to writing. Did the said F. X. pay them, or either of them, any money, or en- gage to do so; if so, when, and how much. Did they, or either of them, give a deed of said lands to said F. X. if so, what was the consideration therefor, and was any part thereof due and unpaid at the date of the filing this Bill. with notice of the said motion, and at the same time did deliver to him personally, in writing, a copy of the said charges, so filed with the said Clerk, as aforesaid, and the affidavits of W. S., &c., touching the same charges, and the arguments of coun- sel as well for the one party as the other, the said Court did thereupon find the said C. D. guilty of a breach of said Injunction, and of a contempt of said Court in this, to wit: [^speci- fying the particulars as in the order'] Whereupon it was ordered by the said Court that the said C. D. be committed forthwith to the common Jail of said county of — , there to re- main in close custody until he should comply with the said Injunction [specifying parlicidarli/ tvhat is to be done'], and should pay the costs therein taxed to $ — , and that pro- cess of commitment should issue ac- cordingly : You, therefore, are here- by commanded forthwith to take the body of the said C. D. and him com- mit to the common Jail of the said county of — , and there keep him in close custody until he shall be dis- charged by due course of law. Witness, &c. Sometimes instead of a Motion to commit, an ^9ttachment is applied for, which enables the plainlilf to ex- amine the defendant upon Interroga- tories. The Attachment issues on probable cause shown of a breach of the Injunction ; 4 Paige, 378. Form of an Order for an Attach- ment. A— B- C— D- In Chancery. Motion for an Attachment. This day came the plaintiff and moved the Court here for an Attach- ment against the said C. D. for a contempt of this Court in disobeying the Injunction allowed against him in this cause on the — day of — A. D. — ; and thereupon, according to the form of the Statute in such case made and provided, the said plaintiff filed herein with the Clerk of this Court the following charges alleged against the said C. D. in that respect, to wit : 1. That the said C. D. did, &c. 2. That the said C. D. did not, &c., [specifying the particulars of the Breach.] And it appearing by the affidavit of T. R. that the said C. D. was duly served with the said Injunction, and by the affidavits of R. C. &c., that since the 0th day of April last, the said C. D. has cut timber, &c,, [specifying the particu- lars of the Breach.] Therefore, It IS ORDERED, that proccss of Attach- ment issue against the said C. D., directing the Sheriff of the said county of — to bring him before this Court on, &c., to answer upon inter- rogatories touching the contempt al- leged against him in violating said Injunction, and to be further dealt with according: to law. CHANCERY. 645 Original Bills. At or before the time of making any arrangement or contract rela- tive to said lands with the said F. X. had they, or either of them, any knowledge of the claim of the said J. A. deceased, to said lands ; if so, what were the particulars of that knowledge. And your Orator and Oratrixes further pray. That said F. X. may, in like manner, answer and say : When did you first hear any thing about the said J. A's title or clahn to said lands. When did you first hear that said J. A. had been turned out of the possesion of said lands under the said J. T.'s judgment in Eject- ment. Writ of Attachment for Con- tempt OF Court. [Seal] The State of Ohio, To the Sheriff of — County, Greeting : We command you that you attach C. D. so as to have his body before our Court of Common Pleas within and for said County of — forthwith, or, on the first day of their Term, to answer us of a certain contempt by him lately committed against us, as it is said, and further to do and re- ceive what our said Court shall in that behalf consider : Hereof fail not, and have you then there this writ. Witness, &c. The substance of the complaint is indorsed on the Writ, " For Breach of the Injunction allowed against the said C. D. at the suit of A. B." On this Writ the Sheriff may take bail ; 4 Ohio, 83. The ordinary rule of the Court is, that there shall be a personal exam- ination of the party upon interroga- tories touching the fact and the inten- tion , 1 Turn. Sf' Buss. 184; 11 Eng. Ch. Rep. 105. Where there are conflicting affidavits in relation to the alleged contempt, an Attachment may be issued to bring the defendant into Court, so that he may be exam- ined on interrogatories as to the con- tempt, and enable the complainant to compel the attendance of witnesses to prove the facts ; 4 Paige, 378. The proceedings upon Motion and Attachment are substantially the same ; lb. Form of Interrogatories. I The State of Ohio, V. |> Attachment for C — D — , J Contempt. Interrogatories to be answered by the said C. D. touching the charges of contem.pt herein alleged against him. 1. Did you, &c. 2. Did you not, &c. In England the Interrogatories are settled by a Motion ; P.P. C 219 ; 1 Turn. Sf- Puss. 184 ; llEng. Ch. Pep. 105. For the Practice where a defendant is in contempt for want of a sufficient ansv\rer. See the case last cited. The first order was in the following terms : — "Forasmuch as this Court was this present day in- formed by Mr. Parker, of counsel for the plaintiff, that the former answer of the defendant John Balfour hath been reported insufficient, by Mr. Cox, one of the Masters of this Court, as by the Master's report, dated this day, now produced, appears, it is 646 CHANCERY. Original Bills. At or before the time you made any contract or arrangement with the heirs of said J. L. had you not heard that the deed from J. L. to II. K. as hereinbefore set forth, had been lost or mislaid. How came you first to think of going to look up the heirs of said J. L. How did you first know any thing about the title of said J. L. to these lands. Did you ever see any or either of the deeds hereinbefore mention- ed, originals or copies, in the claim of title from the said J. M. the Patentee, down to the said J. A. ; if so, when, and which of them. And your Orator and Oratrixes further pray, That on the final hearing, all said defendants (except the said J. T.) may be decreed to convey to your Orator and Oratrixes, in fee simple, all their in- terest, claim, and demand in and to said lands, with covenants of special warranty ; that a perpetual Injunction be decreed against all further proceedings in said action of Ejectment ; and that your Ora- tor and Oratrixes may have such other and further relief in the prem- ises as to your Honors shall seem meet : And they shall ever pray, &,c. L. T., Solicitor for Complainants. therefore ordered, that the said de- But for a bare contempt in not doings fendaiit John Balfour be examined somewhat, then only till he obey and upon interrogatories before the said perform ; for a contem})t in doing Master, to the points wherein the said somewhat against the order of the defendant's answer is reported insuf- Court is accounted much greater than ficient, and that he do stand commit- omitting to do somewhat commanded, ted to his Majesty's prison of the seeing the one is wilful, the other not Fleet until he shall perfectly answer always so ; and besides what is only the said interrogatories, and the Court not done may be done, but Avhat is make further order to the contrary." once done cannot be undone, though For any direct and positive contempt its effects may often be made to cease, a party may not only be taken into or reparation may be made. Fr. custody, but committed to the Fleet Fcg. in Cane. 100 ; Vin. Mg. Tit. during the pleasure of the Court. Contempt, (B.) CHANCERY. 647 Original Bills. III. Bill to enjoin the negotiation of a Bill of Exchange. ^ To the Honorable The Judges of the Court of Common Pleas within and for the County of — and State of Ohio — in Chancery Sitting. Respectfully represents unto your Honors your Orator A. C. of, &c. That in or about the month of — A. D. — B. S. of &c. (and whom your Orator prays may be made a party defendant to this Bill) ap- plied to your Orator, and requested him to endorse a certain Bill of Exchange for him the said B. S. and for his acccommodation, drawn by the said B. S. upon one F. W. and payable at, &c. in four months from date, and dated on or about the — day of — A. D. — , which Bill the said B. S. assured your Orator was to be discounted at the Bank of, &c., for his benefit, and was to be used for no other purpose whatever ; and thereupon your Orator, for the accommoda- tion of the said B. S. merely, and without any consideration therefor, indorsed said Bill, at or about the time of its date. And your Orator further represents that on application being made to the said Bank of, &c. by the said B. S. the said Bill was refused to be discounted ; and thereupon the said B. S. without the knowl- edge or consent of your Orator retained the said Bill in his own hands until disposed of as hereinafter mentioned. And your Orator further represents that soon afterwards, and be- fore said Bill came to maturity, the said B. S. wholly failed, and be- came notoriously insolvent ; and thereupon your Orator immediately made inquiries at said Bank of, &c. to learn what provision had been made by said R. S. if any, for the payment of said Bill, and was then for the first time informed that said Bill had not been discounted there ; and your Orator on the same day called upon the said B. S. and was told by said B. S. that said Bill had been indorsed by him to one H. C. of, &c. (and whom your Orator prays may be made a party defendant to this Bill) and that said Bill of Exchange was still in the hands of said H. C. And your Orator further represents that the said H. C. holds the said Bill of Exchange in trust merely for the said B. S., that said H. C. paid no consideration whatever to said B. S. for said Bill, and that said Bill was indorsed by said B. S. to said H. C. without the knowl- edge or consent of your Orator, and under a fraudulent agreement between them that the said H. C. should receive the money when due and pay the same over to the said B. S. in fraud of your Orator, as well as the other creditors of the said B. S. {a). For general Rules in framing For general Rules regulating In- a Bill in Equity, See ^nte. 586, n. (o). junctions, See J3nte. 623, n. (a) . 648 CHANCERY. Original Bills. And your Orator further represents, that he has in a friendly man- ner requested the said B. S. and H. C. to dehver up said Bill of Ex- change to your Orator, or to cancel the same, or in some other way destroy your Orator's indorsement thereon, and release him from lia- bility on that account, but this they refuse to do ; and the said Bill of Exchange not being yet at maturity, the said H. C. threatens that he will negotiate the same to some bona fide purchaser, and so compel your Orator to pay it. Your Orator therefore prays process of subpoena against the said B. S. and H. C, and that they may, on their corporal oaths, to the best and utmost of their knowledge, remembrance, information and belief, full, true, direct and perfect answer make to all and singular the mat- ters aforesaid ; and that your Honors will grant an Injunction re- straining the said B. S. and H. C. from negotiating, indorsing, or de- livering over said Bill of Exchange to any person or persons ; and that your Orator may have such other and further relief in the prem- ises as to your Honors shall seem meet ; and he shall ever pray, &c. S. T. Solicitor for Complainant. IV. Bill by Mortgagee against Mortgagor, to foreclose. (^) To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Orator J. H. of said County of — , that on or about the — day of — A. D. — , one G. M. of, &c. (and whom your Oratar prays may be made a party de- (a) For general rules in framing <^- Le Froy, 301 ; 10 Ves. 405. In a Bill in Equity, See ./5n/e. 586, n. (a). 3 Madd. Rep., 95, it is held that a [f the whole debt is due and the mortgagee cannot be paid as a Re- lands are not sufficient to pay the ceiver, nor can he generally and uni- debt, a receiver may be appointed on versally appoint a Receiver. But if filing the Bill, to take the rents and the nature of the estate be such, that profits ; 5 Paige, 38. great time and trouble must be sac- Where a Mortgagee enters into rificed in the receipt of the rents, he possession and so becomes accounta- may appoint a Receiver ; and so of ble for the rents, annual rests will be his assignee. A mortgagee is always directed ; 2 ./5//c. 410. A Mortgagee entitled to his costs, unless there be in possession is not entitled to charge positive misconduct on his part; Sch. Receivers fees for himself ; but other- ^' Le Froy, 657. wise if he pay a Receiver ; 2 Sch. Upon a mortgage to secure money by CHANCERY. 649 Original Bills. fendant to this Bill, executed a mortgage to your Orator, in fee sim- ple, upon the following real estate, situate in said County of — , to wit, [Description], and which mortgage, bearing date the day and year, last aforesaid, was executed as aforesaid, in order to secure the payment of a certain promissory note of the said G. M. of even date with said mortgage, for the sum of ,^3000, payable with interest thereon to your Orator on or before the — day of — then next en- suing: And your Orator further represents that the said sum of ^3000 was not paid to your Orator at the time limited in said mortgage, and that thereby the estate of your Orator in said mortgaged premises be- came absolute at Law. installments, a Bill to foreclose maybe exhibited for non-payment of the J?rs/ installment ; 1 Bibb, 149. An eject- ment also lies without notice to quit ; 2 Conn. 1 . And the defendant will not be allowed to stay proceedings, on bringing into Court the principal and interest due, with the ^osts, un- less he also put in an answer, con- fessing the debt, or consent to a de- cree of foreclosure, to remain subject to the further order ot the Court upon a subsequent default ; 1 Johns. Ch. 617: See 13 0/«o, 210. It is said that in the case of a mortgage, where the legal estate passes from the debt- or to the creditor, an assignment of the debt is no conveyance of the legal estate to the assignee ; that a Court of Equity will pass the one as an incident to the other, but in a Court of Law, the assignee cannot maintain Ejectment ; 9 Wheat, 308. The Mortgagee may go on to fore- close though he has taken the body of the mortgagor in execution for the mortgage debt ; 2 Russ. 8,- Mylne, 76 ; 6 Eng. Ch. Rep. 404 : See 6 J. J. Marshy 70. Possession by the Mortgagee, for a period short of twenty years, will not bar the equity of redemption ; the possession must be an actual, quiet, and uninterrupted possession for twenty years, or a period sufficient to toll the right of entry at law ; 1 82 Johns. Ch. 385. And an acknow- ledgment of the mortgage title within twenty years before filing the Bill will maintain the right to redeem ; 6 Madd. 274 : See Story's Eq. PL §751 ; 3 Johns. Ch. 129 ; 1 B. Mon- roe, 308 ; 2 Porter, 58. So where the Mortgagee has treated it as a mortgage by keeping accounts, &c. ; 9 Wheat. 489 ; 1 Dana, 279 : See also 1 Paige, 48 ; 3 Murphy, 218 ; 3 Bro. C. C. 254. A mortgagee or assignee, in pos- session, is not to be allowed for his improvements in clearing wild land, but only for necessary reparations, &c. ; and must account for the rents and profits received by him, except such as have arisen exclusively from his own improvements ; 1 Johns. Ch. 385. A purchaser from the mortga- gor with notice, cannot have the val- ue of improvements made by himself, deducted from the price at which the mortgaged premises may be sold ; 9 Wheat. 489. The old practice in England was not to sell, but fore- close: Lord Eldon altered it; 1 Ves. 4- Bea. 223 ; 3 Johns. Ch. 367. Where the interest on a mortgage is payable annually, and the princi- pal at a future period, on a Bill for a foreclosure and sale for non-payment of interest, the whole or a part of the premises will be sold, as the court may deem just, on a special report of 650 CHANCERY. Original Bills. And your Orator further represents that the said sum of ^3000 to- gether with a considerable arrear of interest accrued thereon is now due to your Orator on the security of said premises ; and that your Orator hath frequently, and in a friendly manner, applied to the said G. M. and requested him to pay the same, or to release his equity of redemption in said mortgaged premises, which the said G. M. refuses to do. Your Orator therefore prays for process of subpoena against the said G. M., and that he may on his corporal oath, to the best and utmost of his knowledge, remembrance, information, and belief, full, true, di- rect, and perfect answer make to all and singular the matters afore- the master as to the situation of ihe premises, and as to the best mode of sale ; and an order from time to time as the interest or principal becomes due, for a future sale, may be obtain- ed, on the foot of the decree, on ob- taining the master's report as to the amount due, &c. ; 2 Johns. Ch. 486. A Mortgagee with power to sell on default of payment can make an in- defeasible title; 18 Ves. 343; 10 Johns. Rep, 185 ; 2 Thomas' Coke on Litt. 28 ; where the English ca- ses on Mortgages are collected. Junior incumbrancers must be made parties or they may redeem ; 1 Dana, 25. Who are necessary parties. See Ante. 610. HeAvho has notice of apri- or Mortgage purchases with an ill con- science ; 2 Eq. Ca. Mg. 63; S. C. 1 Str. 664. For other cases of No- tice and Priority under the English and Irish Registry Acts, See 2 Bi'O. P. C. 425 ; cited at length in 1 Scho. fy Le Froy, 99 ; 1 Eq. Ca. Mg. 357, 358 ; 2 do. 609 ; 2 Alk. 275 ; cited 4 Cruise's Dig. 372 ; 3 Jltk. 646 ; 1 Ves. Sen. 64 ; 1 ^mhl. 62^1 ; cited 1 Scho. &r Le Froy, 101 ; cited at length in 4 Cruise's Dig. 373 ; 1 Ves. Sen. 412; 1 Scho. ^' Ze Froy, 90 ; commented on in 8 Co7in. 556, and 4 Kent's Com. Ill ; 1 Scho. c^- Le Froy, Ibl , 2 do. 65; 1 Young fyJer.Ul. An equitable estate may be mort- gaged ; 1 Johns. Ch. 394 : See 1 Caine's Cas. 112; 2 Johns. Rep. 510; II Sergt. S^- Rawle, 223; 3 Leigh, 365 ; 1 J. J. Marsh. 404 ; 4 JJtt. 173 ; 8 Dana, 84 ; Wright, 626; 1 Story's Eq. §403. Notice of a prior unrecorded mort- gage does not, under the Statute, af- fect a second Mortgagee whose mort- gage is first registered ; 13 Ohio, 148 ; 14 do. 428. The Mortgagor may redeem, notwithstanding the consideration of the note to secure the payment of which the mortgage was executed, was illegal or contrary to public policy ; 14 do. 38. Under the Act of 1840, a mortgage upon a Steamboat has not a priority over other creditors ; 14 do. 72. Where the mortgaged premises are sold by the Mortgagor, in parcels, to different purchasers, the Mortgagee, on fore- closure, will be compelled to exhaust first the tract last sold, and so on, in the inverse order of sale, till the mortgage is satisfied ; 14 do. 365. An unrecorded mortgage loses its lien as against a subsequent judg- ment ; 14 do. 428. Case lies by a Mortgagee for an injury to the mortgaged premises; \b do. 726. The mere paying the money secured by mortgage reinvests the legal title in the Mortgagor, without any re- lease or deed of reconveyance ; 1 /. J. Marsh. 236. CHANCERY. 05I Original Bills. said ; and that an account may be taken under the direction and de- cree of this Honorable Court of what is due to your Orator upon the said mortgage ; and that said G. M. may be decreed to pay unto your Orator what shall thus appear to be due, with the costs of this suit, by a short day to be appointed by this Honorable Court, your Orator being ready and willing, and hereby offering, on being paid his said money and interest and costs, at such appointed time, to re-convey said mortgaged premises to the said G. M. as this Honorable Court shall direct ; and that in default of such payment, the said G. M. and all persons claiming under him, may be absolutely barred and fore- closed of and from all right and equity of redemption in and to said mortgaged premises, and may deliver up to your Orator all and every such deeds, evidences, and writings in his possession, custody, or power, relating to said mortgaged premises, as your Orator ought to have ; and that your Orator may have such other and further relief in the premises as to your Honors shall seem meet : and he shall ever pray, &,c. S. T. Solicitor for Complainant, V. Bill by first Mortgagee against Mortgagor, subsequent Mort- gagees and subsequent Judgment Creditors, for a sale of the mortgaged premises. ^ To the Honorable The Judges of the Court of Common Pleas within and for the County of — and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Orator A. B. of, &c. that on or about the — day of — A. D. — , one C. D. of, &c. (and whom your Orator prays may be made a party defendant to this Bill) executed a mortgage to your Orator, in fee simple, upon the fol- lowing real estate, situate in said County of — , to wit, [Description] and which mortgage, bearing date the day and year last aforesaid, was executed as aforesaid in order to secure the payment of a certain bond of the said C. D., of even date with said mortgage, for the sum of ^1000, payable with interest thereon, to your Orator on or before the — day of — then next ensuing. And your Orator further represents that said mortgage was duly recorded in said County of — , at — o'clock, forenoon, on the — day of — A. D. — . (aj. For general Rules in framing For Rules regulating proceedings a Bill in Equity, See .4n/«. 586, n. (a.), on Mortgages, See jinte. 648, n. (a) 652 CHANCERY. -Original Bills. And your Orator further represents that said sum of ^1000 was not paid to your Orator at the time hmited in said mortgage, and that thereby the estate of your Orator in said mortgaged premises became absolute at Law. And your Orator further represents that since the execution and recording of said mortgage, the said C. D. has executed other mort- gages on the same premises to other persons, as follows, to wit : To R. R. of said County oi — (and whom your Orator prays may be made a party defendant to this Bill) dated the — day of — A. D. — , for the sum of ^ — . To W. C. of the same County, (and whom your Orator prays may be made a party defendant to this Bill) dated, &c., for the sum of To G. M. of, &c. And your Orator further represents that since the execution and recording of his said mortgage, several judgments, operating as liens upon said mortgaged premises, have been rendered against the said C. D. as follows, to wit : One, on the Law side of this Honorable Court, on the — day of — A. D. — , for the sum of % — with costs of suit, in favor of E. F. of, &c. (and whom your Orator prays may be made a party defend- ant to this Bill.) One, &c. And your Orator further represents that the said sum of ^1000, with the interest accrued thereon is now due to your Orator, on the security of said mortgaged premises ; and that your Orator hath fre- quently and in a friendly manner applied to the said C. D. and re- quested him to pay the same, which he the said C. D. refuses to do. Your Orator therefore prays process of subpoena against the said C. D. &c. and that they may on their respective corporal oaths, to the best and utmost of their knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to all and singular the matters aforesaid ; and thai an account may be taken under the direction and decree of this Honorable Court of what is due upon said mortgages and judgments ; and that said C. D. may be decreed to pay, what shall thus appear to be due, with costs, and in default of such payment, that said mortgaged premises may be sold, and the proceeds applied according to the rights of the respective parties ; and that your Orator may have such other and further relief in the premises as to your Honors shall seem meet : and he shall ever pray, &c. S. T. Solicitor for Complainant. CHANCERY. 653 Original Bills. VI. Bill by Heir of Mortgagor against Mortgagee to redeem. * To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and ^State of Ohio, — in Chancery Sit- ting. Respectfully represents unto your Honors your Orator A. B. of, &c., only son and heir of C. C. late of, &c., deceased, That the said C. C. in his life time, on or about the — day of — , A. D. — , exe- cuted a mortgage, in fee simple, to one W. W. of &c., (and whom your Orator prays may be made a party defendant to this Bill,) upon the following real estate, situate in said County of — , to wit, [De- scription] and which mortgage, bearing date the day and year last aforesaid, was made and executed to secure the payment of $2000 to the said W. W. on or before the — day of — , then next ensuing. And your Orator further represents. That the said sum of ,']^2000 was not paid at the time appointed for that purpose,'whereby the estate of the said W. W. in said premises became absolute at Law ; where- upon he entered into possession of said premises, and the receipt of the rents and profits thereof, and still retains the same. And your Orator further represents, That the said C. C. your Ora- tor's said father, long since departed this life, leaving your Orator, then an infant under the age of twenty one years, but your Orator has since, and on the — day of — , A. D., — , attained that age, and from time to time applied to the said W. W. to be let -in to redeem the said premises ; but there being, when your Orator attained the age of twenty one years, a considerable sum of money due upon the the said mortgage, which your Orator was not then able to pay, and as the said W. W. refused to permit your Orator to redeem the said premises on any other terms than your Orator's paying down all the money which he alleged to be due to him, your Orator was then un- able to accomplish such redemption. And your Orator further represents, That the interest of the said principal sum of $2000, and all, or most of the principal sums, has been satisfied by and out of the rents and profits of said mortgaged premises, received by the said W. W., which are very considerable ; and your Orator has lately renewed his applications to the said W. W. to permit your Orator to redeem the said premises, and to ena- ble your Orator so to do, to account with your Orator for the rents (a) For general Rules in framing a For Rules regulating proceedings Bill in Equity, See Ante. 586, n. {a) on Mortgagees, See Ante. 648. n.(a) 654 CHANCERY. Original Bills. and profits of the said premises received by him the said W. W. during the time he has been in possession thereof as aforesaid, which the said W. W. refuses to do, pretending said premises to be now his own. Your Orator therefore prays process of subpoena against the said W. W., and that he may, on his corporal oath, to the best and ut- most of his knowledge, remembrance, information and belief, full, true, direct and perfect answer make to all and singular the matters aforesaid ; and especially that said W. W. may answer and set forth in manner aforesaid, whether any and what part of the principal sum of ^2000, with any and what arrear of interest for the same, is now due and owing to him on the security of the said mortgaged premi- ses, and how he makes out and computes the same : And whether the yearly rents and profits of the said premises since the said W. W. has been in possession thereof, have not been much more, and how much, than sufficient to answer the interest of the said sum of ^2000, and all, or a considerable, and what part of the said principal sum of ^2000, or how otherwise : And that said W. W. may answer and set forth in manner aforesaid, at what yearly rent or rents the said mortgaged premises have, or might have been let, since he has been in possession thereof: And whether he the said W. W. has not, or without his wilful neglect or default might not, have received the whole of the rents and profits of said mortgaged premises, since he has been in possession thereof, and if not, why: And that an account may be taken under the decree and direction of this Honorable Court, of what is now due and owing the said W. W. for principal money and interest on said mortgage : And also that an account may be ta- ken of the rents and profits of said premises, received by the said W. W. or by any person or persons on his behalf, or which, without his wilful neglect and default, might have been received by him since he entered into possession of said premises : And that in taking such account, rests may be made from time to time, when and as the rents shall appear to have exceeded the interest in arrear: And that upon payment by your Orator of what, if any thing, shall be found remain- ing due to the said W. W. in respect of the said principal money and interest, the said W. W. may be decreed to surrender and de- liver up the possession of the said mortgaged premises to your Ora- tor, or in such other manner as he may appoint or direct, and that your Orator may have such other and further relief in the premises as to your Honors shall meet : And your Orator shall ever pray, &c. S. T., Solicitor for Complainants. CHANCERY. 655 Original Bills. VII. Bill by Heir of Mortgagor against Mortgagee, to set aside a decree of foreclosure fraudulently obtained, and for a redemp- tion.^ To the Honorable The Judges of the Court of Common Pleas, with- in and for the County of — , and State of Ohio, — in Chancery Sit- ting : Respectfully represents unto your Honors your Orator, A. B., of, &c., only child and heir at law of C. C, late of, &c., deceased. That the said C. C. in his life time on or about the — day of — A. D. — , executed a mortgage in fee simple to one W. W., of, &c., (and whom your Orator prays may be made a party defendant to this Bill) upon the following real estate, situate in said county of — , to wit : [Description] and which mortgage, bearing date the day and year last aforesaid, was made and executed to secure the payment of ^1000 to the said W. W. on or before the — day of — , then next ensuing. And your Orator further represents that the said C. C. on or about the — day of — , A. D. — , departed this life, leaving your Orator his only child, and heir at law, then an infant under twenty-one years, that is to say, of the age of seven years, or thereabouts. And your Orator further represents that during your Orator's min- ority, and on or about the — day of — , A. D. — , the said W. W. filed his Bill of complaint in this Honorable Court against your Ora- tor for a foreclosure of your Orator's right and equity of redemption in the said mortgaged premises ; but your Orator was not represented in such Bill to be then an infant ; and the said W. W. caused and pro- cured one P. S., since deceased, who acted in the management of the affairs of your Orator's said father, to put in an answer in the name of your Orator, and without ever acquainting your Orator or any of his friends or relations therewith ; in which said answer a much greater sum was stated to be due from your Orator upon the said mortgage to the said W. W. than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security ; and in consequence of such answer being put in, the said W. W. afterwards, in conjunction with the said P. S. on or about the — day of — , A. D. — , obtained an (a) See, 1 Story's Eq.Jur. §252; Ante. 586, n. («). For Rules regula- Lord Red. 73 ; 1 Madd. Ch. 237 ; ting the proceedinos on Mortgages, 2 Font. Eq. 267. For General rules See Ante. 648, n.^(a). in framing a Bill in Equity, See 656 . CHANCERY. Original Bills. absolute decree of foreclosure against your Orator, which your Ora- tor has only lately discovered, and of which your Orator had no no- tice ; and in which said decree no day is given to your Orator, who was an infant when the same was pronounced, to show cause against it when he came of age ; as by the said proceedings now remaining, as of record in this Honorable Court, reference being thereunto had, will more fully appear. And your Orator further represents that your Orator on the — day of — , A. D. — , attained the age of twenty-one years, and shortly afterwards, having discovered that such transactions had taken place during his minority as aforesaid, by himself and agents represented the same to the said W. W., and requested him to deliver up posses- sion of the said mortgaged premises to your Orator, on being paid the principal money and the interest, if any, actually and fairly due thereon, which your Orator offered, and has at all times been ready to pay, and which would have been paid by the personal representa- tives of the said C. C. out of his personal assets, during your Orator's minority, had any application been made for that purpose, but this the said W. W. refuses to do. Your Orator therefore prays process of subpoena against the said W. W. and that he may, on his corporal oath, to the best and ut- most of his knowledge, remembrance, information and belief, full, true and perfect answer make to all and singular the matters afore- said ; and that the said decree of foreclosure may, for the reasons and under the circumstances aforesaid, be set aside by this Honorable Court, and declared to be fraudulent and void ; and that an account may be taken of what, if any thing, is now due to the said W. W. for principal and interest on said mortgage ; and that an account may also be taken of the rents and profits of said mortgaged premi- ses which have, or might have been received by or on the behalf of the said W. W.; and if the same shall appear to have been more than the principal and interest due on the said mortgage, then that the residue thereof may be paid over to your Orator ; and that your Orator may be at liberty to redeem the said mortgaged premises on payment of the principal and interest, if any, remaining due on the said security ; and that the said W. W. may be decreed, on being paid such principal money and interest, to deliver up possession of said mortgaged premises, free from all incumbrances, to your Orator, or as he shall appoint, and to deliver up all title deeds and writings relative thereto ; and that your Orator may have such other and fur- ther relief in the premises as to your Honors shall seem meet ; and he shall ever pray, &.c. S. T., Solicitor' for Complainant. CHANCERY. 657 Original Bills. VIII. Bill hy first Vendee against Vendor and a subsequent pur- chaser for the specific performance of an agreement, charging the subsequent pui'chaser with notice.^ To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and State of — , in Chancery Sitting : Respectfully represents unto your Honors your Orator A. B., of, &c. that C. D., of, &.C. (and whom your Orator prays may be made a party defendant to this Bill) on or about the — day of — , A. D. — , was the owner in fee simple of certain real estate situate in said County of — , and bounded and described as follows, to wit : Begin- ning, ^c. That the said C. D. being desirous to sell said real estate entered into an agreement with your Orator for the sale thereof to (a). For general Rules in framing a Bill in Equity, See dinte. 586, n. (a). As to the effect of fraud, unfair- ness, and concealment in relation to the Specific Performance of contracts, See 1 Br. Ch. Rep., Perkins' Ed. 385, where the cases are collected. An agreement between Solicitors that there should be a decree of foreclo- sure may be enforced ; ^Br. Ch. Rep. 267. An obligation given by a fath- er to his son, for a conveyance of land, will be specifically enforced, though founded on the consideration 0? blood only ', 4 Bibb, 186. See 3 Marsh. 435. A mere expression of willingness to compromise a land controversy on certain principles, though in writing, cannot be specifi- cally enforced ; 3 Marsh. 197. An award for the conveyance of land may be enforced ; 6 Lilt. 1. An infant cannot sustain a suit for the specific performance of a contract, because the remedy is not mutual ; 4 Russell, 298; 3 Eng. Ch.Rep. 675. Where possession has been taken of land, and improvements made under an imperfect agreement, though the Court >vill not grant relief on the crrouncl of part performance, yet the Bill may be retained for the purpose of affording the party a reasonable compensation for beneficial and last- ing improvements ; 1 Johns. Ch. 273. Where a Vendor waives a forfeit- ure for non-payment, by receiving partial payments from time to time, he cannot stop short at once and claim a forfeiture, without giving previous notice ; 8 Paige, 423. See, also, 6 Monroe, 362. Where the defendant is an infant, in a Bill for specific per- formance of an agreement for the sale of lands lying in another State, the Court may render a decree for a deed to be executed, at full age, according to the laws of the State where the lands lie, and that in the mean time the vendee be permitted to retain pos- session, with an injunction against disturbing the possession or incum- bering the estate ; 9 Paige, 280. A specific performance may be decreed of an agreement, to transfer debts ; Sim. ^ Stu. 607 : For the good will of a trade ; Id. 74 : To build houses ; 2 Vern. 322 ; 2 Eq. Ca. M. 17 ; 3 Atk.blb; 1 Ves. 12, 461; 3 do. 184 ; 8 rfo. 161 ; 3 Sivanston, 437 : To indemnify ; 6 Johns. Ch. 405 : 83 658 CHANCERY. Original Biils. him, and whicli agreement, bearing date the — day of — , A. D. — , was reduced into writing and signed by the said C. D. and your Or- ator, and is to the purport and effect following : [stating the sub- stcmce of the agreement} as by said agreement when produced will appear. And your Orator further represents, That at the time tiie last of said installments fell due, all the others having been duly paid, your Orator called upon the said C. D. and offered to pay him the residue of said purchase money, and desired him specifically to perform said agree- ment on his part and execute a deed to your Orator for said premises ; but the said C. D. refused not only to accept the money so offered to him, but also to perform said agreement on his part. And your Orator further represents. That sometime after the ma- king of said agreement with your Orator, the said C. D. without the knowledge or consent of your Orator, fraudulently sold said premises for an advanced price to E. F., of, &c. (and whom your Orator prays may be made a party defendant to this Bill) and executed a deed To execute articles of separation ; 3 Bro. Ch. Ca. 614 : To create a hfe annuity ; 6 Madd. 253. See, also, 4 Paige, 264. Lapse of time is no objection to a specific performance when the party seeking it has been in the uninterrupted possession ; 3 do. 466. In general the vendor of land failing to convey according to his title bond, through his own laclies, cannot compel the vendee to accept a deed, on the ground that the ven- dee being in possession has sustained no injury ; but if the vendee lull the vendor to repose, by declaiations, "That he will take no advantage, and that it will make no difference, if the deed is not made at the day," he will be compelled to accept a deed after the day ; 2 /. J. Marsh. 409 ; 3 do. 50. A defendant proving an agree- ment different from that insisted on by the plaintiff, may have a decree upon his answer, submitting to per- form ; and a cross Bill therefore, though formerly the course, being unnecessarj', would be dismissed with costs ; 13 Ves. 545. If the Vendor can make a good title at the hearing, it is sufficient ; 8 Paige, 473; 5 Crunch, 262; 3 Bibb. 366 ; See the cases collected ; 4 Br. Ch. Rep. Perkins' Ed. 64. An agreement to sell the wife's es- tate, she not being a party, Avill not be enforced ; 1 Paige, 494 : See 4 Russ. 298 ; 3 Eng. Ch. Rep. 675. Nor where there is no mutuality; 2 Marsh. 345. But See 1 Ed. Ch. Rep. 1 . If there be doubt about the title, it is referred to a master to be examined and reported upon; 1 Pai^e, 246 ; 4 Johns. Ch. 659, 670. For other cases on defective and doubtful titles See 4 Br. Ch. Rep. Perkins' Ed. 64. n. (a) When in tracing a title, A. B. was once the owner, an adverse possession of twenty five years is a sufficient ground for a decree of specific per- formance, notwithstanding the possi- bility that A. B. may have left heirs or devisees who may be protected by disabilities ; 1 Hopk. 436. In a Bill for specific performance all the complainants must be within the saving clause of the statute of limitations, or it is a bar to all ; 3 Marsh. 554. The agreement must be definite and certain, not a mere negotiation ; 14 Pet. 77 : See 4 Wheat, 225. CHANCERY. 659 Original Bills. therefor in fee simple to the said E. F. who now claims the sam^ as absolute owner. And your Orator further represents that the said E. F. at and be- fore the time of his said pretended purchase had full knowledge of your Orator's said agreement, and of his equitable right to said prem- ises. And your Orator further represents, That he has repeatedly, and in a friendly manner applied to the said C. D. and E. F., requesting them to convey said premises to your Orator, which they refuse to do. All which actings and doings of the said C. D. and E. F. are con- trary to equity and good conscience, and tend greatly to the injury of your Orator. Your Orator therefore prays process of subpoena against the said C. D. and E. F., that they on their corporal oaths to the best and utmost of their knowledge, remembrance, information and belief, may full, true, direct, and perfect answer make to all and singular the matters aforesaid, and that as fully and particularly as if the same were here repeated and the said C. D. and E. F. distinctly interrogated thereto; and that on the final hearing the said C. D. may be decreed to specifically perform said agreement on his part; and that said E. F. may be decreed to convey all his right, title and claim in said pre- mises to your Orator, with such covenants as to your honors shall seem fit, or, if it shall appear that the said E. F. is a bona fide pur- chaser, without notice, that then the said C. D. may be decreed to make suitable compensation in damages to your Orator by reason of the premises; and that your Orator may have such other and further relief in the premises as to your honors shall seem meet ; And your Orator shall ever pray, &c. S. T., Solicitor for Complainant. Where a deed has been executed, turn damnificatus ; 2 Bibb, 411 ; 1 Equity will not rescind the contract Marsh. 436 ; 3 do. 257, 488. If a for a mere defect in the title, there judgment on the note for the pur- being no fraud — the remedy is on the chase money be perpetually enjoined covenants — Miter, if the grantor is for failure of title, the contract must insolvent, and is suing for a balance be rescinded — Thepartvcannot keep of the purchase money ; 9 Paige, the land and money too ', 1 J. J. 443. Marsh. 506. On a Bill to rescind by Cases of inadequate consideration Vendee who has sold and delivered collected ; 1 Br. Ch. Rep. Perkins' possession, the second Vendee must Ed. 5. Cases of surprise and im- be a party ; Q J. J, Marsh. 518. A providence ; 2 do. 126. Vendee who rescinds must account The Vendor cannot insist on the for the rents after his purchase ; 4 Vendee's taking a part of the land, Mori. 561. yet the Vendee may insist on it, and For Cases in Ohio, See Wilcox's claim damages for the residue ; and Digest, Title CHANCERY. the Court will direct an issue quan- 660 CHANCERY. Original Bills. IX. Bill for an account of copartnership dealings, a dissolution of the partnership, the appointment of a Receiver and an In- junction. * To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Orator A. B. of, &LC., That on or about the — day of — , A. D. — , E. F. of, &c., (and whom your Orator prays may be made a party defendant to this Bill,) and your Orator, placing mutual confidence in each other, en- tered into an agreement to become copartners in the trade and busi- ness of retail merchants, in equal shares as to the profit or loss, and that such copartnership concern should be formed and carried on and conducted at — , under the name and style of "A. B. & Co." ; and thereupon a certain instrument of writing, or deed of copartnership, bearing date the — day of — , A. D. — , was duly executed between your Orator and the said E. F. in and by which it was agreed [sta- ting the substance (f the deed,] as by said deed of copartnership, reference being thereunio had, will more fully appear. (a.) For general Rules in framing a Bill in Equity, Parties, &c., See ^nte, 586, n. (a). For general Rules regulating In- junctions, See ^nte, 623, n. A submission of three out of five Partners to an award does not bind the five ; 1 1 En^. Com. Law Rep. 50. But See Wright, 420. How far one Partner can bind the Firm by an instrument under seal, See 1 Hall, 262; ^ Kent Com. 4n ; 13P Eastern District of Pennsylvania, ss. ) Personally appeared J. W. before me a Commissioner for the Uni- ted States for the said Eastern District of Pennsylvania, and being duly sworn, on oath, deposes and says, that all and singular the alle- gations in the foregoing Bill are true to his own knowledge, except so far as they are set forth upon his information, and such he verily believes to be true — He further deposes and says, that he verily be- lieves that W. W. was the true and original inventor of the machine or improvements as set forth in the foregoing Bill, and according to the plan, specification and description of the same annexed thereto. He further deposes that the said J. G. is infringing the rights secured 686 CHANCERY. Original Bills. by the Letters Patent, set forth in said Bill, in manner following, to wit, by running one machine at his mill in C. in the State of Ohio, without having any subsisting or valid license or authority for so do- ing, as he, the said J. S., is informed and verily believes. [Signed] J. S. Sworn to and subscribed before me this — day of — , A, D. — . J. B., United States Commissioner for the Eastern Dis- trict of Pennsylvania. United States of America, Eastern District of Pennsylvania, ss. I certify that J. B., before whom the foregoing Bill in Chancery was sworn to, and who has subscribed the above Certificate thereof, was at the time of swearing or administering the oath, and still is, a Commissioner of the Circuit Court of the United States for the East- ern District of Pennsylvania, duly appointed and qualified. Witness my hand and the seal of said Circuit Court at P. this — day of—, A. D. — , and in the Seventy First year of the Independence of the United States. E. P. Clerk of Cii'cuit Court. XVII. Bill for Dower, * To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Petitioner, A, B., of &c., that on or about the — day of — , A. D. — , your Petitioner in- termarried with T. B., then of, &c.; that the said T. B. departed this (a). For general Rules in framing Sheriff, commanding him by the a Bill in Equity, Ske ./5n^e.58S,n. («). oaths of three judicious, disinterest- A Widow entitled to Dower is au- ed inen of the vicinity, to cause thorized, by Statute, to file a Petition dower to be set o.Tcr directed in the in Chancery against the heir or other decree ; Sivmi^s St. 290 § 1, l>, 12. person having the next immediate By the Act of 1843, the Commis- estate of inheritance, and on final sioners are to estimate the yearly hearing the Court render such de- value of the lands from the time of cree as appears just and consistent filing the Petition until the assign- with the rights of all the parties in ment of dower, one-third of which interest ; and thereupon the Court is is to be decreed to the Petitioner : required to issue an order to the The Commissioners are to exclude CHANCERY. 687 Original Bills. life on or about the — day of — , A. D. — , at — , in the County of — , where he then resided, and where his principal Messuage was situate, leaving your Petitioner his Widow, and J. B,, &c., his heir at law, and entitled to the next immediate estate of inheritance in the land and tenements hereinafter mentioned : That the said T. B., du- ring coverture with your Petitioner, was seized, as an estate of inher- itance, of the following real estate, situate, In Chancery. C— D— , ) Exceptions taken by the said complainant to the insufficient an- swer of the said defendant. 1. That the said defendant has not answered and set forth, accord- ing to the best and utmost of his knowledge, remembrance, informa- tion, and belief, whether, &c. (a) The exceptions are filed with the defendant must file a further an- the Clerk, and it, upon the hearing, swer within thirty days after such the answer is adjudged insufficient, adjudication, unless the Court allow CHANCERY. 739 Answers. 2. That the said defendant has not, in manner aforesaid, answered and set forth, whether, &c. In all which particulars the said complainant insists, that the said further time, and on failure thereof, the Bill may be taken as confessed. The second answer may also in like manner be excepted to, and if found insufficient, the defendant will be de- creed to pay double costs, and further time to answer will not be allowed, but a decree pro confesso may be ta- ken, as if no answer had been filed; or the defendant may be examined on interrogatories, and committed un- til he shall answer and pay costs. If the exceptions to the answer be over- ruled, the complainant will be decreed to pay costs, and if the answer be adjudged insufficient, the defendant will be decreed to pay them; Swaii's Slut. 707, § 22, 23, 24. In the Courts of the United States "after an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the Clerk's office exceptions thereto for insufficiency, and no longer, un- less a longer time shall be allowed for the purpose, upon cause shown to the Court or a Judge thereof; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be suffi- cient;" Equity Practice Supreme Court United States, 1842, Rule 61. If the defendant does not, in his an- swer, admit or deny all the material facts and allegations stated in the Bill, according to the best of his knowl- edge, remembrance, information and belief, the answer is said to be insuf- ficient and may be excepted to by the complainant on that account. Lord Red. 75 ; 1 Johns. Ch. 76, 406, 7 ; ^ do. 297 ; 5 do. 247 ; 2 Fes. Jun. 454. As a general rule, ex- ceptions cannot be filed after a repli- cation ; under special circumstances. however, the Court may permit the replication to be withdrawn and the exceptions received; Lord Bed. 75, 76. Exceptions to an answer must be signed b}^ counsel ; 6 Madd, 102 ; 1 Jac. Rep. 224. Where exceptions had been allow- ed to an answer, and the Bill having been amended, the defendant put in a second answer, upon exceptions ta- ken to the second answer, entitled, "Exceptions taken by the said com- plainant to the further answer, put in by the said defendant C. D. to the original Bill of complaint, and his answer to the amended bill of com- plaint filed by the said complainant in this cause," they were held to be irregularly entitled, and were order- ed to be taken off the file, because no new exceptions could be taken to the further answer, but if considered insufficient, it should have been re- ferred back to the Master upon the old exceptions ; 1 Sim. ^ Stu. 426. See, also, 10 Ves. 283 ; 1 i Jo. 570 ; 1 Turn. Ch. Pr. 784. As a general rule, the plaintiff is not allowed to add to or alter exceptions after they are filed, but under special circumstances the rule may be departed from ; Id. Exceptions must state verbatim the interrogatories not answered ; but if the defendant submits to answer the exceptions, it is too late to object to the form of them ; 2 Sim. Sc Stu. 236. See, also, 1 Story C. C. Rep. 296 ; 4 Paige, 88 ; Lube's Eq. 87 ; 2 Sumner, 108. Where there are two or more de- fendants who put in separate and dis- tinct answers, separate exceptions must be filed to each answer; 2 Dick. 609: and where exceptions were ta- ken to the joint answer of two de- 740 CHANCERY. Answers answer of the said defendant is evasive, imperfect, and insufficient ; wherefore, he excepts thereto, and prays that the said defendant may be compelled to amend the same and put in a full and sufficient an- swer to the said Bill. fendants and one of them died, the exceptions were referred as to the answer of the surviving defendant only; 1 Dick. 255. Upon exceptions to an answer for insufficiency, the Master may look to the materiality of them, and may overrule immaterial exceptions; Coop. Hep. 313. In New York, excep- tions for scandal or impertinence, and exceptions for insufficiency, are to be taken at the same time and in the same manner; 1 Johns. Ch. 103. See, Story's Eq. PL § 267, 876 ; 6 Paige, 240 ; 4 rfo. 1 11 , 382. If the answer is evasive it must be excep- ted to ; it is to be taken as the testi- mony of any other witness, and if not explicit the defendant must be pressed by exceptions till he is so; 16 Vermont, 179. Exceptions will not lie to the answer of corporations; Hoist. Dig. 173. Nor to an answer to which the oath of the defendant is waived, for such answers are mere pleading, and not evidence ; 4^ Paige, 604; 1 Clarke, 63. Verbal criti- cisms, slight defects and omissions of immaterial matter, are invariably dis- allowed and treated as vexations ; 1 Ed. Ch. Rep. 7. Impertinence consists in setting forth what is not necessary to be set forth ; as stuffing the plead- ings with useless recitals and long digressions about immaterial mat- ters ; 4 Johns. Ch. 437. If the defendant in his Answer sets up a distinct matter by way of avoid- ance, which is not called for by the Bill, the same, if irrelevant or imma- terial, may be excepted to for imper- tinence, or the complainant may have the benefit of the objection upon the hearing ; 1 Paige, 555. Nothing ought to remain in the Answer, ex- cept that which is called for by the Bill, or would be material to the de- fence, with reference to the order or decree which may be made on the Bill ; 1 Eng. Chy. Pep. Conds. 312. Where new matter, not responsive to the Bill, is stated in the Answer, if such new matter is wholly irrele- vant and forms no sufficient ground of defence, the complainant may ex- cept to the Answer for impertinence, or raise the objection at the hearing ; Lord Red. 385. The best test by which to ascertain whether the mat- ter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence be- tween the parties; 1 Johns Ch. 103, 107. See 1 Sumner, 579 ; 3 Bland, 392 : 1 Ed. Ch. Rep. 350, 372 ; 2 do. 209; Story Fq. PL § 863; 6 Paige, 240, Exception for imperti- nence must be supported in toto, or they will fail altogether ; 1 R. ^' M. 30 ; 1 Beav. 571 ; 4 Paige, 174. The Master's judgment must reach each exception ; 23 Vcs. 332 ; See 11 do. 577; 1 Ed. Ch. Rep- 316. The Answer of an infant is not subject to exceptions ; 4 Br. Ch. Rep. 185. CHANCERY. 741 Replication. Replication.'' Form of Replication. The Replication of A. B., complainant, to the Answer of C. D., defendant. This repliant, saving and reserving to himself all, and all manner of advantage of exception to the manifold insufficiencies of the said answer, for replication thereunto saith, That he will aver and prove his said Bill to be true, certain, and sufficient in the law to be an- swered unto ; and that the said answer of the said defendant is un- certain, untrue, and insufficient to be replied unto by this repliant ; without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in the law to be replied unto, confessed and avoided, traversed or denied, is true ; all which mat- ters and things this repliant is, and will be ready to aver and prove, as this Honorable Court shall direct; and prays, as in and by his said Bill he hath already prayed. (a) When the parties proceed to a hearing on Bill and answer only, without a replication, the answer will be taken to be true in all points ; and no evidence can be received to contra- dict the answer, except matters of record, to which the answer refers, and is provable by such record ; Swan's St. 708, 631. The Court, however, will sometimes permit a re- pUcation to be filed, after the cause is called for a hearing, when it has been omitted by accident or mistake. When by a mistake, a replication has not been filed, and yet witnesses have been examined, the Court has permitted the replication to be filed nunc pro tunc ; Mosley, 926 ; Lord Red. 267. Going to a Hearing on Bill and answer may, in some cases, be regarded as a waiver of arepHcation; 3 Black/. 115. The want of a rephcation is not per se cause for the reversal of a decree ; 1 Bibb, 277; 2 Black/. 115. Where by inadvertence a rephcation was omitted to be filed, and it was not discovered till on the hearing, the party was required to apply to the Court to postpone the cause, and get leave to file the replication on proper terms; 9 Paige, 383. It was former- ly the practice to reply specially to an answer offering new matter. This led to a rejoinder, surrejoinder, &c. The inconvenience, delay, and unne- cessary length of pleadings, arising from these various allegations on each side, occasioned an alteration in the practice, and special replications, with all their consequences, are novv^ out of use ; Lord Fed. 256 ; Prac. Peg. 215. 742 CHANCERY. Hearing and Re-hearing. Hearing and Re-hearing.* On filing a replication the cause is to be considered at issue, and in no case is it nececessary to enter a rule to rejoin ; Sivan's Stat. 703, «^ 32. Depositions are taken at any time, after the filing of the Bill ; (See Depositions, Ante. 473 ;) and in general, all cases ready for Hearing are called on for trial in the order in which they stand on the Docket of the Court. A Re-hearing may be applied for within thirty days after the ma- king of an order on Hearing, by a Petition, signed by counsel, and addressed to one of the Judges of the Supreme Court, or to any two Judges of the Court of Common Pleas, who made the order at the Hearing, to be allowed or not at their discretion ; Swan's Stat. 714, «^ 53. (a) On the demurrer of one de- fendant, the facts cannot, on the Hear- ing, be taken as true against an absent defendant ; 7 £ng. Ch. Rep. Conch. 470. If the defendant does not object the want of proper parties, till the Hearing, the Court will give time to bring them in — the objection should be made by plea or answer ; 4 Paige, 64, 75, 511 ; 13 Pet. 300. A Bill in Chancery, said Lord Hardwicke, is never dismissed for want of parties, but stands over on paying the costs of the day ; 2 Atk. 14. The examination of witnesses viva voce, in open Court, in the Circuit Court of the United State, instead of taking their depositions in writing, is not such an error as will reverse the decree ; 3 Dallas, 184. The execu- tion of necessary exhibits, if not ad- mitted, must be proved by deposi- tions, or viva voce, at the Hearing; 4 Blackf. 134. Exhibits of all kinds, viz : deeds, letters, &c., may be proved viva voce, at the Hearing, provided satisfactory reasons be given why they were not proved in the regular way before the examiner, and provided due notice has been given to the opposite party of an intention to make such proof at the Hearing ; 2 Johns. Ch. 481. A witness examined viva voce may be cross examined ; Id. In England an order to examine viva voce, is first obtained, and a copy ser- ved on the opposite party ; 1 Ncwl. Ch. Pr. 285. ^Such proof is allowed only on the application of the party who is to use the exhibit, but not on the application of the opposite party; 1 Atk. 444 ; 2 Madd. Ch. 427. In such case a subpcena may issue for the witness; 2 Madd. Ch. 427. Exhibits may, on leave given, be pro- ved viva voce, but not other writings ; 3 Marsh. 170: See 2 Johns. Ch. 481 ; where the English cases are collected. The party putting in a plea is to begm and close on the Hearing ; 14 Pet. 216. If parties consent to a separate Hearing, as between themselves, (there being other parties) they can- not take advantage of this on appeal; 1 Dana, 58{>. The Chancellor will sometimes give an opinion, by consent of parties, on the merits, when all the necessary parties are not before the Court ; 5 Dana. 52. The plaintiff cannot take a deeree against one of several defendants till all are before the Court — if the case is ready as to one and heard as to him, a de- cree cannot be rendered — time may be given to bring in the other parties, CHANCERY. 743 Hearing and Re-hearing. FoKM OF Petition for Re-hearing. A — B— , 1 V. >In Chancery. C — D— , ) To the Honorable J. S., one of the Judges of the Supreme Court of the State of Ohio, [or, J. S. and J. N. two of the Judges of the Court of Common Pleas within and for the County of — .] The Petition of C. D, the above named defendant, respectfully shevveth : That your petitioner is much aggrieved by a decretal order made in the above named case on — novi^ last past, whereby it was among or the case may be dismissed with- out prejudice ; 2 Marsh. 3.51 ; 3 do. 520; 1 /. /. Marsh. 419. See 2 Bibb, 441 ; 2 Monroe, 150. That the answer is not sworn to cannot be objected on the Hearing; 1 Marsh. 207. If the plaintiff" goes to a Hearing un- prepared, he should ask for a contin- uance, or else discontinue ; 1 Marsh. 459. In all cases where the Bill is dismissed for want of due prepara- tion it should be without prejudice : 3 Marsh. 520. If after an appeal from a decree on a Master's Report, the parties go on and take new testi- mony, the whole case is open on the Hearing ; 13 Ohio Rep. 505. The rule, that more than one witness is necessary to overcome an answer, Avas adopted from the Civil Law, with great reluctance — it proceeds upon a sort of arithmetical proportion, according to the number of witnes- ses — not standing upon any satisfac- tory reason ; Sir Samuel Romily, arguendo ; 13 Ves. 101. Sometimes on Hearing, the Court will direct an issue at law ; 1 Johns. Ch. 152 ; 5 do. 119: and sometimes will order a Cross Bill to be filed ; 7 Johns. Ch. 250: and sometimes when suspicious circumstances arise on the Hearing, the Court will give time to look into it; 1 Hojf. Ch. Rep. 198, 312. It is a matter of course to order the examination of a co-defendant ; its admissibility to be determined on the Hearing; 24 Ves. 401. It is too late, at the Hearing, to object that the deposition of a co-defendant was ta- ken without leave ; 1 Hoff. Ch. Rep. 25; 11 Ohio Rep. 455. When once one gets beyond the evidence that is before the Court, there is no end of conjecture ; 2 Br. Ch. Rep. 335. Printing a Brief before a cause comes on for a Hearing is a contempt; ^Mk. 471. In 8 Ves. 466, Lord Eldon threatened to commit one who wrote him a letter touching a cause in Hear- ing before him. Sometimes, on Hear- ing, the equity of the case turns out to be, a "political Equity," and some- times, a "judicial Equity;" 3 Ves. 434; and sometimes, an Equity "a good deal in the air ; " 2 Ves. 561. The jurisdiction of the Chancellor cannot be questioned, on the Hear- ing, where the defendant has an- swered, making no objections to the jurisdiction, and has obtained an or- der to stay proceedings, till the ter- mination of another suit involving 744 CHANCERY. Hearing and Re-hearing. Other things ordered, That, etc., and your Petitioner submits that so much of the said decree is erroneous as directs. That, In Chancery. C- D-, S To the Honorable, &c. The Petition of the Piaintift" shovveth, That this cause being set down to be iieard before your Honors, your Petitioner is advised, it will be necessary for him to prove at the Motions and Petitions, as applied to carry into eflect decrees and orders, so as to exclude all discretion in the Court to grant or to refuse them, ac- cording to circumstances ; but, gen- erally speaking, Motions, which have for their object to give effect to de- crees and orders, should be confined to cases where the order, Avhich is to be made upon the Motion, arises out of recent proceedings, concern- ing which there is no doubt ; 13 Ves. 387. See also, 10 Jolms. Hep. 517. Where pending a creditor's Bill, the surety on an appeal bond steps in and pays off the debt, such surety may be let in, on Petition, to prose- cute the Bill for his own benefit ; 12 Ohio Hep. 100. Ske 7 Paige, 21 ; 2 Br. Ch. Rep. 327; 3 Marsh. 217. A new defendant cannot be added to a suit upon Petition ; it must be by supplemental Bill ; 1 Ed. Ch. Rep. 9. After the relation of guardian and ward ceases by the ward's at- taining his majority, the guardian cannot be called to account by Peti- tion ; it must be done by Bill ; 1 Ed. Ch. Rep. 8. If one is likely to be injured by a Bill, it is his right and duty to make himself party by Pe- tition ; 2 /. /. Marsh. 375. A Pe- tition, except for a Re-hearing, need not be signed bv counsel ; 3 Dan. Ch. Pr. 1803. In New York, by a Rule of Court, all Petitions must be sworn to; 1 Hopk. 101. See, 5 Pcnge, 242. Petitions are to be served on the adverse party ; 2 Johns. Ch. 425 ; 3 Hare, 1 69. Personal service will be dispensed with where the par- ty cannot be found; and where an order is served upon the solicitor, if knowledge of such service is brought home to the parly, he will be in con- tempt by not obeying the order, in the same manner as if it had been served upon him personally ; 4 Paige, 405. Interlocutory orders, made upon Motion, may be altered, varied, or discharged upon Motion ; and orders, made upon Petition, may be dis- charged by the same process, for good cause shown ; as mistake, surprise, inequality, «S:c, ; 4 Johns. Ch.li5 ; 3 IJan.Ch. Pr. 1807; 'A Paige, 195, 253 ; G do. 371 ; 2 Murphy, 388. For Forms of Orders, See Orders and Decrees, Post. CHANCERY. 747 Master and Receiver. Hearing thereof, a certain bond bearing date the — day of — , en- tered into by said defendant to your Petititioner, in the penalty of — , conditioned for the payment of — with inteiest. Your Petitioner therefore prays your Honors, that he may be at hberty, at the hearing of this cause, to examine one or more wit- ness or witnesses, viva voce, to prove this said bond. And your Pe- titioner shall ever pray, &c. Master and Receiver.* Masters in Chancery are appointed in each county, by the Supreme Court, and Court of Common Pleas, and are invested with power to (a) The defendant may be exam- ined on oath, upon such interrogato- ries as the Master may direct, touch- ing the transactions set forth in the pleadings, books, papers, &c., produ- ced under the order of reference; 2 Johns. Ch. 513. Upon the books, &c. being produced before the Mas- ter, those parts which do not relate to the subject of litigation may be sealed up; and it is a contempt of Court for the adverse party to break open the parts thus sealed up ; 2 Paige, 294. If there is reason to suppose the party has not made a full disclosure, the Master may ex- amine him as to the fact whether the order of the Court has been fully and fairly complied with ; Id. 432. Viva voce examinations frequently, if not generally prevail in N. York ; 2 Johns. Ch. 499. See, 1 Paige, 122, 247; 1 Mof. Ch. Pr. 536. Where in a Bill to account no items are specified, the Court will refer the case to the Master, and the defend- ant may go into evidence and may be sworn before him ; 3 Paige, 160. The Master, in taking an account, may state special matter, though not so directed by the decree ; 2 ^tk. 620. A reference to a Master is not of course on a Bill for specific per- formance where there is other de- fence than want of title ; 23 Ves. 1. A sale must be under the immediate direction of the Master — if in his absence it will be set aside ; 1 Sug. Vend. 82, n.; 2 Johns. Ch. Rep. 154. For the general powers of a Master, Exceptions to his report, &c.. See, 2 Johjis. Ch. 495, 513 ; 13 Pet. 359; 6 Paige, 127. In the case of Pe7n- sen V. Remsen, (2 Johns. Ch. 495,) the Court laid down the following rules of practice to be deduced from the books, and which ought to pre- vail on the subject of examinations before a Master, so as to unite conve- nience and despatch, with sound principle and safety. 1. That the parties should make their proofs as full, before publication, as ihe nature of the case requires or admits of, to the end that the supple- mentary proofs, before the Master, may be as limited as the rights and re- sponsibilities of the parties will ad- mit. 2. That orders of reference should specify the principles on which the accounts are to be taken, or the in- quiry proceed, as far as the Court shall have decided thereon ; and that the examinations before the Master should be limited to such matters, w^ihin the limits of the order, as the principles of the decree or order may render necessary. 3. That no witness in chief, exam- 748 CHANCERY. Master and Receiver. take depositions in cases at law and in equity ; to issue process to compel the attendance of witnesses ; and to do all other ministerial acts commonly performed by Masters in Chancery ; Sivaji's Stat. 715, <§>59. By the act of 1846 (Ohio Stat. vol. 44, p. 51), Receivers may be appointed, according to the usages and practice of Courts of Equi- ined before publication, nor the par- ties, ought to be examined before the Master, without an order for that pur- jjose, which order usually specifies the subject and extent of the exami- nation ; and a similar order seems to be requisite when a witness, once ex- amined, is sought to be again exam- ined before the Master on the same matter. But it is understood to be the settled course of the Court, (I Vem. 283, 470; 2 Ch. Ca. 249; Mosely, 252; 2 ./ifk. 409; 2 Fo7ib. 452, 4G0, 461, 462) that upon the defendant accounting before the Mas- ter, he is to be allowed, on his own oath, being credible and uncontradic- ted, sums not exceeding forty shil- lings each ; but then he must men- tion to whom paid, for what, and Avhen, and he must swear positively to the fact, and not as to belief only, and the whole of the itetiis so estab- lished, must not exceed 100/. and the defendant cannot, by way of charge, charge another person in this waJ^ The forty shillings sterling was the sum established in the early history of the Court, and, perhaps, twenty dollars Avould not now be deemed an unreasonable substitute. 4. That the Master ought, in the first instance, to ascertain from the parties, or their counsel, by suitable acknowledgments, Avhat matters or items are agreed to or admitted ; and then, as a general rule, and for the sake of precision, the disputed items claimed by either party ought to be reduced to writing by the parties re- spectively, by way of charges and discharges, and the requisite proofs ought then to be taken on written in- terrogatories, prepared by the parties and approved by the Master, or by viva voce examination, as the parties shall deem most expedient, or the Master shall think proper to direct in the given case. That the testimony may be taken in the presence of the parties, or their counsel ; (except when by a special order of the Court ii is to be taken secret!}';) and it ought to be reduced to writing, in ca- ses where the Master shall deem it advisable, by him, or under his direc- tion, as well where a party as where a witness is examined. 5. That in all cases where the Master is diiected by the order to report the proofs, the depositions of the witnesses should be reduced to writing by the Master, and subscri- bed by the witnesses, and the depo- sitions returned Avith his report to the Court. 0. That when an examination is once begun before a Master, he ought, on assigning a reasonable time to the parties to proceed, with as lit- tle delay and intermission as the na- ture of the case will admit of, to the conclusion of the examination, and, when once concluded, it ought not to be opened for further proof, williout special and very satisfactory cause shown. 7. That after the examination is concluded, in cases of reference to take accounts, or make inquiries, the parties, their solicitors, or counsel, after being provided by the Master with a copy of his report, ought to have a day assigned them to attend CHANCERY. 749 Master and Receiver. ty, by the Supreme Court, or any Judge thereof, and by the Court of Common Pleas, or any President Judge thereof, and by the Superior Court of Cincinnati, or the Judge thereof; reasonable notice to be given in all cases to the adverse party, unless, on cause shown, the Court or Judge see fit to dispense with notice. For Forms of Orders appointing Masters and Receivers, See, Ante. 625. before the Master for the settling of his report, and to make objections, in writing, if any they have ; and when the report is finally settled and signed, the parties ought to be confi- ned, in their exceptions to be taken in Court, to such objections as were overruled or disallowed by the Mas- ter. For the nature and duties of receiv- ers, See, Edwards^ Receivers. By the Act of 184G, Receivers, "at the discretion of the Court or Judge ap- pointing them, may be authorized and required, among other things, to collect, settle, and compound for, or by suit in their own names or other- wise, to recover any debt, claim, de- mand, matter or thing, belonging to or concerning the property, estate or business committed to them ;" Ohio (Sfrtf. vol. 44, p. 51, §3. In cases of mortgage. Receivers are allowed Avith great caution ; 3 Ed. Ch. Rep. 588. Where the defendant in a creditor's bill is restrained by Injunc- tion from collecting his debts and dis- posing of property liable to waste, it is the duty of the complainant to ap- ply for a Receiver; 4 Paige, 574. See, 3 Ed. Ch, Rep. 226, 234 ; 8 Paige, 568 ; 6 do. 29 ; 2 do. 342 ; 1 do. 298. Upon a Bill filed by one partner to close up a partnership concern, it is a matter of course to appoint a Re- ceiver, if the parties cannot agree as to the disposition of the property ; 4 Paige, 479. See, 2 Paige, 310 ; 1 Bland, 423. A Receiver will not be appointed merely because part- ners quarrel; 'H Ed. Ch. Rep. 129. See, T. Sf' R. 496; 3 Ed. Ch. Rep. 385 ; Slory's Partnership, § 228, 229. Where it is necessary to pre- serve the good will of the business, the Receiver may be directed to car- ry it on under the direction of the Court until a sale can be effected ; 4 Paige, 479. A partner applying for a Receiver of the stock of a sub- sisting partnership must be prepared to show a case of the grossest abuse, and of the strongest misconduct, on the part of the managing partner ; Gotv on Partn. c. 2, § 4, p. 114, 3 Ed. ; Story^s Partnership, § 231, note 2. Nor will a Receiver be ap- pointed upon a summary application where there is a covenant to refer, and no attempt has been made to sub- mit the matter in dispute to arbitra- tion ; 15 Ves. 10. The Court may require a surviving partner to give security; 1 Desaus. 429. The general rule is not to appoint a Receiver without notice to the par- ties in interest; 1 Paige, 17; 8 do. 373; 3 Ed. Ch. Rep. 393. A strong case must be made out to induce the Court to appoint a Receiver before answer; Edwards^ Receivers, 10 ; 4Paio-e, 313, 574. 750 CHANCERY. Master and Receiver. Words of course preceding a Master's Report. A— B-, ^ V. > In Chancer}'. C_ D-, > The Report of T. X. Master in Chancery, to whom this cause stands referred, for the purpose of staling an account between the parties, pursuant to the interlocutory decree, rendered at — term, A, D. — . Words of Course preceding exceptions to a Master^s Report. A— B— , -) V. > In Chancery. C— D— , ) Exceptions taken by the complainant to the report of T. X. Mas- ter in Chancery, made in this cause, and bearing date, &c. 1. For that the said Master in his said report has stated, that, &c. 2. For that the said Master in his said report has certified, that, &,c. In all which particulars, the said complainant excepts to said re- port, and appeals therefrom to the judgment of the Court. Report of Sale by Master in Chancery. A— B— , ^ V. > In Chancery. C— D— , ) To the Honorable, &.c. In pursuance of an order made in the above cause, bearing date the — day of — , A. D. — , by which, among other things, it was adjudged and decreed, that all and singular the lands and tenements in the said complainant's bill of complaint in this cause mentioned and described, should be sold at public auction by J. S. one of the Masters of this Court, as upon judgme/its at law, which said lands and tenements are described as follows, to wit, [description]. I the said J. S., one of the Masters of this Court, do hereby report, that on the — day of — , A. D. — , by the oaths of A. S., E. S., and T. S., three disinterested freeholders, resident within the said County of — , I caused the said lands and tenements to be appraised in due form of law, and thereupon, after giving public notice of the time CHANCERY. 751 Supplemental Bills. and place of sale, by advertisement, — days, in the — , a newspaper printed in the said County of — , and in general circulation therein, I did, on the — day of — , A. D. — , between the hours of — and — , bein^ the time and place specified in said advertisement, offer said lands and tenements for sale, at public auction, to the highest bid- der, and O. P. then and there bidding for the same the sum of — dollars, more than two thirds the appraisement, and he being the highest and best bidder, I struck off the said lands and tenements to him the said O. P., for the said sum of — dollars ; which money is now in my hands ready to be paid as this Honorable Court shall direct ; And I herewith return a true copy of said appraisement. All which is respectfully submitted. J. S. Master in Chancery. Dated, &-c. See Orders and Decrees, Post. Form of Affidavit of Publication. Personally appeared in open Court, T. W. and made solemn oath, that the notice hereto attached, was published for — days next after — , in a newspaper called — , and that said newspaper was, during that time, printed in the County of — . Supplemental Bills. Form of Supplemental Bill^ To the Honorable The Judges of the Court of Common Pleas within and for the County of — and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Orator A. B. of, &c., that on or about the — day of — your Orator exhibited his Bill of (a). For general Rules in framing bill ; 3 .^tk. 217 ; and if brought iu a Bill in Equity, See ^«/e. 586, n. only by amendment, the Court, on {a). For general Rules regulating hearing, may dismiss the bill; 7 iE^ng-. Supplemental Bills, See Lord Bed. Ch. Rep. Conds. 848. But where 26, 48 ; Bea. PL 299 ; 2 Madd. Ch. circumstances are introduced in an Pr. 464 ; Story'' s Eq. PL 265, 679. answer which have occured subse- The general rule is that events which quently to the filing of the bill, the have happened subsequently to the plaintiff must be allowed to make filing of the original bill ought not amendments to the bill, so as to show to be made the subject of amendment, that such new circumstances men- but that they should be brought be- tioned in the answer are not of the fore the Court by a supplemental colour the defendant represents them. 752 CHANCERY. Cross Bill. complaint in this Honorable Court against C. D,, thereby praying that the said C. D. might be decreed specifically to perform his agreement with your Orator, touching the sale of the farm and prem- ises in the said bill mentioned, and to make, execute, and deliver to your Orator, a deed therefor, your Orator being ready and willing to do every thing on his part required to be performed, in pursuance of said agreement. Your Orator further represents, that the said C. D. appeared and put in his answer to the said bill, as by the said bill and answer, now remaining on the files of this Honorable Court, will more fully appear. Your Orator further represents, by way of supplement, that since the filing of said bill the said C. D. hath caused an action of eject- ment to be commenced upon the law side of this Court, for the pur- pose of turning your Orator out of possession of the said farm and premises : which said action of ejectment is still pending : That your Orator has requested the said C. D. to desist from proceeding in the said action of ejectment, but the said C. D. refuses so to do, and still continues the prosecution thereof. Your Orator therefore prays process of subpoena against the said C. D. and that he may be compelled, on his corporal oath, to the best and utmost of his knowledge, remembrance, information and belief, full, true, direct and perfect answer make to all and singular the premises ; that he may be restrained by the injunction of this Court, from proceeding in the said action of tjectment, and also from com- mencing any other action or proceeding at law for the purpose of turning your Orator out of the possession of tiie said farm and prem- ises ; and that your Orator may have such other and further relief in the premises, &c. S. T. Solicitor for Complainant. ' Cross B]ll. A cross bill presupposes that a bill has been filed by the defendant in a suit against tiie plaintiff', respecting the matter in question in that bill ; and in such case it is a weapon of defence : 7 Johns. Ch. 252. Sometimes, however, a cross bill is brought by one defendant against his co-defendants, in sucli depending suit, where they have opposite claims which the Court cannot determine upon in the bill al- ready filed ; but in such case the original plaintiff must be made a defendant to the cross bill. A defendant is sometimes of necessity and so to obtain a complete answer necessarily filed, it will be dismissed to such circumstances; 1 Madd. Ch. at the hearing, although the plain- }iep.b72; Lord lied. 61. If a sup- tiff' obtains a decree on the original plemental bill is improperly or un- bill; 3 Faige,SS9. CHANCERY. 753 Cross Bill. obliged to resort to a cross bill, in cases where by the rules of plead- ing in equity, he would not be able to avail himself of the matter of his defence in any other vvay. Thus if the matter of defence arises after the cause is at issue; as that the plaintiff has given the defendant a release, or that there has been an award made on a reference after issue joined, which at law may be pleaded, puis darrein continuance ; a defendant in equity cannot avail himself of either by plea or an- swer, and therefore must resort to a cross bill : 4 East, 413 ; 9 do. 82 ; Cooper Eq. PL 86 ; Story's Eg. PL '^SQS. A cross bill is a defence, and so connected with the original bill, that they are always considered but as one cause; 5 Atk. 812. The plaintiff in the cross bill must put in his answer to the original bill, before the defendant to the cross bill can be compelled to answer ; Swan's Stat. 708, §21. A cross bill taken pi'o confesso, may be ordered to be read at the hearing of the original cause ; 2 31ad. 43; 2 Paige, 164. If the books, documents, &c., of the plaintiff are material for the defence, a cross bill for their discovery is necessary ; 5 Paige, 548. It is an invariable rule in England, that a cross bill must be brought before publication is passed in the original cause, and not after, unless the plaintiff in the cross bill will go to a hearing upon the depositions al- ready published ; 1 Eq. Ca. 79 ; Cooper Eq. PL 37. The Form of a cross bill is substantially the same as an original bill. It should state the parties to the original bill, the prayer or ob- ject of it, the proceedings thereon, and the rights of the party exhib- iting the bill, which are necessary to be made the subject of cross litigation ; Cooper Eq. PL 88. In England, it is not indispensable that a cross bill should be filed in the same Court in which the original bill is filed ; Cooper Eq. PL 87 ; 6 Madd. Rep. 115 ; Story's Eq. PL *^400. Whether this doc- trine prevails in the United States is questionable ; but there cannot be a cross bill in a State Court to an original bill in the Circuit Court of the United States ; it must be brought in the same Circuit Court in which the original bill is depending ; Story's Eq. PL '§>400. A bill which does not pray that the cause may be heard at the same time with another cause and one decree be had in both, is not in. form a cross bill ; but if it would seem, if they are calculated to pre- sent one and the same point, although for different objects, they may stand together and be prosecuted at the same time ; 1 Ed. Ch. Rep. 226. 95 754 CHANCERY. Bill of Revivor. Bill of Revivor/* To the Honorable The Judges of the Court of Common Pleas within and for the County of — , and State of Ohio, — in Chancery Sitting. Respectfully represents unto your Honors your Orator A. B. of, &c., that on or about — one C. D, late of, &c., but now deceased, exhibited his original bill of complaint in this Honorable Court against E. F. as defendant thereto, stating as therein is stated, and praying that, &,c., [Inseji the substance of the prayer of the origi- nal bill.] That process was duly issued against tiie said E. F vvlio appeared and put in his answer to the said bill, to which the said C. D. pui in his replication ; and afterwards depositions in said cause were taken by both parties. That afterwards the said cause was re- (a) For general Rules in framing Bill in Equity, See Ante. 586, note (a) In general a revivor is necessary to warrant any proceedings whatever after abatement ; Lord Bed. 77 ; 1 Vcs. 179, 182; 5 Lift. 17; 6 Mon- roe, 373. To this rule there are ex- ceptions : Thus proceedings may be had to preserve the property in dis- pute ; 2 Paige, 368 ; To set aside irregular proceedings in the Master's office ; 10 do. 131 ; Or to punish a party for breach of injunction ; 4 do. 163 ; and in some cases the Court will order the payment of money out of Court to the party entitled to it ; 6 Ves. 250; 3 Johns. Ch. 1. Depositions, &c., cannot be taken, because there is no cause depending, and conse- quently no indictment could lie against the witnesses if perjured ; 2 £q. Ca. Mg. 2. A bill for partition abates by the death of one tenant in common ; and a report of commis- sioners during such abatement is void; 5 Paige, 161 : See also, Storifs Eq. PL 291, 296, 369, Coop. Eq. PI. 65. [f one revives who has no right to, advantage may be taken of it on the Hearing; 3 P. TVms. 348 ; 2 Eq. Ca. Mg. 2. A Bill of revi- vor must show how the party is en- titled to revive ; 6 Eng. Ch. Pep. Conds. 144. On a bill of revivor the defendant cannot go into the merits of the case; the sole questions before the Court are the competency of the parties and the frame of the bill ; 2 Sumner, 385 : See also, 2 En^. Ch. Pep. Conds. 501 ; 2 Sim. 465; 3 P. fVms. 348; Lord Red. 61, 352 ; 3 Br. Ch. Rep. 62, and cases there cited, 3 Ohio Rep. 355. The complainant may add in a bill of re- vivor, supplemental matter proper to be brought before the Court ; 3 Paige, 204. But if such matter be irrelevant or improper, the defendant may object to it by plea, demurrer, or by exceptions for impertinence ; /(/, : See also 2 Sim. 465 ; 5 Johns. Ch. 242 ; 5 Paige, 517. An origin- al and cross bill must both be revived ; Story's Eq. PI. 296. A scire facias is not the proper remedy for reviving a decree in Chancery ; 14 Ohio Rep. 185 : See 4 Hen. ^- Munf. 480. The general rule is strict, that before decree, the defendant cannot revive ; but this rule does not hold after de- cree, because then the rights of the parties are fixed, and the plaintifTand defendant are equally entitled to the CHANCERY. 765 Bills of Revivor. ferred to a Master of this Court to report thereupon, and that some proceedings have been had before the said master, but no general re- port has yet been made in said cause ; and that the said C. D. on or about -^ departed this hfe intestate ; that your Orator has been duly appointed his administrator, and has thereby become his legal representative ; that the said suit and proceedings having become abated by the death of the said C. D., your Orator is, as he is ad- vised, entitled, as the personal representative of the said C. D., to have the said suit and proceedings revived against the said E. F., benefit of it ; Lord Red. 79 ; 3 Jllk. 691; Story' s Eq. PL ^'612. After a decree to account, either party may revive ; 1 Bland, 548. A bill of discovery cannot be re- vived after answer is in and perfected; 1 Pe^. 232; Story' s Eq. PL §371. Nor does a bill of revivor lie to revive a motion ; 2 Marsh. 464. Whether there can be a revivor simply in res- pect to costs : See 1 Johns. Ch. 85 ; Story's Eq. PL §371 ; 2 Paige, 377; Lord Red. 201. Who may revive ; 3 Johns. Ch. 60; 2 /. /. 31arsh. 303 ; 5 Paige, 517 ; 1 Hopk. 86 ; 4 Pick. 139; 5 Yerger, 418; 2 Marsh. 26. Whether heir or execu- tor ; 4 Paige, 51 ; ^ J. J. Marsh. 331 ; 5 Monroe, 574 ; 7 do. 217 ; 4 Litt. 264 ; 2 McCord Ch. Rep. 169 ; 1 Bland, 409. If the defendant dies, the plaintiff may revive or bring a new suit, at his election, for he may be able to make a better case than by his first bill ; 3 Johns. Ch. 60 ; Story's Eq. PL §354, note. It is not necessary in the Courts of the United States, to set forth any of the statements in the pleadings in the original suit, unless the special cir- cumstances of the case require it : Equity Practice Supreme Court United Slates, 1842, Rule 47. It is filed as of course without leave ; 3 Paige, 204. On a bill to revive a former decree, the first de- cree cannot be questioned; '3 Litt. 27S, The defendant cannot by answer show cause against an order to re- vive ; it must be by plea or demurrer; and the putting in an answer is re- garded as a submission to the suit being revived, upon which, notwith- standing any thing that may be con- tained in the answer, it is a matter of course to draw up the order to re- vive ; Lord Red. 77 ; 3 Paige, 204; 3 P. Wms. 348 ; Story's Eq. PL §829 : See Pleas, Ante. 728. An injunction is not dissolved by an abatement ; 2 Paige, 211 ; 4 do. 163: See 1 Dev. ^' Bat. Eq. Rep. 328; 2 Dick. 471. If the defen- dant dies before answer, the bill of revivor, though requiring in itself no answer, must yet pray that the new defendant may answer the original bill ; Hinde, 48. A cause cannot be revived in part, but the whole pro- ceedings, bill, answer, and orders made in the cause must stand revived, for a revivor is but a continuation of the same suit ; and it cannot be a continuation of the same unless it proceeded where the other left off ; 2 Ch. Ca. 8. If one plaintiff' refuse to join in revivor, the other may bring such bill, and make him who refuses defendant ; Hinde, 50. By Statute, on the death of either part}"-, the suit may be revived by Citation, as in actions at law ; Swan's Stat. 384, 686, 715 : See Ante. 470. 756 CHANCERY. Ne Exeat. and to have the said cause in the same state and condition as the same was in previously to the death of the said C. D. Your Orator therefore prays process of subpoena to revive [and oisicer] against the said E. F. [and that the said E. F. may on his corporal oath, to the best and utmost of his knowledge, re- membrance, information and belief, full, true, direct and perfect answer make to all and singular the matters aforesaid,] and that the said suit and proceedings which so became abated as aforesaid, may stand revived, and be in the same phght and condition as the same were in at the time of the death of the said C. D., or that the said E. F. may show good cause to the contrary; and further to stand to and abide such order and decree in the premises as to your Hon- ors shall seem meet : [And your Orator shall ever pray, &c., [Whe7i it is necessary only to revive, the words within brackets are omitted.] Order of Revival. A — B — , and others, ^ v. V Bill of Revivor. C — D — , and others, ) On motion this ^day to the Court, by Mr. G. of counsel for the plaintiff. It is ordered that the suit and proceedings in the said Bill of Revivor mentioned stand revived and be in the same plight and condition they were in at the time of the death of the said J. S. one of the defendants in said original bill. Ne Exeat.* The Supreme Court, or any Judge thereof, and the Court of Com- mon Pleas, or any President Judge thereof, may grant writs of ne (a) This writ is considered in the nature of equitable bail, and will not, in general, be granted upon a le- gal demand, nor under circumstances which would not entitle the plaintiff", to bail at law. For general princi- ples regulating this writ, See, 8 Vcs. 503 ; 14 do. 261 . 1 Jac. ^' Walk. 405; 2 (Zo. 213; 15 Ves. 443; 18 do. 353; 1 Ves. 4- B. 129, 371 ; 1 Turn. «^ Huss. 332, 342 ; I J. C. /?. 1, 364; 6 do. 138: 2 do. 75, 412 ; 7 do. 189 ; 1 Hopk. 496 ; 2 Paige, 606 ; 1 Fes. 94 ; 2 Story's Eq. Je^r. §1465; 6 Randolph, 1H8 ; 2 SteuKirt, 61; 4 Desans. 108; 1 Clarke, .551 ; 5 Sitmner's J^'es. 577. The writ may be issued in New York, m cases of equitable cognizance, not- withstanding the act to abolish im- prisonment for debt ; 5 Paige, 235. It lies between foreigners, and in re- spect to demands arising abroad ; 2 Paige, 606. It may be applied for CHANCERY. 757 Ne Exeat. exeat, upon Bill filed, with an affidavit annexed of the truth of the allegations : If the writ be granted, the Court or Judge will direct to be indorsed thereon the amount in which security shall be given to the complainant ; but if the defendant, by his answer, satisfies the Court that there is no reason for his restraint, or gives security to per- form the decree, the writ may be discharged; Swan's St. 710, ^ 36, 37. Form of Writ Ne Exeat Republica. The;^State of Ohio. To the Sheriff of — County, Greeting : Whereas, it is represented to us, in our Court of Common Pleas, within and for the said County of — sitting in Chancery, on the part of A. B., complainant, against C. D., defendant, among other things, that he, the said defendant, &c., [here set forth the particular cause of complaint] and designs quickly to depart beyond the limits of this State ; we therefore hereby command you, that you do without delay cause the said C. D. personally to come before you, and give sufficient bail or security in the sum of — dollars, [the sum fixed by the Court or Judge] that he, the said C. D., will not depart be- yond the limits of this State, without the leave of our said Court ; and in case the said C. D. shall refuse to give such bail or security, then you are to commit him to the jail of said County, there to be kept in safe custody, until he shall do it of his own accord ; or shall be otherwise legally discharged ; and when you shall have taken such security, you are forthwith to make and return a certificate thereof to us in our said Court of Chancery, under your seal, togeth- er with this writ. Witness, &-c. at any stage of the suit ; 1 Faige, 1 Hoff. Ch. Pr. 91 ; 1 Hopk. 498. 629. If the defendant, in the pro- Affidavits may be read both in sup- gress of the suit, threatens to leave port of and against a motion to dis- the country, the writ may be applied charge the writ ; 1 Jac. <^* Walk. for by petition, without its being 314; 1 Hoff'. Ch. Pr. 36.3; ^ Ed. prayed for in the Bill, and without Ch. Rep. 230, 231. See, Bills in an amendment to insert such prayer ; Chancery, Jlnte, 586, note (a). 758 CHANCERY. Appeal. Appeal.'' By tlie Act of 1831, an Appeal lies, of course, to the Supreme Court, from any final sentence or decree in the Court of Common Pleas, the appellant entering upon the Journals of the Court his in- tention to appeal, during the term in which the decree is rendered, and giving bond and security to the adverse party, within thirty days after the close of the term ; Sivan's Stat. 71.3, *§> 52. (a) There is, it seems, no precise, definite rule, to determine when a decree is final, or when it is interlo- cutory. See, Orders and Decrees, Post; where the leading cases are col- lected. In 1 ^tk. 295, it is said that by the Civil Law, no appeal lies but from a definitive sentence, or what is termed ^^ Gravamen Irreparabile;" but by the Canon Law, as in Equity, an appeal lies from any sentence ; S. C. 1 West. 27. By the Act of 1831, "Any person, or the heirs or personal representa- tive of such person" may appeal ; Swan's St. 713, § 52. The gener- al rule is, that no person can appeal unless he be a party, or represents a party in the matter in the Court be- low ; 2 Paige, 478. See, also, 7 Paige, 18, 48, 321 ; 11 Wend. 238; 5 Cowen, 719; 1(3 Ohio Rep. 445, But it is not necessary that a party should have appeared in the Court below, to entitle him to an Appeal; 9 Paige, 322. Any one of several against whom the decree is render- ed, may appeal from it; 1 Dana, 366. A party is not allowed to ap- peal piece-meal; the rule is that if a party appeals from a part of a de- cree, he admits the remainder to be correct; 3 Pligh, 261 ; 3 Dan. Ch. Pr. 1610. In England the rule is, that an Appeal does not stop the pro- ceedings under the decree appealed from, without a special order of the Court; but in New York, an Appeal does stay all proceedings on the point appealed from, unless leave to pro- ceed be obtained from the Chancel- lor; 1 Johns. Ch. 80; 14 Ves. 585. See, 4 Paige, 279 ; 3 do. 90. How far an appeal stays proceedings in the Court below; See, 3 Johns. Ch. 66, 123, 160; 1 Bland, 15. An Appeal from a decree in Chan- cery is nothing else but a proceeding in the original cause : It is continu- ing the case, and suspending or va- cating the decree till the final hear- ing in the appellate Court ; 3 Ohio, 541. If notice of the Appeal be not given in time, or if the Appeal bond be not filed within the thirty days, or if it does not include the costs in the Court below, the omission, in either case, ousts the Supreme Court of ju- risdiction ; 4 Ohio, 175. But if in such case the Supreme Court quash the Appeal, on account of a mistake in the Appeal bond. Equity may grant a new trial, if it appear that the appellant has a fair case : lb.; 2 /. /. Marsh. 513, Where a decree in the Common Pleas is reversed on Bill of Review in that Court, an Ap- peal from such decree of reversal does not bring the original case into the Supreme Court, but the Bill of Review is considered as if it had originated in the Supreme Court to review one of its own decrees; 7 Ohio, 184, Part 1st. The Act of 1836, permitting new appeal bonds to be given, where old ones were de- fective, extends to cases pending at the time of its passage; 7 Ohio, 247, CHANCERY. 759 Bills of Review. By the Act of 1843, no appeal can be taken in cases of divorce and alimony ; Ohio Stat. vol. 41, p. 94. See, 15 Ohio Rep. 404. By the Act of 1845, any party may appeal his separate part of the suit, the Court directing the amount and condition of the bond ; Ohio Stat. vol. 43, p. 125, §6. Notice of Appeal is commonly entered upon the Journal immedi- ately following the decree, thus — " Notice of Appeal by the defend- ant, or plaintiff, or by both parties." Bills of Review. Form of Bill of Review upon Errors in Law.^ To the Honorable the Judges, &c. \the Court which pronounced the original Decreed] Respectfully represent unto your Honors your Orators A. B. &.C., that on or about the — day of — A. D. — , C. D. &c., of &c., exhibited their Part 1st. A final decree is one that settles the rights of the parties, and when further decrees become neces- sary to carry into effect the rights of the parties, and errors occur in their rendition, such errors may be correc- ted by Appeal ; but in such Ap- peals nothing is before the Court ex- cept the proceedings subsequent to the decree that settled the merits; 7 0/iio, 48, Part 2nd. See, 13 Ohio, 505; '2,Har. 4' Gill. 191 ; 12 Ohio, 1. A decree to sell mortgaged prem- ises is a final decree, and is not open- ed by an Appeal from the decree confirming the sale; 7 Ohio, 48, Part 2d. Under the Act of 1831, giving an Appeal, "from any final sentence or decree," an Appeal lies from a decree in the Common Pleas, taken by consent of parties ; 9 Ohio, 189. A final decree, it seems, is one that concludes the rights of the parties ; 76. A notice of Appeal marked by the Court on its docket but not car- ried into the Journals is not a com- pliance with the Statute requiring such notice to be entered upon the Records : nor can the omission be cured by a nunc pro tunc order at a subsequent Term ; 10 Ohio, 197. An Appeal bond is good against sure- ties, though not executed by the ap- pellant ; 10 Ohio, 445. Any paper coming within the legal definition of a bond will sustain an Appeal till the Court orders a new one to be filed ; 1 1 Ohio, 420. On Appeal from the confirmation of a Master's report, if the parties file pleadings anew, and take testimony on the merits, the whole case will be considered as open ; 13 Ohio, 505. See, also, 15 Ohio, 274; and Wilcox's Digest, Appeal. (a) By the Act of 1831, "any person who was a party to a decree of a Court of Chancery," his heirs, executors, or administrators, may file a Bill, to review the proceedings in which such decree was rendered, at any time within five years after the rendition of the decree. If the person entitled to such Bill be an in- fant, feme covert, non compos men- tis, or imprisoned, the Bill may be filed within five years after the re- 760 CHANCERY. Bills of Review. original Bill of complaint in this Honorable Court, against your Ora- tors, and E. F., of, &c., stating as is therein stated, and praying as is therein prayed ; whereto the defendants answered and the com- plainant's replied, and depositions were taken ; and afterwards, at the Term of — now last past, the said cause, coming on to be heard before this Honorable Court, it was thereupon ordered, adjudged and decreed, that, &c. [setting forth the substance of the decree."]* And your Orators aver and say, that they are aggrieved by the said decree, and that they ought not to be bound thereby, nor should any such decree have been made or pronounced against your Orators ; neither ought your Orators to pay, &c., as by the said decree is ap- moval of such disability ; Sivmi's St. 714, § 54. If the Bill be brought upon errors in law appearing in the body of the decree or proceedings themselves, it may be filed as an original Bill in Chancery, as a mat- ter of course ; but if it be brought upon the discovery of new matter, since the hearing on the -former de- cree, it can be filed only by leave of the Court to which it is exhibited ; Id. § 55. By the Act of 1838, in cases of Bills of Review in the Supreme Court, if the subpcena be served ninety days before the term, the de- fendant is required to plead, answer, or demur, within forty days after ser- vice of the subpoena, and the com- plainant is required to except or reply within twenty days after the time limited for answer, &c. : But if the Bill be filed six months before the Term, then the defendant has sixty days to answer, &c., and the complainant thirty days to except or reply ; Swan's St. 717, §1,2. By the Act of 1848, whenever any party, complainant or defendant, seeks a review of any final decree or order, sucli party may file in the Clerk's Office of the Court in which the decree was rendered, a short pe- tition, setting forth the names of the parties, the substance of the decree or order sought to be reviewed, and an assignment of the errors rehed on, and a prayer for reversal; and er- rors in law and in fact may be as- signed at the same time ; Ohio St. Vol. 46, p. 90. The same statute provides also, that the Bill of Re- A'iew, need not recite anj' of the facts set forth in the pleadings in the orig- inal cause, and that the original pa- pers and evidence, and entries, shall be used on the hearing of the Bill of Review ; Id. § 3. What is and what is not a final de- cree or order, See, Orders and De- crees, Post; and Appeal Ante, 758. Decrees in Equity, as well as judg- ments at Law, are deemed tobeinroll- ed, as of the Term at Avhich they are passed, whether actually inroUed or not; 5 Mason, 303; 13 Pet. 013. There may be a compound Bill of Review, Supplement and Revivor; 13 Pet. 13. In England, the decree recites the substance of the Bill and answer and pleadings, and also the facts on which the Court founds its decree, and therefore the rule is, that no Bill of Review lies, except where such errors are apparent on the face of the decree ; but in Amer- ica the decree does not ordinarily re- cite either the Bill, or answer, or pleadings ; and generally, not the facts on which the decree is founded ; but with us, the Bill, answer, and other pleadings, together with the de- cree, constitute what is properly con- sidered as the record ; and therefore. CHANCERY. 761 Bills of Review. pointed ; and that the same decree is erroneous, and ought to be re- versed ; and for error do, according to the form of the Statute in such case made and provided, and the course of this Honorable Court, assign the errors therein as follows : First, your Orators say, and hope to maintain, that, &c. ; Secondly, that, &c., which appears by, &.C., to be fraudulent and corrupt ; Thirdly, that — was not ahve at the time of the said decree made in the said cause against your Orators, and so could not be bound by the said decree ; and con- sequently your Orators ought not to be bound thereby ; for all which, in truth, the rule in each country is precisely the same in legal effect, al- although expressed in different lan- guage ; viz : that the Bill of Review must be founded upon some error ap- parent upon the Bill, answer, and other pleadings and decree ; and that you are not at liberty to go into the evidence at large in order to estab- lish an objection to the decree, found- ed on the supposed mistake of the Court in its deductions from the evi- dence ; Per Story Justice ; 13 Pet. 13, 14. See also, 2 Ohio, 372 ; 7 do. 184, Part 1st. And if the facts be found in the decree, the Court, on Review, will not inquire whether they were sufficiently proved or not; 15 Ohio, 313 ; 16 do. 145, 412. See Forms of Orders and Decrees, Post.; ^Paige,mS; i Hay w. 189; 6 Monroe, 153; 1 Dev. 4* Bat. Eq. Rep. 108, 110; 1 Litt. 271. Only parties or privies, as heirs, execu- tors, or administrators, can ordinarily bring this Bill ; Wyatt, 95 ; Story'' s Eq. PI. § 409 ; 3 Paige, 368 ; Litt. Ca. 125. A person interested m the cause, if not aggrieved by the er- rors assigned, cannot maintain the Bill, however others may be injured; 10 Wheat, 140; Stonjs Eq. PI. § 409 ; \^ Pet.Q; 1 Hopk. 102. But as a general rule, all the parties to the original Bill ought to join in a Bill of Review ; 8 Pet. 252. See, 7 Dana, 89 ; 5 Mason, 308 ; 9 Pet. 787. A Bill of Review does not lie upon a decree by consent ; 3 Sivan- 96 ston, 658 ; 1 Hopk. 102. Nor where the plaintiff himself has dis- missed his Bill ; 1 Car. Law Repos- itory, 376. Those who acquire rights after the final decree, are to be made parties to the Bill of review, and if the decree be reversed, the Bill of review is re- garded as a supplemental Bill ; 2 Ohio, 372. Where a decree, in the Common Pleas, dismissing the Bill, is reversed on Bill of review, in that Court ; and on appeal, the Bill of re- view is dismissed, on Hearing, in the Supreme Court ; such decree of the Supreme Court cannot be reached by a'second Bill of review; 7 Ohio, 184, Part 1st : See 1 Vern. 441 ; Story's Eq. PL §418 ; 2 Paige, 45. Such defence may be setup in the answer; lb. The Supreme Court treat such a ^case as if the Bill of review had originated in that Court to reverse one of its own decrees; lb. A Bill of review does not lie on a decree for Divorce; 7 Ohio, 125, Part 2d. A Bill of review lies to a decree against heirs, on their ancestor's con- tract to convey land, on the ground that the personal representative was not a party to the original Bill; 8 Ohio, 377. So, if the decree be against infants, on default, without proof; lb. The admission of incom- petent testimony is good ground for a Bill of review ; 14 0/«'o, 122. So if the Bill alleges title in several, and the proof shows a right to recover in one only ; Id. A decree pro confes- 762 CHANCERY. Bills of Review. and for divers other errors and imperfections in the said decree and proceedings, your Orators have brought this their Bill of Review ; and humbly conceive they should be relieved therein. Your Orators therefore pray process of subpoena against the said C. D., &c., that they may answer the premises, that said decree and all proceedings thereupon may be reviewed, reversed, and set aside, and no further proceedings taken thereon ; and that your Orators may be relieved in all and singular the premises according to equity and good con- science : And your Orators shall ever pray, &c. Form of Bill of Review on Discovery of new Matter.^ [Proceed as in the last Form to the (*) — And your Orators show unto your Honors, by leave of this Honorable Court first had and so Avill not be reversed because the record may not disclose the evidence on which the Master's report was founded ; 16 Ohio, 66. Under the Statute regulating proceedings against non-residents, which requires "a sum- mary statement of the object and prayer of the Bill" to be published, the notice is good if it be sufficient to put the party on inquiry, and ad- vises him what interest is sought to be affected ; Id. Neither error in form only, nor matter of abatement, will reverse a decree ; Jeremy PI. 85 ; Story's Eq. PL §41 i. In case of miscasting and miscounting, where the matter demonstratively appears from the decree itself lo be mistaken, it may be explained and reconciled by order; Harr. Pr. 155; Gilb. For. 184. By miscasting is to be understood, not any pretended mis- valuing but only error in the auditing and numbering; Id: See Seaton's Decrees, 399. The general rule is, that to entitle a person to bring a Bill of review it is necessary that he should have obeyed and performed the decree ; 2 Johns. Ch. 488 ; 3 do. 124. But if any act be decreed to be done which extinguishes the party's right at common law, as making assurance or release, acknowledging satisfac- tion, cancelling bonds, and the like, those parts of the decree are to be spared until the Bill of review is de- termined; Bccmi's Ord.4; Lube Eq. 13&; 3 Johns. Ch. 124. So where the party is insolvent ; 3 3Inrphy, 159 : Or has given security for the performance of the decree ; Id', 2 Hcmk's Eq. Rep. 298. The prayer of the Bill may be simply that the decree may be re- viewed, and reversed in the point complained of, if it has not been car- ried into execution ; 17 Ves. 177. If it has been carried into execution, the Bill may also pray the further de- cree of the Court to put the party complaining of the former decree in- to the situation in which he would have been if that decree had not been executed ; and if the Bill is brought to review the reversal of a former decree, it may pray that the original decree may stand ; Id. (a) For general rules regulating Bills of Review, See Ante. 759, note (a). It is the well settled rule, that leave of the Court must first be ob- tained before a Bill of review can be filed to reverse a decree upon new facts, or facts newly discovered ; 17 CHANCERY. 763 Bills of Review. obtained for that purpose, that since the hearing on the said decree as aforesaid, your Orators have discovered new matter of conse- quence in the said cause, particularly, as the fact is, that the said J. S. was, in his life time, seized in fee simple of and in the lands and tenements in question in the said cause, and that the said J. S. when so seized, and when of sound mind, duly made and published his last will and testament in writing, bearing date on or about — , which was executed by him, and attested in such manner as by law is re- quired for passing real estate by devise, and duly admitted to probate by the Court of — , on or about — now last past, and thereby gave and devised unto the said F. W. his heirs and assigns forever, the said lands and tenements in question, in the said cause, which your Ora- tors claimed to be entitled to as purchasers thereof, from the said F. Ves. 178; Story's Eq. PL §412; 5 Mason, 315; 10 TVheat. 146; 3 Paige, 653 ; 4 /. /. Marsh. 500 ; Swan's Stat. 714, §54. Such prior leave is obtained on Motion or Peti- tion, acompanied by proper affidavits; Blake Ch. Pr. ;55 : See 5 Mason, 315; 9 TVheat. 788. And it seems necessary to state in the Bill the leave to file it, as well as the fact of the dis- covery ; 2 Atk. 534 ; IG Ves. 348 ; Equity Draftsman, 445. The ap- plication for leave to file the Bill must describe the new evidence distinctly and specifically and state when it was discovered, and its bearing on the decree ; 5 Mason, 303. It is not sufficient to state that the peti- tioner expects to prove certain facts; Id. On hearing such petition, affidavits may be admitted on both sides ; Id. See 2 Harr. ^' Johns. 230 ; Story's Eq. PI. 420. If the Bill be filed without leave, it may be dismissed on motion ; 1 Bland, 125. That a Bill was filed without leave will not be fatal at the hearing, when no advantage has been taken of it before, and the Bill has merits; 5 Dana, 190. Under the Act of 1831, the prac- tice has been to present to the Court in the first instance the Bill contain- ing an assignment of errors, and the proper affidavit ; and if leave be given to file it, an entry is made according- ly on the Journals of the Court. Leave to file the Bill rests in the sound discretion of the Court ; 5 Ma- S6»n, 315; 1 Bland, 125. It may be refused although the facts, if admit- ted, would change the decree, where the Court, looking at all the circum- stances, shall deem it productive of mischief to innocent parties, or for any other cause unadvisable; Id. See also. Story's Eq. PI. §417 ; 10 fr/ieat. 146 ; 9 Pet. 789. The new matter must have come materially and substantially to the knowledge of the party, or his agents, after the decree, or at least after the time when it could have been advantageously introduced in the former cause ; 3 Dati. Ch. Pr. 1733; 16 Ves. 87; 5 Mason, 303 ; 1 Bibb, 455 ; 4 Paige, 259 ; 3 Johns. Ch. 124 ; 2 do. 488. See also. Story's Eq. PI. §413; 1 Dev. 4- Bat. Eq. Pep. 108 ; 2 Stew, and Port. 417 ; 1 Hopk. 102 ; 1 Hen. &' Mlnnf. 13 ; 2 Harr. S,- Johns. 230. The allegation in the Bill that the matter of fact is new, is traversa- ble by plea or answer, and must be proved, if not admitted at the hearing; 5 Mason, 303, 309 : Lube Eq. PL 132. It seems now to be established, that matter discovered after a decree has been made, though not capable of being used as evidence of any 764 CHANCERY. Bills of Review. W. And your Orators further show unto your Honors, that since the rendition of the said decree as aforesaid, and on or about — , the said C. D. departed this Hfe intestate, leaving, G. H, Slc, his heirs at law, who, as such, claim to be entitled to the said lands and ten- ements, in exclusion of your Orators. And your Orators are advised and insist, under the circumstances aforesaid, that the said decree, in consequence of the discovery of such new matter as aforesaid, ought to be reviewed and reversed ; and for effectuating the same, the said several proceedings, which became abated by the death of the said C. D. should stand and be revived against the said G. H. &c., as his heirs at law. Your Orators therfore pray process of subpoena against the said — , that they may answer the premises, that the said suit may be revived against the said G. H., &,c. ; and thing which was previously in issue in the cause, but constituting an en- tirely new issue, may be the subject of a Bill of review, or of a supplemental Bill in the nature of a Bill of review; Story's Eq. PL §410. The constant defence to a Bill of review for errors apparent upon a decree, has been said to be, by plea of the decree, and demurrer against opening the enrollment ; Coop. Eq. PL 215; 2 Atk. 534. This rule however is not now observed in England ; and the English books of practice contain the forms of demur- rer, as the proper defence to such a Bill, and there arc cases accordingly; 1 Ch. Ca. 122; 1 P. Wms. 139. In this State where errors are assign- ed upon the whole record, a demur- rer seems to be the only proper mode of making up an issue ; 2 Ohio, "327. The demurrer is in the common form. See ^tite. 699, 717. A Bill of review itpon the discovery of neiv matter, being exhibited only by leave of the Court, the ground of the Bill is generally well considered before it is brought ; and therefore, in point of substance, it can rarely be liable to a demurrer ; but if the de- fendant conceives the new matter to be irrelevant, he might probably take advantage of it by demurrer, although the relevancy ought to have been considered at the time leave was given to file the Bill ; Coop. Eq. PL 215; 2 Jitk. 40; Story's Eq. PL §630. Where any matter out of the de- cree, as length of time, a purchase for a valuable consideration, or any other matter, is to be offered against opening the decree; that matter must be pleaded ; 2 Mad. Ch. 543 ; 2 Ves. Sen. 109 ; Pro. P. C. 107. A Bill of review upon the discovery of new matter seems liable to any plea which would have avoided the CiTect of that matter, if charged in the original Bill. It appears to have been doubted whether the fact of the discovery of the matter alleged to support a Bill of review, can be traversed by plea, after the Court upon evidence of the fact, has given leave to file the Bill ; but if the fact of the discovery is in issue in the cause, it ought to be proved, as a ground for reviewing the decree, and it may consequently be disproved bv evidence on the part of the defendant ; 2 3/ad. Ch. 543 ; Lord lied. 36, 60. The Court may, at their discretion, on motion, stay the proceedings on the original decree, until further or- der or final decree in the Bill of re- view, provided the motion be made at the proper time ; Sivan's Slat. 714, §55. CHANCERY. 765 Bills of Review. that said decree and all proceedings thereon may be reviewed and re- versed ; and that the said G. H. &c., may be decreed to put your Orators into possession of the said lands and tenements, and in the same situation in every respect, as far as circumstances will now per- mit, as your Orators would have been, in case such decree had never heen pronounced and executed ; and that your Orators may be re- lieved in all and singular the premises according to equity and good conscience : And your Orators shall ever pray, &c. Affidavit. The State of Ohio, — County, ss. I, A. B. being duly sworn depose and say, that the matters set forth in the foregoing bill as new matters, were first discovered by me since the hearing on the decree in the foregoing bill mentioned, and that the same could not possibly be had or used at the time when said decree was passed. Sworn, &,c. Motion for Leave to file Bill of Review. This day M. O. of counsel for C. D. moved the Court for leave to file a bill of review in this cause on the ground that since the hearing on the decree rendered herein at — Term A. D. — , he has discov- ered new matter of consequence in the said cause, that is to say, that the said C. D. on, &c., did, &c., which the said C. D. could not possibly know, so as to make use thereof, in his defence at the time of pronouncing said decree ; and thereupon the affidavits of the said C. D., &c., in that behalf being read and heard ; and the premises duly considered, It is ordered, that said motion be granted, and that said C. D. have leave to file his said bill of review upon the grounds of the discovery of the new matters aforesaid. The Bill being filed, process issues as in other cases ; See Ohio Stat. Vol. 46, p. 90, §2. For the Form of a Demurrer to Bills of Review, See Demurrers, Ante. 699, 717. 766 CHANCERY. Orders and Decrees. Orders and Decrees, Some leading Rules concerning Orders and Decrees in Chancery are arranged below under the following Heads : I. Forms of Orders and Decrees. II. Interlocutory and Final. III. Pro Confess© and by Default. IV. Nature and Effect of. V. How Opened, Impeached, or Set Aside. I. Forms of Orders and Decrees. Decrees in Equity, from the nature of the relief given, and the number of parties often interested, are far more complicated than judgments at Law, which are usually simple in their Form ; as that the plaintiff do recover his damages, his term, &c.; 1 Wood, Sec. 203. In England, it is the practice, first to recite the substance and scope of the pleadings, and then set out, at length, all the material facts found by the Court, upon which the opinion of the Chancellor rests ; and it has long been there a settled rule, that upon a Bill of Review the Court will not inquire into the sufficiency of the proof of any fact, but the original Decree upon the effect of evidence is to be taken as conclusive; 16 f^es. 348; 2 Johns. Ch. 17; Coop. Eg. 89; 10 Yei'ger, 41 ; 1 Root, 521. Formerly, however, a different rule prevailed to some extent ; for in 1 Tern. 215, it was objected against a Bill of Review, that they had assigned errors collected from the proofs in the cause that did not appear in the body of the decree. But " the Lord Keeper observed, that was occasioned by the ill way they had got of late in drawing up Decrees in general, Avithout particularly stating the matters of fact." In Ohio, a Decree is not required either to recite any part of the pleadings, or to set out the facts found by the Court ; and on Bill of Review, errors may be assigned in any part of the record ; 2 Ohio Rep. 372 ; 7 do. 184, Part 1st. The Decree, however, may, if the plaintiff chooses, set forth the facts found by the Court; 15 Ohio Rep. 313. But if the facts be found in the Decree, the Court, on Review, will not in- quire into the sufficiency of the proof; 15 Ohio Rep. 313 ; 1(J do. 145, 412; 13 Pet. 13. By the 86th Rule of the Supreme Court of the United States, 1842, it is provided that, " in drawing up Decrees and Orders, neither the Bill, nor Answer, nor any other Pleadings, nor any part thereof, nor the report of any Master, nor any other i)rior proceeding, shall be recited or slated in the Decree or Order ; but the Decree and Order shall begin in substance as follows : ' This cause came on to be CHANCERY. 707 Orders and Decrees. heard [or to be further heard, as the case may be] at this Term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz ;' " The Report of the Commissioners upon the Practice of the Court in Chancery in England, contains the following observations on this point : "We have taken some evidence, and have had much consideration as to the propriety of establishing a shorter mode of drawing up De- crees than is now in use. We find that, in the opinion of very many experienced persons, the advantage of having the nature and sub- stance of the case set forth in the document which contains the decision, overbalances any evil which results from its length ;" Com- missioner's Report, page 18. See, Formal Parts of Decrees, Post. 11. Interlocutory and P'inal Decrees. Ordinarily, a Decree is termed Interlocutory where it is pronounced for the purpose of ascertaining matter of law or fact previous to a final Decree ; 1 Newl. Pr. 322. In Interlocutory Decrees, the con- sideration of the particular question to be determined, or of further directions generally, is reserved : And the further hearing is termed, upon Further Directions, or upon the Equity Reserved ; Id.; Sea- tori's Foi'ms, 2. Interlocutory Decrees or Orders cannot be pleaded ; Id. The Court may at any time set aside an Interlocutory Decree ; 2 Cranch, 33 ; 13 Ohio, 408. A Final Decree is one that settles the rights of the parties ; and when further Decrees become necessary to carry into effect the rights of the parties, and errors occur in their rendition, such errors may be corrected by Appeal ; but in such Ap- peals, nothing is before the Court except the proceedings subsequent to the Decree that settles the merits ; 7 Ohio, 48, Part 2d; 13 do. 408, 505; 12 do. 1. A Decree to sell mortgaged premises is a Final Decree, and is not opened by an Appeal from the Decree confirming the sale ; 7 Ohio, 48, Part 2d ; 7 Paige, 1 9 ; 4 Dana, 559 ; 2 Munf. 154. A Decree is Final which settles the merits of the case, and where the Courts are not to be called upon again to act, either upon an Equity Reserved, or upon Further Directions; 7 Paige, 18 ; 8 ?Fend. 224; 1 Leigh, 108; 9 Ohio, 117; 1 do. 372. A decretal Order upon which an execution may be taken out is Final ; 1 McCord Ch. 32. See, Appeal, Ante. 758, note (a). A Decreee of Dismissal in the Court of Common Pleas, though pronounced pro forma, the parties understanding the case was to be Appealed for preparation and hearing, is Final, if the Appeal be not consummated, and is a bar to a second Bill : The defence may be set up in the answer ; 6 Ohio, 528; 8 do. 214; 7 Vin. Abg. 397; Contra, if it be only on a dismission ; 14 Pet. 156. A Decree, Y68 CHANCERY. Orders and Decrees. upon the coming in of a IVIaster's Report, on a Bill for Specific Per- formance, ascertaining the quantity of land to be conveyed, and the balance of money to be paid, that the conveyance should be execu- ted on such balance being tendered, is a Final Decree ; 1 Johns. Ch. 85. A Decree for partition, appointing Commissioners to make the partition and report at the next Term, is Final ; 1 J. J. 3Ia7'sh. 459. A Decree directing lands to be conveyed by a Commissioner, is Final; 2 Litt. 261. See, 8 Bana, 14 ; 4 Paige, 561. A Decree upon a Bill of Interpleader, that the Bill is properly filed, is a Final Decree; 1 Cowen, 691. A decree may be Einal as to one of seve- ral defendants, and Interlocutory as to others ; 2 Bibb, 441 ; 1 Rand. 42 \. An Order for an Attachment, containing a determina- tion that the defendant is in contempt, is Final ; 4 Paige, 378. So an Order refusing to dissolve an Injunction, and awarding Costs ; 4 Johns. Ch. 510. So an Order granting an Injunction ; 14 Johns. 65; 6 JVend. n. See 8 Pai^e, 176 ; 2 Wend. 225. An Order directing an issue is Interlocutory ; 16 Pick. 141. So an Order au- thorising an executor to sell lands for the payment of debts ; 2 Munf. 42. No case can be found in which a Decree, directing a reference to a Master, or a feigned issue, for the purpose of ascertain- ing any material fact in the case, has been held to be a Final Decree. Per Spencer C. J.; 17 Johns. 558. See, 9 Paige, 636 ; 8 Wend. 219 ; 4 Porter, 73. But a Decree may be Final, although it directs a reference to a Master, if all consequential directions depending up- on the result of the Master's Report are contained in the Decree, so that no further Decree of the Court will be necessary, upon the confirmation of the Report, to give the parties the full benefit of the previous decision of the Court; 7 Paige, 18 ; 8 Dana, 14. It is a general rule, that an Order which does not put a final end to the case, nor establish any principle which will finally afl'ect the merits of the case, nor deprive the party of any benefit which he may have at a final hearing, ought be considered an Interlocutory Order, and so not to be appealed from ; 1 McCord Ch. 351. See, Bills of Re- view, Ante. 759. TIL Pro Confess© and By Default. It is error to decree against defendants who have not appeared and answered without taking the Bill pro confesso ; 3 Jiibb, 525. The implied admission of one defendant, on taking the Bill pro confesso, cannot be made the ground of a decree against another defendant ; 1 Marsh. 569. Where the Bill is against residents and non-residents, and the residents answer, denying all equity, there can be no decree against the non-residents pro confesso; 1 Litt. 52. So if the plain- tiff's claim is put in issue by the answer of one defendant, a decree CHANCERY. 769 Orders and Decrees. cannot be taken against another — the rule is the same as at Law ; 2 Bibb, 350. A Bill need not be taken as confessed against defend- ants from whom no relief is sought; 2 Marsh. 150. See 1 J. J. Marsh. 547. In taking a Bill pi'o confesso, every specific charge is considered as admitted ; 8 Dana, 284 ; 1 Tenn. 18 ; 1 Litt. 98 ; 3 Gill 4- Johns. 413 ; 2 Blackf. 281, 285 ; 5 do. 48. Effect of a decress pro confesso; 12 Eng. Ch. Rep. Conds. 5; 1 Hopk. 471. In allowing a decree pro confesso, the Court hears the pleadings, &c.; 8 Ves. 192. See, 7 Simmons, 143. And must be satisfied of the justice of the plaintiff's claim; 4 Porter, 245; 9 do. 80. A decree pro confesso does not preclude the defendant from disputing the amount of the plaintiff 's claim before the Master ; 1 C. &f. D. 64 ; 4 Wash. C. C. 391. If the Bill omits to state the plaintiff's claim specifically, he cannot have a final decree, even after a decree p7'o confesso, without proving his case; 2 Blackf. 281 ; 3 do. 237 ; 1 Hopk. 471 ; 1 Litt. 58. A Bill for the balance of an account, taken pi'o confesso, must be referred to a Master ; 4 Wash. C. C. 391. Af- ter a Bill is taken pro confesso, the plaintiff must file his documents and prove his case ; 4 Hen. &f Munf. 476. And the plaintiff 's right in such case may be proved before the Master ; 2 Paige, 27. The Court may require proof, or may examine the complainant under oath, and cause the examination to be reduced to writing and filed with the papers in the case ; Swan's St. 705, § 15, If the defend- ant in an original Bill has not answered, the defendants in a Bill of revivor must answer, or a Decree pro confesso be taken against them before final Decree ; 3 Ohio, 355. In the Circuit Courts of the United States, when the Bill is taken pro confesso, the Court may proceed to a Decree at the next Term, and such Decree is absolute, unless, during the same Term, the Decree be set aside on cause shown ; No. 19, Equity Rules, Supreme Court United States 1842. IV. Nature and Effect of Decrees. A Decree is equal to a judgment at Law ; 3 Swanston, 576. It has the same force, operation and effect as a judgment ; Swan's St. 708, ^ 34 ; 1 Ohio, 509 ; 3 Desaus. 206 ; 4 Johns. Ch. 636. See, 4 Wash. C. C. 657, and Cases there collected. One defendant may have a Decree over against a co-defendant, if the pleadings and proof allow it, in order to prevent circuity ; 1 Paige, 263. It is the constant course ; 2 Sch. &f Le Froy, 709 ; 3 J. J. Marsh. 679 ; 4 do. 37 ; 1 Bland, 275. Where a Bill is filed to quiet the possession, the defendant, by a Cross Bill, may show the original complainant's title fraudulent, and so obtain a Decree quieting his own title ; 8 Ohio, 382. 97 770 CHANCERY. Orders and Decrees. A Decree by consent for a lease, or other personal estate, shall bind the purchaser, " or otherwise, tlie Lord Keeper said, you will blow up the Court of Chancery;" 7 Vin. Abg. 394. It is a rule that, when- ever a Decree is entered by consent, the merits after shall never be inquired into, unless there be an objection that the word consent be struck out of the Order ; 2 Eq. Ca. Abg. 279 ; 1 Br. Ch. Rep. 422, 426 ; 4 Bibb, 415 ; 8 Dana, 12. Sometimes a Decree is stated to be by consent generally ; sometimes by consent of counsel ; and sometimes by consent of parties ; Seaton's Forms, 259. [See, Post, V ; How a Decree may be opened, Sfc] Where matters of account are set up in the Bill and Answer, it is error to make a Decree Vv'ithout taking an account ; 3 Ohio, 355. Where the Bill charges that the defendant holds the legal title of certain lands for his own and the complainant's benefit, and calls for an account of sales made by the defendant, if a balance be found due to the complainant, it is error to set off to him, in severalty, a part of the unsold lands, in payment ; Id. A Decree for a deed op- erates as a conveyance, subject, as between the parties, to a re-vest- ing of the title by a reversal of the Decree : bui such reversal does not affect the title of a purchaser acquired bona fide while the De- cree was in force ; 3 Ohio, 337. An appeal from a Decree is nothing else than a proceeding in the original cause : It is continuing the case and suspending or vacating the Decree till the final hearing in the appellate Court ; 3 Ohio, 541. Where a Decree rescinds a contract of sale and orders the purchase money to be repaid, it is a fatal error if the Decree omits to restore the possession to the Ven- dor ; 4 Ohio, 229. A Decree for a deed may be enforced by at- tachment, notwithstanding the Statute which makes such a Decree operates as a conveyance ; 4 Ohio, 424. A Decree for title need not not be recorded in the Registry of Deeds; 5 Ohio, 461. A final Decree on the merits binds all parties ; 5 Ohio, 450 ; 6 do. 528 ; 8 do. 214 ; 7 Johns. Ch. 286. Where an injunction to stay execu- tion is dissolved and the case continued, and before its final dismissal, payments are made, the final Decree is to be for the balance then due with the statutory penalty on that balance ; 8 Ohio, 60. A Decree of dismissal, on a Bill to foreclose, is no bar to a subsequent suit on the note ; 10 Ohio, 300. Where one Haines sold lands to Brown, and Brown afterwards sold to Barr and Fisher, and afterwards the original vendor sold a part of the same lands to Case, and then Brown, the first vendee, filed a Bill for a specific performance, and thereupon the Court of Common Pleas decreed Case to convey to Brown, and Dismissed the Bill as to Bar and Eisher, and continued the case as to Haines. This is such a final Decree as Haines and Case may well appeal from ; 12 Ohio, 1. But if such Decree was not a final one, yet if on appeal from it, the Supreme Court dismiss the Bill, it is too late to object to the appeal on Bill of Review ; lb. It seems that where CHANCERY. 771 Orders and Decrees. an injunction stays a judgment creditor from enforcing an execution against certain sjDccific property claimed by a third person, but does not interfere with any other property or with the person of the debt- or, who is not made a party to the Bill, the Court, on dissolving the injunction and dismissing the Bill, will not decree against the com- plainant the amount of the judgment and penalty; 12 Ohio, 114. A Decree resting on facts once found by the Court will not lightly be disturbed on Bill of Review; 12 do. 315. A Decree against unknown heirs is valid under the Statute; 10 Ohio, 275. A prior Decree to be available, must be plead or set up in the Answer; 13 Ohio, 430. See, 5 do. 459; 6 do. 528; 8 do. 214. In 2 P. Wms. 120, it is said that in all Decrees against Infants, a day must be given them to show cause. This rule rests on the an- alogous doctrine at Common Law, that in suits against infants the parol shall demur: See 1 Jac. ^ Walk. 583, and 2 do. 289, where the Cases are all collected. Lord Hardwicke held it to be the course of the Court not to give a day, unless a conveyance was directed either in form or substance ; 1 West, 684 ; Seaton's Forms, 188 ; 2 Dick. 443. By the Stat. 1 JVUl. IV., c. 47, the rule for the parol demurring has been abolished. The same was done in Ohio in 1810; 1 Chase St. 709: See 1 Dan. Ch. Pr. 207 ; Macpherson' s Infants, 460, 411 ; 2 Kent, 245. In Decrees of fore- closure against infants, it is the old and settled practice, to give the infant a day, usually six months, when he comes of age, to show cause against the decree, and make a better defence, and he is en- titled to be called in for that purpose by process of subpoena ; 2 Kent, 245; 3 Johns. Ch. 367; 5 Leigh, 119; 1 Hoff. Ch. Rep. 178. In New York, it is the practice to sell, not to foreclose, as well when infants as adults are concerned, and the decree is understood to be binding upon the infants; Id. See also 2 Dana, 210; 1 Rand. 396 ; 8 do. 594 ; 6 Gill ^ Johns. 1 1 1 ; 2 Keen, 245. A Decree of foreclosure is binding, and a purchaser is only liable to be overhaled in the account ; 3 Ves. 316. The infant, when he comes of age, is not to ravel into the account, nor is he so much as entitled to redeem the mortgage by paying what is reported due, but is only entitled to show an error in the Decree — this was admitted by the counsel on both sides, and also by the Court, to be the settled prac- tice ; 3 P. Wms. 352 ; in notis. Fonhl. Eq. 269. Decrees against infants. General Doctrines ; 4 Black/. 282 ; and cases there collected : See also, 4 /. /. Marsh. 69 ; 4 Monroe, 416 ; 5 L,itt. 80 ; 1 Hoff. Ch. Rep. 178. When a Decree against infants is reversed, and the land has been sold, what is to be done; See 9 Dana, 532. If lands are devised to be sold for payment of debts, the lands may be decreed to be sold without giving the heir, who is an infant, a day to show cause, for nothing descends to him ; 1 Eq. Ca. Abg. 280. See 4 Bibb, 11; 2 J. J. Marsh. 487. In Kentuc- 773 CHANCERY. Orders and Decrees. ky, and some otlier States, the Court are allowed, by Statute, to ap- point Commissioners to convey real estate of infants; 7 Monroe, 107. For the Form of such deed, See 7 J. J. Marsh. 271. Infants may be decreed to convey in person ; 2 Mcnsh. 394. See 7 J. J. Marsh. 370. But not with warranty ; 3 Ohio Rep. 355. Whether the Master, or Commissioner, &c., can be decreed to make the convey- ance ; 6 Johns. Ch. 436. It is error to decree against infants be- fore appointment of guardian, nor can any answer be put in for in- fants before such appointment ; 3 Marsh. 143. See 4 J. J. Marsh. 69 ; 5 do. 49 ; 3 Ohio Rep. 355 ; 3 Bibb, 525 ; 8 Ohio Rep. 377; 4 Paige, 115. If a guardian ad litem answer, it is proof that he had notice of the appointment and accepts ; 3 Marsh. 283. The fact that a guardian ad litem was appointed must appear on the re- cord ; 5 J. J. Marsh. 49. A Decree against infants is valid till re- versed, though they had no'guardian ; 3 Marsh. 254 ; 5 31onroe, 452. So against a Feme covert ; 9 Ohio Rep. 117. The appointment of a guardian ad litem for infant non-resident heirs, without any order for publication, or other service of process, does not make them parties, nor are they bound by the decree ; 2 J. J. Marsh. 487. As to resident infants, See 1 Litt. 417; 4 31on- roe, 544 ; 3 Dana, 425 ; 4 do. 440. Infant complainants in gen- eral are bound as adults, and no time need be given them ; 4 Mon- roe, 255, 544, 416 ; 3 Mad. 495 ; Lord Red. 21 ; 4 M. ^ C. 216. In 2 P. Wms. 387, the Master of the Rolls would not bind an in- fant by an offer made by liis Bill through the mistake of his agents ; See 2 Atk.bM; 3 do. 627. An infant defendant coming of age, or female marrying, makes no diflference but in form, and the cause may, notwithstanding, go on to a hearing; 12 Eng. Ch. Rep. Conds. 4. And if a plaintiff sues as sole and afterwards marries, and then a decree is made, it is not er- roneous ; 7 Vin. Abg. 396. A Decree cannot be pleaded in bar unless it binds both parties ; 2 Eq. Ca. Abg. 280. A new bill is filed before the old one is dismissed and costs paid, the old suit may be plead in bar ; 8 Paige, 245. After final Decree, keeping the Case on the Docket, and entering continuances, give the Court no power over it ; 5 Monroe, 242. When a plaintiff dies after appeal, and the cause is heard afterwards, the death not being known, a de- cree may be taken nunc pro tunc as of a day previous to the death ; 5 Paige, 528 ; 6 do. 478. So if a plaintiff dies after a cause is sub- mitted to the Court; 1 Blachf. 155; 4 Johns. Ch. 334, 342; 4 Wheat. 714. The plaintiff cannot have a Decree against a defendant whom he has examined as a witness ; 4 Paige, 127. One by purchasing at a sale under a decree submits himself to the jurisdiction of the Court; 2 Paige, 339. Such purchaser, it seems, is not affected by an er- CHANCERY. 773 Orders and Decrees. ror in the Decree, yet he must look to see that the proper parties are before the Court ; 8 Ohio Rep. 377. A Decree in Virginia may be carried into effect in Kentucky ; 9 Pet. 98. A Decree from a sister State is to be authenticated under the laws of the United States ; 2 Marsh. 293. A Decree in anoth- er State cannot pass a valid title to lands in Ohio ; 2 Ohio Rep. 124 ; 9 do. 49 ; 13 do. 368 ; 6 Fet. 400 ; 9 do. 98. The want of a Replication is not per se a cause for reversing a Decree ; 1 Bibb, 211 ; 2 Black/. 115. The Court cannot decree on a case made in the Replication ; 7 Pet. 274. Some may submit to a decree and others appeal from it ; 6 Wheat. 550. When there are several par- ties the case may be heard at different times ; 2 Bibb, 441. When there are several defendants there can be no Decree as to one until all are before the Court. What may done when one only is ready ; 2 Marsh. 351, 577; 4 Dana, 127. See 5 Wheat. 313, 424. After a final Decree at one term, there cannot be another decree at a sub- sequent term ; 2 Marsh. 241 ; 5 Monroe, 242. A Decree by Publication against an absent defendant is no evidence of the truth of the Bill in a collateral contest; 1 Marsh. 511. To make a Decree binding there must be service of process, actual or constructive, or appearance; 3 Marsh. AZ; 1 J. J. Marsh. 166; 6 do. 197; 3 Monroe, 267 ; 1 Dana, 462. A sale under a Decree otherwise obtained, passes nothing ; 4 Monroe, 544 ; 6 do. 205. A Decree has no effect against persons not parties or privies ; 5 Litt. 304 ; 2 Black/. 230 ; 1 Paige, 35. It is error to decree in person- am against an absent defendant; 3 J. J. Marsh. 671. A written acknowledgment of subpoena without proof of its gen- uineness, is not sufficient to authorize a Decree ; 3 J. J. Marsh. 60 ; 4 do. 241 ; 5 do. 567. A Decree for a sale ought to fix some day in term for payment, and in default, then a sale ; 6 Monroe, 129. But the want of such a day after sale and conveyance will not reverse a Decree; 6 J. J. Marsh. 511. It is error to open a decree against absent defendants on answer of a part of them ; 1 J. J. Marsh. 122. A Decree dismissing a Bill not having necessary parties, is a bar to another with proper parties, on the same Equity; 3 Monroe, S61. See 7 Johns. Ch. 1, 5. When a Bill is dismissed on the merits, and the defendant files a new Bill, this opens the old Decree ; 7 Johns. Ch. 1. How possession is given to a purchaser under a Decree ; 5 Monroe, 75 ; 2 Eng. Ch. Rep. Conds. 476, 485; 4 Johns. Ch. 609; 1 Hopfe. 231, 422: See Forms of Decrees, Pos^. A Decree ob- tained at the suit of creditors for an account of a testator's personal estate, is binding on other creditors, and if they sue, an injunction will be awarded : 3 Desaus. 207. A Decree against unknown heirs is erroneous without the affidavit required by Statute ; 7 Monroe, 657. And each complainant must make affidavit ; 7 Dana, 89 ; 9 do. 236. If the record states that the Court was satisfied by proof 774 CHANCERY. Orders and Decrees. that an order against a non-resident had been legally published, the Decree cannot be held void, though if the proof of the publication be not in the record, the Decree may be erroneous ; 8 Dana, 75. A defective Bill may be aided by an answer so as to warrant a Decree for relief; 5 Dana, 338. A Decree for money can be enforced by sequestration, &c., as in a creditor's Bill, &c. ; 1 Ed. Ch. Rep. 336. What sequestrators can do; 2 Eq. Ca. Abg. 712, V. How Opened, Impeached, or Set Aside. An infant may controvert a Decree before it is made absolute, by original Bill, or by putting in a new Answer ; Mos. 203, 308. In case of an erroneous Decree against an infant, 3Ir. Vernon used al- ways to advise the bringing of an original Bill to set it aside, but in such Bill to allege specially the errors in the former Decree ; 1 P. JVms. 737 ; 9 t^in. Abg. 414. When a Decree binds infants, and when not, See, 9 Vin. Abg. 389, 392 ; 1 Eq. Ca. Abg. 280 ; I Harr. Ch. Pr. 240. When a Decree may be impeached by an in- fant, See, 9 Vin. Abg. 413,414; 4 Bibb, 96. When a former Decree may be set up; 7 Vin. Abg. 396, 397; 16 do. 368; 10 Wheat, 192. An Interlocutory Decree is always under the control of the Court ; and it is not error to set it aside and permit an Answer to be filed; 1 /. J. Marsh. 497 ; 1 Bland. 120; 3 Munf. 29 ; 2 Edw. 131 ; 2 Cranch,SS; 13 Ohio, 408. A Stranger that is bound by a Decree gotten by fraud may falsify it; 7 Vin. Abg. 401. By original Bill; 1 Bland, 120. And he may show matter contradictory to the record ; 3 Monroe, 302. A Decree may be impeached for fraud ; 6 J. J Marsh. 485. But the fraud must be specifically set out ; 9 Ohio, 178. Except in case of infants, where it is enough to say the the Decree was obtained by fraud and collusion ; 1 P. JVms. 737 ; Hinde's Pr. 439. But See, Ld. Red. 74. A Decree is void where there is no service of process, actual or constructive, or appearance ; 1 Dana, 462 ; 4 Monroe, 744 ; 6 do. 205. A Decree cannot be re- viewed on Scire Facias ; 14 Ohio, 185. A Decree or Order by consent of the counsel for the parties can- not be set aside either by re-hearing or appeal ; Ambl. 229 ; 2 Ves. 488; BeWs Supp. 413; 7 Br. P. C. 244; 7 Vin. Abg. 13, 298. Nor will a Bill of Review lie in such case ; 3 Swanston, 658 ; 1 Vern. 274. But if the Decree was obtained by fraud, relief may be had by original Bill ; Ambl. 229 ; 2 Ves. 488. And if the party did not in fact consent, iiis remedy is against his counsel ; Id. Coun- sel must determine for themselves on their authority to consent ; I J.%f W. 673. In the case of infants, the Court does not usually make a Decree by consent, without a previous inquiry whether it will be for their benefit ; 1 Bra. 488 ; Seaton's Forms, 260. But if made CHANCERY. 7T5 Orders and Decrees. without that inquiry, the infants are bound ; S. C. And See, Freem. 127. But guardians cannot give a binding consent. 2 Rand. 409. A Decree may be made in vacation under an Order by consent for that purpose; 1 Ala. 35, Where the consent is by the parties, an affidavit of their signatures is necessary — otherwise if the consent be by counsel ; Halst. Dig. 175. A Decree by consent is binding un- less obtained by fraud ; 6 Johns. Ch. 564. One in possession claiming title derived with warranty from an Entry and Survey not patented, has an estate that may be sold on execution, and a patent issued after such sale to the heirs of the orig- inal owner of the Entry enures to the benefit of the purchaser under the execution ; and a Decree in Chancery against such patentees awarding the legal title to one who purchased from the judgment debtor after the sale on execution, is of no validity; 10 Ohio, 69. A Decree against non-resident defendants may be opened at any time within five years, by giving notice, filing a full answer to the original Bill, paying all costs, and making affidavit of the want of actual notice of the pendency of the Bill ; Swan's St. 715, >§> 57. But such proceedings are not to affect a bona fide purchaser under the Decree ; Id. In New York, the party may come in, any time before a sale, and make defence, on payment of such costs as the Court think reasonable; 8 Paige, 41, 506. And if the party has a fixed and notorious domicil within the Slate, he will be let in to de- lend of course, and without costs, before a sale ; Id. In order to obtain a Decree against a non-resident defendant, who does not ap- pear, and who has not been personally served with process, the report of a Master as to the truth of the allegations in the Bill is necessary ; 6 Paige, 178. And this is to be done, though there may be other defendants who contest the plaintiff''s claim ; Id. See, 4 Johns. Ch. 199. During the Term, Decrees or Orders may be altered or re- scinded, on motion or petition ; but afterwards only by Bill ; 1 Bland, 120. A Decree, though passed and entered, may be corrected before enrollment, on motion in a clear case ; 4 Johns. Ch. 546. A clear mistake in a Decree in minutes following the pleadings, which were defective, when of such a nature that the point of sale or no sale of the defendant's estate turns upon it ; as where a Bill of Revivor was, by a slip, at the suit of four of the co-plaintiff^s, instead of the five co-plaintiffs, cannot be corrected on motion without consent ; 1 Moll. 257. Leave to amend a Decree refused after eighteen months' delay; 1 Paige, 188. An omission in a Decree of any matter which would have been inserted as a thing of course, may be supplied on motion, but nothing more ; And if any important error has occurred, a re-hearing is the proper remedy ; 2Ediv 131. See, 2 Wend. 221 ; 1 Russ. 475; 2 Youiig fy Jer. 241 ; 1 Hogan, 91 ; 13 Price, 500, 766 ; 2 Sim. ^ Stu. 64 ; 2 A. K. Marsh. 11 ; 1 Munf. 339 ; 3 Johns. Ch.4\5; 2 do. 205. The Circuit Courts of the United Stales have no power to set aside their Decrees, on motion, after the 776 CHANCERY. Ordera and Decrees. expiration of the Term in which they were rendered ; 3 Wheat. 591- A regular Decree on the merits cannot be set aside on motion : and it seems, that where it is sought to set aside a Decree on the ground of surprise or irregularity, the remedy is by Petition ; 1 Johns. Ch. 200. By the 85th Rule of the Supreme Court of the United States, 1842, it is provided that, "clerical mistakes in Decrees, or Decretal Orders, may, at any time before an actual enrollment thereof, be cor- rected by order of the Court or a Judge thereof, upon petition, with- out the form or expense of a re-hearing." Formal Parts of Orders and Decrees. No. 1. Final Decree on Hearing.'^ A — B — , et al. ^ V. > In Chancery. C— D— , et al. ) This day came the Parties, by their Solicitors, and thereupon this cause came on to be heard upon the Original and Amended Bills, the Answers of B. and E. to the Original Bill, and the Replication there- to, and the Answer of B. to the Amended Bill and Replication there- to, together with the Exhibits and Testimony, and was argued by Counsel ; on consideration whereof the Court do find. That the Equity of the case is with the complainants, [or, That the contract in said Original Bill named and bearing date Apjil tenth, 1844, was duly executed by the said C. D., and ought to be specifically performed : And that, ^'c] It is therefore Ordered, Adjudged AND Decreed, That, &,c. (a) For general Rules regulating hearing the Will of P. D., dated the Orders and Decrees, See Ante 766. 12th day of June, 1710, and the de- The Form in England runs as fol- fendant's Answer, and the proofs ta- lows : — ken in this cause read, and of what " This cause coming" on the 4th was alleged by the Counsel on both instant, as also on this present day, sides, his Lordship doth think fit, to be heard and debated before the and so doth Order and Decree, Right Honorable the Lord High That, &c." Chancellor, in the presence of Coun- The Form in the Courts of the sel learned on both sides, the sub- United States is as follows : — stance of the plaintiff's Bill appeared " This cause came on to be heard to be, That, &.c. Therefore, that \^or to be furl her heard, as the case the defendants, or one of them, may, may be,^ at this Term, and was ar- &c., and to be relieved, is the scope gued by Counsel ; and thereupon, of the plaintiff's Bill — Whereto the upon consideration thereof, It is Or- Counsel for the defendants alleged dered, Adjudged and Decreed as that by their Answer &c.; Whereup- follows, namely." Hide 86fh Su- on, and upon debate of the matter, and preme Court United States, 1842. CHANCERY. 777 Orders and Decrees. No. 2. The like, By Default, after Answer. This day came the Plaintiff by his Solicitor, none appearing for the Defendant, and this cause thereupon came on to be heard upon the Bill, the Answer of C. D.* and Replication thereto, together with the exhibits and testimony; on consideration whereof the Court do find, &.C. [as in the last Precedent.] No. 3. The like, on Bill taken 'pro confesso against one of several Defendants. This day came the plaintiffs by their Solicitors, and all the defen- dants by their Solicitors, except the defendant H. H., and the said H.H. still failing to plead, answer or demur to the said complainant's Bill, It is therfore Ordered, Adjudged and Decreed that the same be taken pro confesso against the said H. H. ; and thereupon this cause came on to be heard upon the Bill, the Answer of all the defendants except the defendant H. H., and Replication thereto, to- gether with the Exhibits, and Testimony, and upon the Bill taken as confessed against the said defendant H. H., and was argued by counsel, on consideration whereof, the Court do find, &c., \as in No. 1, Ante. 776.] No. 4. The like, against one Defendant Pro confesso. This day, came the plaintiff, none appearing for the defendant, and the said defendant still failing to plead, answer or demur to the said complainant's Bill, It is therefore Ordered, Adjudge.d and Decreed that the same be taken pro confesso ; and thereupon this cause came on to be heard upon the Bill so taken as confessed, and was argued by M. O. of counsel for the complainant, on considera- tion whereof the Court do find, &c., [as in No. 1, Ante. 776.] Orders and Decrees. No. 1. Decree for Account and Reference to Master. This day came the parties, &c., [See Ante. 776.] — It is there- fore Ordered, Adjudged and Decreed that this case be referred to M. H. one of the Masters of this Court, to take a mutual Account (a) In England, the Answer is Beames, 198 ; 10 Ves. 30 ; 3 Atk. required to be entered as read ; 35 ; I Dick. 88 : See Ante. 742. 98 778 CHANCERY. Orders and Decrees. of all dealings and transactions" between the plaintiff and defendant; for the better clearing of which Account, and discovery of the mat- ters aforesaid, the parties are to produce before the said Master, upon oath, all deeds, books, papers and writings in their custody or power relating thereto,'' and are to be examined upon interrogatories as the said Master shall direct, '■ who, in taking of the said Account, is to make unto the parties all just allowances,'' *and what, upon the balance of the said Account shall appear to be due from either party to the other, is to be paid as the said Master shall direct. And It is FURTHER Ordered, Adjudged and Decreed, that the Injunction formerly granted in this cause, for stay of the defendant's proceedings at law, be in the mean time continued, and the defendant's judgment is to stand a security for payment of what, if any thing, shall appear to be coming to him on the balance of the said Account ; and the consideration of the costs" of this suit, and of all further directions (a) Decrees for Account do not contain future words ; yet the defen- dant must account for sums received by him subsequently to the Decree ; 3 .^itk. 582; Seaton's Forms, 42. And the Account may be carried on as long as the suit is pending ; Id. (b) The discretion of the Master extends to the production of books, &c., as well as to the examination of the parties ; 5 Mad, Rep. 121. And he may direct that the books, &c., shall be left in his office ; 6 Mad. Rep. 340 ; 1 Sim. 388. The defendant may be directed to bring books, &c., before the Master to be examined on oath; 2 Johns. Ch. 513. When in a Bill for Account no items are specified, the Court will refer the case to the Master, and the defen- dant may go into evidence, and may be sworn before him ; 3 Paige, IGO. (c) See 2 Ves. 270; 1 Dich. 149 ; 2 Cox. 108. The Interrogatories are to be settled by a Master ; 17 l^es. 434. (d) A widow in accounting for rents and profits may be allowed her arrears of Dower ; 1 Ves. 2(32. Trus- tees are allowed their charges and expenses ; 10 Ves. 184. And the expenses of a sale ; 18 Ves. 285. The Court will not in the first instance determine Avhat is a just allowance ; 1 Jac. 294. The Master is not at liberty, under this Direction, to enter into a substantive claim, (as for a Commission) made by the answer, and not sustained by the Decree ; 4 Mad. Rep. 38. The Master may be directed, by the original decree, to state his reasons for allowing or dis- allowing allowances claimed ; 1 Jac. 299, 623. (e) It is the constant cause of the Court when a mutual account is de- creed, to reserve the costs till after the Report, that the Court may have it in their power to punish the wrong- doer ; Vin. Mg. Costs, B ; 2 Eq. Ca. Mg. 237. Miscellaneous Directions. 1. J Jllful Default. Ordinarily, in Decrees for Account, the Court does not charge the accounting party with what he might have received with- out his wilful default; 2 /. S,- W. 556. Otherwise in the case of mort- gages, or under special circumstan- ces ; Seaton's Forms, 34. CHANCERY. 779 Orders and Decrees. are reserved, until after the said Master shall have made his report, when either party is to be at liberty to apply to the Court as occasion shall require. If the Reference to the Master be for inquiry, &c., where no Ac- count is to be stated, the Form is as follows : It is ordered, &,c., that this cause be referred to M. H. one of the Masters of this Court to inquire and state to the Court, &c. And for the better discovery of the matters aforesaid, the parties are to produce, &c. No. 2. The like, with Special Directions. Proceed as in No. 1, Ante, 111, to the * and then say : And in taking the said accounts against the defendant, J. S., the said Master is to charge the defendant, J. S., with the sum of — , borrowed by him, &c., with interest, &c.. Or, In taking of which acccounts, the said Master is to have regard to the said agreement of the 10th day of March, 1840, relating to the personal estate of J. S., which is hereby established, and to be taken as such in the said accounts ; I Atk. 469. Or, And if, in taking the said accounts, the said Master shall find any account stated, he is not to ravel into the same ; 2 Ves. 571 ; 3 Atk. 809. [Or as the case may be]^. 2. Special Circumstances. In ta- king an account if there be any special matter, the Master may state it spe- cially, though not so directed by the Decree ; 2 Jitk. 620. 3. Rests. Ordinarily in taking an account of the rents and profits of real estate, the Court directs annual rests ; but not in taking an account of personal estate ; 2 Jitk. 410. See 11 Ves. 110; 1 Cox, 138; 1 Mad. Ch. Rep. 293 ; 11 Ves. 97, 103 ; 4 Doio. 209 ; 1 Jac. 4- Walk. 586 ; 1 Russ. 111. 4. Special Directions. The Court do not in the first instance, make any declaration which would have the effect of taking the account in part; 1 Russ. 89. Nor will it permit evi- dence to be read, or entered as read, as to such items ; 1 Russ. 110, 102. But the Court frequently direct an account to be taken with the admis- sion of documents or testimony not strictly evidence ; 15 Ves. 4'i'S. 5. Further Directions. After a Decree for an Account, the Bill can- not be dismissed, except on a re-hear- ing or appeal; 11 Fes. 602. Where it appears, by the Masters report, that the balance is due from the plaintiff, he will be decreed to pay it, although there is no offer in the BiU, or direc- tion in the original decree for that purpose ; 1 B. ^' B. HIQ; 2 Vern. 297. (a) When a stated account is in- sisted upon by the Answer, the above directions is frequently inserted in the Decree ; Seaton^s Forms, S6; 1 West. 171 ; 1 .^tk. 1 ; 3 Swanston, 627. But in such case liberty will be given to surcharge and falsify; 14 Ves. 579 ; 4 Mad. Ch. Rep. 209. 780 CHANCERY. Ordera and Decrees. No 3. The like, with leave to Surcharge and Falsify. Commence as in No. 1. Ante. 776, It is therefore Ordered, Adjudged and Decreed, That the accounts stated the 24th day of May, 1844, between the plaintiff and the defendant do stand, with liberty to either side to falsify or surcharge the same.* And it is hereby referred to M. H., one of the Masters of this Court, to take a general account of all dealings and transactions between the said plaintiff and defendant, from the foot of the said account ; and that the said Master do likewise take an account of what is due for prin- cipal and interest on the bond in question, and that the same be brought into the general account; and if, in taking the said account between the parties, the Master shall find the said defendant debtor to the plaintiff on the said general account, at any particular period of time, and after that time the plaintiff does not become debtor to the defendant in the said general account, then from such period of time, that the said Master do apply what shall be coming due from the defendant to the plaintiff, first, to pay the interest on the said bond, and then to sink the principal. And it is further Ordered, &c., that what shall be due &,c. [As in No. 1, Ante. 111. No. 4. The like, Setting Aside Stated Accounts. Commence as in No. 1, Ante. 776, It is further Ordered, Ad- judged AND Decreed, That the three stated accounts, dated, &c., be opened and set aside : And it is hereby referred to M. H., one of the Masters, &.C., to take a general account of all dealings and trans- actions between the plaintiffs, or either of them, and the defendant; and for the better taking the said account, &c. [Conclude as in No. 1, Ante.lll. No. .5. Decree in Creditor's Suit. Commence as in No. 1, Ante. 776, It is therefore Ordered, Adjudged and Decreed, That it be referred to M. H., one of the Masters of this Court, to take an account of what is due to tiie plain- (a) Where the parties are at lib- parties can show an omission for erty to surcharge and falsify, they which credit ought to be given, that are not merely confined to errors in is a surcharge ; or if any thing is in- fact, but may take advantage like- sorted that is a wrong charge, he is wise of errors in law; 2 ^(k. 112. at liberty to show it, and thatisafal- The onus prohandi is on the party sification ; but that must be by proof having that liberty. If any of the on his side ; 2 Ves. 565. CHANCERY. 781 Orders and Decrees. tiffs, and all the other creditors of J. R., deceased,* the intestate in the pleadings named, and his funeral expenses, and to compute in- terest on such of the debts as carry interest, and the said Master is to cause an advertisement to be published in the — , and such other public papers as he shall think fit, for the creditors of the said intestate to come in before him and prove their debts,'' and he is to fix a per- emptory day for that purpose, and in default of their coming in to prove their debts by the time so to be appointed, they are all to be excluded the benefit of this Decree, but the persons so coming in to prove their debts, and not parties to the suit, are, before they are to be admitted creditors, to contribute to the plaintiffs their portion of the expense of this suit, to be settled by the Master. And It is further Ordered, Adjudged and Decreed, That the said Master do take an account of the personal estate of the said in- testate come to the hands of the said defendant, his administrator, or to the hands of any other person by his order, or for his use. And for the better taking of the said accounts, &c. [Conclude as in No, 1, Ante. 111. (a) Where a single creditor brings a Bill, not on behalf of himself and others, no general account is to be taken, but the course is to direct an account of the estate, and of that particular debt, which is ordered to be' paid in a course of administration; 2 Cox, 45 ; Seaton's Decrees, 39. (b) In addition to the ordinary ev- idence of the debt, the Master re- quires an affidavit from the party that it remains due; 11 Ves. 33; 19 do. 199. Where the debt is con- tested, no attention is to be given to the affidavit; 19 Ves. 199. The plaintiff in a creditor's suit, must prove his debt before the Master ; 1 Dick. 259. Although the time has elapsed, yet the Court will let in creditors at any time while the fund is in Court ; 11 Ves. 602; 1 Mad. Ch. Rep. 529. A creditor not having come in till af- ter payment to some legatees, and appiopriation of the fund to others, was held entitled to part only of the appropriated fund, in the proportion of the whole amount of his debt to the whole amount of the legacies ; 3 Russ.ViO. If creditors do not come in, and are excluded from the benefit of the Decree, that does not prevent another Bill, having due regard to costs; 19 Fes. 339,336. After dis- tribution under a Decree, with the usual advertisements, a Bill by a par- ty entitled, but who had no notice of the proceedings, was dismissed; 2 B. (^ B. 337. An inquiry as to debts under an interlocutory Order, does not preclude any creditor; 1 Fuss. 97. Creditors who do not come in under the Decree, will nevertheless be bound by acts done under its au- thority ; Lord Bed. 135. But it seems that they will only be bound as to the demands admitted by the Decree, not as to the account of the personal estate taken under it ; /(/, 139. 782 CHANCERY. Orders and Decrees. No. 6. The like, in another Form. [A Partition of the Real Estate had been made among the Heirs, ivho had sold out pai'ts of their shares ; and the Estate was then found to be Insolvent.] This day came the parties, by their solicitors, and thereupon this cause came on to be further heard upon the exceptions of the de- fendant, C. D., to the Master's report, and was argued by Counsel, on consideration whereof, the Court disallow the exceptions of the said defendant to the charge of — dollars, paid to S, S., of, &c., and also disallow his exception to — dollars, his expenses to the City of C, &-C., but the Court allow his exception to the Master's rejection of the sum of — dollars, professional services ; and thereupon the Court find a balance now due from the said defendant to the said C's. estate of — dollars: It is therefore Ordered, Adjudged and De- creed, that the Report of the Master be in all things affirmed, ex- cept so far as the same is modified by this Decree ; and that the said C. D., within sixty days, pay to the Master the said sum of — with interest thereon from the 10th day of April, A. D. 1840, the time when the said C D. ought to have settled the estate of the said C. ; and also the costs of this suit ; and in default of such payment, that execution issue therefor as upon judgments at Law. And It is further Ordered, Adjudged and Decreed, that the said C. D. be enjoined from collecting or receiving, in any way, any of the assetts of the estate of the said C, and that within thirty days he deliver over into the hands of the Master, all Books, Papers, Vouchers, and other documents, in his custody or power, belonging or in any wise appertaining to the estate of the said C; and that the Master proceed to collect all assetts whatsoever of the estate of the said C, includingmoneys that may be due for lands sold by the said C D. as administrator, under the order of the Court of Common Pleas of — County : And the Master shall also proceed to take an account of what is due to the plaintiffs, and all other creditors of the estate of the said C. D.,"* and shall ascertain, as near as may be, what amount it will be necessary to raise, by the sale of real estate, to discharge the same ; and shall divide the amount so ascertained into three equal parts, being the number of shares into which the real estate of the said C. has been divided, in the proceeding for partition in the jjlead- ings mentioned ; each of which shares is to be liable for one third of said debts : And the said Master shall then proceed to sell, first, the unaliened lands of each share ; and then, the lands of each share (a) For Special Directions, See ^nte. 779, No. 2. CHANCERY. 793 Orders and Decrees. last aliened, and so on, in the inverse order of sale, until each share shall have paid its due proportion of said debts ; the said lands to be appraised by proper men, to be appointed by the said Court of Com- mon Pleas. And It is further Ordered, Adjudged and Decreed, that the Master proceed to settle up the estate of the said C, according to the form of the Statute regulating the duties of executors and ad- ministrators, under the direction of the said Court of Common Pleas, to which Court the parties are to be at liberty to apply as occasion shall require. It is Ordered, that this cause be remanded to the Court of Com- mon Pleas of — County, with a special mandate to carry this Decree into execution, and also their own Decree against the parties who did not appeal therefrom. No. 7. The like, setting aside a Fraudulent Conveyance, fyc. Commence as in No. 1, Ante. 776. And thereupon the Court do find that the deed in the pleadings mentioned from J. B. to T. W., bearing date April 27th, 1829, for Lot, &.c., is fraudulent and void as to the creditors of the said J. B., and that a sale of said lots is ne- cessary to pay the debts of the estate of the said J. B. It is there- fore Ordered, Adjudged and Decreed, that said deed be altogether annulled and held for nothing, and that the defendant, S. C, admin- istrator of the said J. B., proceed to sell said lot, as part and parcel of the said J. B's. estate ; and thereupon to settle up the estate of the said J, B., pursuant to the Statute regulating the duties of exec- utors and administrators, under the direction of the said Court of Common Pleas. It is Ordered, that this cause be remanded to the Court of Com- mon Pleas, wMth a special mandate to carry this Decree into execu- tion. No. 8. Decree in Creditors Bill. Commence as in No. 1, Ante. 776, On consideration whereof, the Court do find that the defendant, J. S., on the 10th day of April, 1846, was indebted to the defendant, C. D., in the sum of — dollars, and which, in equity, ought to be applied in payment of the judg- ment of the plaintiff" in the pleadings mentioned ; It is therefore Ordered, Adjudged and Decreed, that the said J. S. in thirty days pay into the hands of the Master, the said sum of — dollars, with in- terest thereon from the 10th day of April, 1846, until paid ; and in default thereof that execution issue for the same, as upon judgments 784 CHANCERY. Orders and Decrees. at Law : And it is Ordered, that after paying the costs of this suit, the Master pay the residue of said money to the plaintiff, to be ap- plied upon the judgment in the pleadings mentioned. No. 9. Decree for Adjusting Claims against a Joint Stock Company, ^c.^ Commence as in No. 1. Ante. 776. On consideration whereof It IS Ordered, Adjudged and Decreed, that the Report of the Mas- ter be set aside, and that it be referred to J. S. as a Special Master to take an account of what is due to the plaintiffs, and all other the creditors of the company in the pleadings mentioned, and the said Master is to cause an advertisement to be published in the — , and such other public papers as he shall think fit, for the creditors of the said company to come in before him, at such times and places as he may designate in said advertisement, and prove their debts, so that the same be done by the 10th day of April next ; And in taking the said account the Master is to observe the following directions : 1st. Debts contracted in the course of business contemplated by the Company at its formation, are to be charged against all the mem- bers. 2nd. Debts contracted in the course of business not contemplated by the Company at its formation, but afterward engaged in, are to be charged against the members whose assent thereto, expressed or implied, shall be proved. 3rd. Condititional Subscriptions for Stock are to be regarded as absolute. 4th. Transfers of Stock made in good faith with the consent of the Directors, and entered in due form of law, are to be held valid, but members thus assigning are to be liable for the debts then existing. 5th. Each Member is to be held liable in proportion to his Stock. 6th. In case of insolvency, the loss is to be apportioned among the solvent members. 7th. Losses from culpable negligence, misconduct, or transcend- ing powers and trusts, are to be charged to the members guilty thereof. And for the better stating said accounts, and discovery of the mat- ters aforesaid, the parties are to produce before the said Master, up- on oath, all deeds, books, papers and writings in their custody or power relating thereto ; and the said Master, at the instance of any party in interest, or his attorney, may examine parties and witnesses, touching the premises, in person, or he may cause the same to be (a) This is in substance the Decree in 13 Ohio, 300. CHANCERY. 785 Orders and Decrees. done before any other person competent to take testimony, in this State or elsewhere, interrogatories for that purpose being first filed with the Master; and the necessary funds being deposited with him, in case of any such examination, other than before himself; And the said Master is to make all just allowances to the parties, and report a plan for the adjustment and payment of such debts as he may find due, returning with his report all the evidence taken under this decree. And It is further Ordered, Adjudged and Decreed, that the said Master hold his first session at such time and place in the town of — , as he may think fit, giving twenty days notice thereof by advertisement in — newspapers, printed at — , and may after- wards sit upon his own adjournments ; And his report is to be filed with the Clerk of — Court, on or before the first day of June next ; and exceptions thereto shall be filed at least ten days before the next term of the — Court of the said County of — And the Court appoint S. B. to be Receiver of all the property and effects whatsoever of said Company, in whose hands soever the same may be, the said S. B., first giving security, to be approved of by the Clerk of said Court, in the sum of — dollars, duly to account for and pay what he shall so receive, as is hereinafter directed, or as the Court shall direct. And all debts due to said Company are to be paid to the said Receiver, who is to collect the same, by process of law, or otherwise, as there may be occasion ; And the said Receiver is to convert all the property of said Company into money, on the best terms he can ; and at the next term of said Court render his account. It is Ordered that said Receiver out of any money in his hands pay to the said Master the sum of — dollars in advance for his ex- penses, &c. No. 10. Decree for Trial of an Issue at Law.^ Commence as in No. 1, Ante. 776. It is Ordered that the parties do proceed to a trial at law at the next term of the Court of — , to be holden for the County of — , upon the following issues ; Whether, &c. And the plaintiff here is to be plaintiff at Law, and (a) The trial of any issue in fact on the issue devisavit vel non, or on may be had at Law, where the inter- bills for a divorce for adultery, to vention of a jury is necessary ; send a matter of fact to be tried by Swan's Stat. 708, §33. And in ca- a jury, if it can, to its own satisfac- ses of contested wills, a trial at law tion, decide itself upon the evidence ; is peremptory ; Id. 995, §23. The 5 Johns. Ch. 118; 3 Ves. fy Bea. Court is ^never bound, except it be 42. Issues should be directed only 99 786 CHANCERY. Orders and Decrees. is to file a declaration in — days from this date, and the defendants are to appear and plead to issue in — days thereafter. [In case of a contested will, or other cases where it is necessary for the original paper to be had on the tibial at Law, say, And the plaintiff here is to plaintiff at law, and in — days from this dale is to file in the Clerk's office of said Court of — , an authenticated copy of this de- cree, with the said original paper marked, &lc., annexed thereto, and is to file a declaration, &c.] And it is hereby referred to the Mas- ter to settle the said issue, in case the parties differ about the same. And It is further Ordered, that all books, papers and writings in the custody or power of any of the parties relating to the matters in question be produced before the said Master upon oath, on or be- fore — next ; and any of the parties are to be at liberty to inspect the same, and to take copies thereof, or of such parts thereof as they shall think fit, at their own expense ; and such of the said books, papers and writings, are to be produced at such trial, as either party shall give notice of for that purpose. And if the jury find any spe- cial matter, the same is to be specified in their verdict. And the^"con- sideration of costs, and of all further directions, is reserved until after the said trial shall be had. And any of the parties are to be at lib- erty to apply to the Court as occasion fehall require. And the cause is continued until next term. in those cases where there is want of evidence, or where the evidence is contradictory, or so nearly balanced as to render an open and rigid cross- examination of the witnesses before a jury necessary ; 3 Paige, 453. See 6 Johns. Ch. 2.55; 8 Dana, 207 ; 2 Rajid. 109 ; 6 Munf. 245, 459; 1 Green Ch. 290; 7 Pick. 369; 12 N. Hamp. Rep. 575; 3 Howard, {Miss) 276 ; 4 Blackf. 116; R. M. Charlton Rep. 125, 184. A trial at Law was ordered in the following cases ; Whether an exhibit in the cause "marked B. purporting to be a gift of slaves is fraudulent, or signed bona fide by the complainant's testator" ; 1 I)e- saus. 124. "Whether the said Mr. Cattell died entitled in fee simple to all the lands contained within the lines of the plat of the said tract, exhibited at the sale, or what part thereof"; 7(/. 159. Whether a cer- tain deed be genuine or not ; and whether the party had acquired title by adverse possession ; 1 Hopk. 436. Whether certain transactions be usu- rious or not ; 8 Paige, 4.52 ; Cowp. 727; 3 Johns. Rep. 139, 250; 2 Johns. Cas. 280; 1 Taunt. AVi; 2 Randolph, 109. Whether an abso- lute bill of sale was intended only as asecurity; 1 Ra7idolph,2VJ. Wheth- er a secret partnership existed or not ; 6 M2/nf. 464. See 1 Bland, 88, note (h); 4 Call, 416; 2 I)e- saiis. 640 ; 2 Paige, 27 ; 3 JVendell, 503 ; 4 Munf. 450 ; 22 JVend. 526 ; 3 Johns. Rep. 142 ; 5 do. 366 ; 5 Burr. 2673, The Court sometimes directs the issue to be tried in a particular Coun- ty ; 2 Ves. 516. The Form of the Declaration, Plea, &c., will be best seen from a transcript of the proceedings in the Court of Law, and which may be as follows : — See 2 Turn. Pr. 181; Seaton's Decrees,2A0; Blake Ch. Pr. 323 ; 2 Chitt. PI. 234 : Pleas continued and held at the CHANCERY. 787 Orders and ])ecrees. Special Directions — For Examination of Parties. And It is Ordered, that either party be at liberty to examine the plaintiffs, T. C. and S. W., and the defendant, H. P., or any or either of them, as witnesses or a witness at such trial. See, ^Madd. Rep. 236; 1 Jac. 520; 1 Swanston, A()\ Seaton's Decrees, ^A2. Special Directions — For Reading Depositions. And It is Ordered, that the parties be at liberty to read the de- positions in this cause of such witnesses as upon such trial shall be proved to be dead, or unable to attend to be examined. See, 1 Cox, 184; 15 Ves. 176; 1 Ves. <^ Bea. 335, 339; 1 Swanston, 170; 1 Dick. 144; 1 Wils. 155 ; Seatotvs Decrees, 242. Order for New Trial of Issue ; Seaton^s Decrees, 244. Whereas, by an Order made in this cause, bearing date the 7th day of December, 1813, it was ordered that the parties should pro- ceed to a trial at law, &c. In pursuance of which order, the parties proceeded to trial of the second issue mentioned in the said order, when the jury found a verdict for the plaintiff: And whereas, Mr. D,, &-C., of counsel for the defendant, Charles Dickinson, this day moved and offered divers reasons unto the Right Honorable, &c., that a new trial might be had of the said issue, in the presence of Sir A. P., &.C., of counsel for the plaintiff, Mr. W., of counsel for the Court House in C, within and for said transcript and filed in the said the County of R., in the — Judicial Clerk's office therewith, purporting Circuit of the Court of Common Pleas to be the last will and testament of of the State of Ohio, before the Hon- A. B., bearing date, &c. And after- orable G. S. President Judge of said wards, to wit, on, &c., the said J. S. ' — Judicial Circuit, and F. S., F. P. filed in the Clerk's office aforesaid and G. H., Esquires, Associate Judg- the following declaration, to wit: — es of said Court of Common Pleas County ss, Court of Common Pleas; for the County of R. aforesaid, of the July 1st, 1848. J. S. complains of term of — , that is to say, on the — J. N. in a plea of assumpsit, for that day of — , A. D. — . whereas before the making of the Be it remembered that heretofore, defendant's promise hereinafter men- to wit, on — , came J. S. by E. F. his tioned, to wit, on, &c., [iiny day,'] at attorney, and filed in the Clerk's the County aforesaid, a discourse was office of the said Court of Common had between the plain' iiT and defen- Pleas, an authenticated transcript of dant, wherein a certain question then a certain decree of the Court of — , and there arose, that is to say, sitting in Chancery, bearing date, [" whether a certain paper writing &c., and directing a trial at Law of purporting to be the last will and certain matters in issue between the testament of A. B. of, &c., bearing said J. S. and J, N. touching a cer- date, &c., (and which is now upon tain paper writing annexed to the the files of this Court ready to be 788 CHANCERY. Orders and Decrees. defendants, Thomas Watmore and James Watmore, who con- sented thereto: Whereupon, and upon iiearing an affidavit of R. C, &c., read, his Honor doth order that, upon the defendant, Charles Dickinson, paying unto the plaintitt' his costs of the former trial, to be taxed by Mr. A., one, &c., in case the parties differ, the parties do forthwith proceed to a new trial of the second issue directed in this cause, by the order bearing date the 7th day of December, 1813, in the manner directed by the said order. No. 11. Order awarding an issue quantum damnificatus ; 1 Johns. Ch. 151. Commence as in No. 1, Ante. 776. The Court do find, That the plaintiff ought to receive, from the defendants in this suit, or their suucessors in office, the damages sustained by, and compensa- produced) be the last will and testa- ment of the said A. B., or not" ;] and in that discourse the plainlifF as- serted that the said paper writing was the last will and testament of the said A. B., which assertion of the plaintiff the defendant then and there denied, and then and there affirmed the contrary thereof; and thereupon afterwards, to wit, on the day and year last aforesaid, at the County aforesaid, in consideration, that the plaintiff, at the request of the defen- dant, had then and there paid to the defendant the sum of ten dollars, he the defendant undertook, and then and there promised the plaintiff to pay him the sum of five dollars if the said paper writing be the last will and testament of the said A. B.; and the plaintiff in fact says that the said paper writing is the last will and testament of the said A. B. Where- of the defendant afterwards, to wit, on the day and year last aforesaid, had notice, whereby he the defendant then and there became liable to pay to the plaintiff the said sum of five dollars ; yet the defendant hath not paid the same or any part thereof; To the plaintifTs damage of five dol- lars, and therefore he sues ; By X. Y. his Att'y. And afterwards, to wit, on, &c., the said J. N. filed in the said Clerk's office, the following plea, to [wit : J. N. ads. J. S. And the said J. 'N. comes and defends, &c., and says that ,the said J. S. ought not to have and maintain his action aforesaid thereof against him, because he says, that though true it is that the said discourse was had between the said J. S. and J. N. wherein the said question did arise as aforesaid, and that he the said J. N. did undertake and promise, in manner and form as the said J. S. hath above in that behalf alleged. Nevertheless, for plea in this behalf, the said J. N. says that the said pa- per writing is not the last will and testament of the said A. B., in man- ner and form as the said J. S. hath above in that behalf alleged, and of this the said J. N. puts himself upon the country, and the said J. S. doth tke like. And afterwards, to wit, on, &c., came the parties, by their attor- neys, and thereupon came a jury, to wit, A. S., &c., who being empan- nelled and sworn the truth to speak upon the issue joined between the parties, upon their oaths do say that the said paper writing in the said CHANCERY. 789 Orders and Decrees. tion due to him, by reason of lowering his mill dam across the Wall- kill, in the Bill mentioned, at the time the same was done ; and also, by reason of the defendants, their predecessors, or successors in of- fice, entering upon, using, and occupying the lands of the plaintiff, for digging a canal, and otherwise, as the same may have been used for the purpose of draining, or to facilitate and assist in draining, the drowned lands, in the pleadings mentioned. But, inasmuch as it does not satisfactorily appear to the Court, that any agreement has been made by and between the parties, as to the amount of such damages and compensation, to the end that the same may be satisfac- torily ascertained, It is further Ordered, Adjudged and Decreed, that an issue be made up between the parties, to ascertain, by the verdict of a jury of the County of Orange, the amount of such damages and compensation ; that the said issue be tried at the next, declaration mentioned is, [o?" is noQ the last will and testament of the said J. S. in manner and form as the said plaintiff hath in his said declaration in that behalf alleged, and they as- sess the damages of the plaintiff by reason of the premises to — [7^ is not usual to enter up judgment ; Neivl. Ch. Pr. 179.] Add Attesta- tion and Certificate as Ante. 186. For other Forms of feigned issues, See 1 Wentw. 120 ; Lill. Ent. 45, 65; 2 Saund. 261. In 5 Ohio, 278, the order directing an issue was as follows : — "It being made to ap- pear to the Court, that the complain- ant in this case, seeks to set aside a certain paper writing, purporting to be the last will and testament of Timothy Green, late of the County of Fairfield, deceased, which has been admitted to probate, according to the statute in such cases made and pro- vided ; it is ordered, that an issue at law be made up between the parties, to try the validity of said will, and transmitted to the Supreme Court of said County, next to be holden there- in, to ascertain by the verdict of a ju- ry, whether said writing is the valid last will and testament of the said Timothy Green or not ; and that, in making the said issue, the respon- dents file a declaiation affirming the said paper writing to be the last will and testament of the said Timothy Green. And the said complainant shall plead to the said declaration, that the said paper writing is not the last will of the said Timothy Green, deceased. It is further or- dered, that either party may use on the trial of said issue at law, any of the depositions properly taken, and now on file in this cause, which con- tain relevent and competent evidence, provided, the witnesses whose depo- sitions are offered at the trial, are deceased, aged, infirm, or without the jurisdiction of the Court, as depo- sitions taken de bene esse, are allow- ed to be read in cases at law. It is further ordered that the motion of the respondent, for leave to read his own answer in evidence, be denied, and that this cause be continued." In general, the Court will not grant an issue before hearing; 18 Ves. 481 ; but it seems that where a motion is made to commit a party for breach of an injunction, and the fact of the injunction having been broken, is strongly controverted upon the affi- davits, the Court wiil direct an issue to try it ; Cooper Rep. 77. The Court will also direct an issue upon a motion for an injunction, or for a receiver, where the facts are positive- 790 CHANCERY. Orders and Decrees. or any subsequent circuit in the said County ; that, for the purpose of forming a proper issue for the assessment of the damages and compensation, to which the plaintiff' is declared to be entitled as afore- said, the plaintiff' shall declare, in assiwipsit, that the defendants prom- ised to pay him as much as lie reasonably deserved to have for his said damages and compensation, or to that effect ; and to which declaration the plea shall be non assumpsit ; on the trial, the plaintiff' shall not set up any agreemeent between him and the defendants, or their pre- decessors in office, as to the amount of damages and compensation ; and the defendants shall admit their assumption to pay the plaintiff* so much as he reasonably deserved to have as damages and compen- sation, for lowering his mill dam, by the defendants' request, and for their accommodation, as commissioners for draining the drowned lands, and for the defendants, or their predecessors, or successors in office, entering upon, using, and occupying the lands of the plaintiff, as aforesaid ; and the jury are to allow, in their assessment of dam- ages, interest upon the amount of the damages they may find, for such damages and compensation, from the times when the several acts were done, for which the plaintiff is declared to be entitled to damages and compensation as aforesaid, to the time of rendering the verdict ; and that all fuither directions be reserved until the said issue shall be tried, and the postea returned to this Court. No. 1 2. Decree setting aside a Deed as fraudulent, and direct- ing a re-conveyance of the Estate, and surrender of Possession^ Commence as in No. 1, Ante. 776. On consideration whereof, the Court do find the equity of the case with the complainant, and that ly denied upon the affidavit of the against the weight of evidence, the defendant; 1 Jac. 516; 4 Madd. Cliancellor will direct a new trial, es- Bep. 236. See 7 Pick. 344, 309 ; pecially if a former jury disagreed ; 9 A\ Hamp. Pep. 349. 1 ff'aah. 336. Where an issue is The finding of the jury must ap- directed to be tried at Law, applica- pear by the record ; a certificate of tion for a new trial is made lo the the Judge made from memory will Court which ordered the issue ; 2 not be sufficient ; 6 Verger, 402. If Paige, 482 ; 1 ///// C7i. Pep. 443 ; on the trial of the issue, bills of excep- 4 Desinis. bOb. See 8 Bona, 207, tion are taken, they must be brought 1 £d. Cli. Pep. 14 ; 1 Hen. 4- Munf. to the notice of the Court of Chan- 548 ; 2 Story's Eq. Jur. §1447 ; 8 eery which sent the issue; 3 Bow- Paige, 432; 4 Fes. 756. ard, U.S. 691. Otherwise they can- not be noticed in an appellate Court; , . . . r ■ ■ ■ hi. See 12 N. Ilamp. Pep. 573. (a) A writ of assistance is, in or- If the Judge before whom the issue binary cases, the first and only pro- is tried certifies the verdict to be ^^^ss for giving possession of land CHANCERY. 791 Orders and Decrees the Deed of conveyance in the pleadings mentioned, executed by, &c., bearing date, &c., is fraudulent and void ; It is therefore Ordered, Adjudged and Decreed, that said Deed be delivered up and cancelled and altogether held for nothing, and that the said C. D., in ten days from this date, do execute to the said A. B. a Deed of re-conveyance of the same premises, in fee simple, with covenants of special warranty, and in default thereof, then that this decree shall operate as such Deed of re-conveyance, according to the form of the Statute in such case made and provided. And It is further Ord- ered, that the said C. D., or any person who has come in under him pending this suit, do forthwith, on demand, deliver up the possession of the said premises to the said A. B. And It is further Ordered, that within sixty days from this date the said C. D. pay the costs of this suit, and in default thereof that execution issue therefore as upon judgments at law. under a Decree in Chancery ; 1 Hopk. 422 ; 8 Paige, 33 ; 2 Dan. Ch. Pr. 1280. This writ is, in ef- fect, the same with the Habere Fa- cias possessionem, at Law ; 1 Hopk. 422, See 4 Johns. Ch. 609; 1 Harris ^ Johns. 370. In England, the Court has sometimes issued a commission to Justices of the Peace, and sometimes to the Sheriff, to put the plaintiff in possession ; Curs. Cane. 371, 272. See ^nte. 634. In 1 Ed. Ch. Pep. 272, a Decree had been taken setting aside a Deed of real estate, and directing the de- fendants to reconvey to the complain- ant, and give up possession. On default, the complainant moved for a writ of assistance, founding his mo- tion on the following documents: Notice of the motion and affidavit of personal service of a copy of the same and of the other papers ; A certified copy of the decree ; A certificate of the enrollment of the decree ; Deed of reconveyance approved by a Master ; Affidavit showing a demand of possession and execution of the deed of reconveyance and refusal to do either : — The Vice Chancellor : Take a writ of assistance ; and let an attachment issue, in case the deed be not executed within ten days. Form of Writ of Assistance. The State of Ohio, To the Sheriff of the County of' — , as well at present as for the fu- ture, Greeting : Whereas according to the tenor and true meaning of a decree in Chancery, in a certain cause depen- ding in our Court of Common Pleas within and for the County of — , be- tween A. B. plaintiff and C. D. de- fendant, the said C. D. was decreed to deliver possession to the said A. B., of the messuage, lands and prem- ises in the pleadings in the said cause mentioned. And whereas the said messuage, lands and premises, are situated, &c., [^description, as in the decree^ ; yet he the said C. D. and other ill disposed persons his accom- plices, have refused to pay obedience to said decree, and detain and keep the possession of the said messuage, lands and premises, in manifest con- tempt of us, and our said Court ; Know ye therefore, that we being willing and desirous that justice should be done to the said A. B. in this behalf, do give unto you full 792 CHANCERY. Orders and Decrees. No. 1.3. Decree for sale of Mortgaged Premises ^ Commence as in No. 1, A7ite. 776. On consideration whereof, the Court do find the equity of the case with the complainant, and that there is due to him, on this 14th day of April, 1846, upon the mort- gage in the Bill mentioned, the sum of — dollars ; It is therefore Ordered, Adjudged and Decreed, that the defendant, within thirty days from this date, pay to the said complainant the said sum of — dollars, with the interest to be computed thereon from this day until paid, and also the costs of this suit to be taxed ; and in default there- of, that the Sheriff' of this County, for the time being, who is hereby appointed Special Master for that purpose, proceed to sell the tene- ments in the said Bill mentioned, as upon judgments at law, and re- port his proceedings in the premises to the next Term of this Court, to which time this cause is continued. power and authority to place and put the said A. B. and his assigns with- out delay, into the full, peaceable and quiet possession of all and singular the said messuage, lands and premi- ses, Avith their appurtenances ; and from time to time, as often as there shall or may be occasion, to maintain and keep him and his assigns in such peaceable and quiet possession, ac- cording to the true intent] and mean- ing of the said decree ; and therefore we do hereby command and enjoin you, that immediately after your re- ceipt of this our commission, you do go and repair and enter into and up- on the said messuage, lands and premises, and that you do remove, eject and expel the said C. D., his tenants, servants and accomplices, each and every of them, out of and from the said messuage, lands and premises, and every part and parcel thereof ; and that you do place and put the said A. B. and his assigns, into the full peaceable and quiet pos- session thereof, and defend and keep him and his assigns in such peaceable and quiet possession, when and as often as any interruption mayor shall from time to time be given, or offered, to them or any of them, according to the true intent and meaning of the said decree ; And herein you are not in any wise to fail. Witness, «fcc. (a) For general Rules regulating Bills in Chancery upon Mortgages, See, .dnte. 648. If the whole debt is due, and the lands are not sufficient to pay the debt, a Receiver may be appointed on filins; the Bill; 5 Paige, 38. See, 1 Bibb, 150. The old practice in England was not to sell, but to foreclose ; Ld. Eldon altered it ; 3 Johns. Ch. 369. Where the first installment is due and a Bill filed, the defendant cannot bring the money into Court ; but a Decree is taken to stand for future payments ; 1 Johns, Ch. 617. So when an- nital interest is not paid ; 2 Johns. Ch. 486. CHANCERY. 793 Orders and Decrees. No. 14. Decree confirming Sale of Mortgaged Premises, and giv- ing Possession to the Purchaser.^ This day came the parties by their Solicitors, [or, the plaintiff^, by his Solicitor, none appearing for the defendant, as the case may be,] and this cause thereupon came on to be further heard upon the Report of the Special Master, and was argued by counsel ; on con- sideration whereof, the Court do find the proceedings of said Master, and the sale by him made of the tenements, in the Bill mentioned, to be in all respects in due form of law ; It is therefore Ordered, Adjudged and Decreed, that the proceedings and sale of said Mas- ter be in all things affirmed ; and that the said Master execute and deliver to said purchaser a deed of the tenements aforesaid, in fee simple, pursuant to the Statute in such case made and provided ; And that of the proceeds of said sale, the said Master, after discharging the costs of this suit, pay to the plaintiff the said sum of — dollars, with interest to be computed thereon from — last, until paid, and the residue, if any, to the defendant. And It is further Ordered, that the defendants who may be in possession of said premises, or any person who has come in under them, or either of them, pending this suit, deliver up the possession thereof, to said purchaser, on demand, and production of said Mas- ter's deed. No. 15. Decree for Appraisement before Foreclosure. Commence as in No. 1, Ante. 776. On consideration whereof, the Court do find the equity of the case with the plaintiflf, and that there is due to him, on this — day of — , A. D. — , upon the mortgage in the Bill mentioned, the sum of — dollars; It is therefore Or- dered, Adjudged and Decreed, that the defendant, within thirty days from this date, pay to the said plaintiff the said sum of — dol- lars, with the interest to be computed thereon, from this day, until paid ; and also the costs of this suit to be taxed ; and in default thereof, that the Sheriff of this County, for the time being, who is hereby appointed special Master for that purpose, proceed, and cause the tenements in said Bill mentioned to be appraised as upon judg- ments at law, and report his proceedings in the premises to the next Term of this Court, to which time this cause is continued. (a) For the mode of enforcing the delivery of possession, See ^nte. 790, Note (a). 100 794 CHANCERY. Orders and Decrees. No. 16. Decree of Foreclosure. This day came the parties, by their Solicitors, [or, the plaintiff, by his Solicitor, none appearing for the defendant, as the case may be,] and this cause thereupon came on to be further heard upon the Re- port of the Special Master ; on consideration whereof, the Court do find the proceedings and appraisement of the said Master to be, in all respects, in due form of law ; and it appearing from the Report of the said Master, that two thirds the appraised value of said tene- ments does not exceed the said sum of — dollars, with the interest thereon, being the amount due to the plaintiff under said mortgage ; It is therefore Ordered, Adjudged and Decreed, that upon the defendant's paying to the plaintiff the said sum of — dollars, with interest to be computed thereon from — last until paid, and the costs of this suit, within — days from this date, the said plaintiff do re- convey the mortgaged premises, free and clear of all incumbrances done by him, or any claiming by, from or under him, and do deliver up all deeds or writings in his custody orpower relating thereto, upon oath, to the said defendant, or to whom he shall appoint ; but in de- fault of the said defendant's paying to the said plaintiff the said sum of — dollars, and interest and costs aforesaid, that the defendant do stand absolutely debarred and foreclosed of and from all equity of re- demption, of, in and to the said mortgaged premises. No. 17. Final Decree for Foreclosure.'^ Upon opening of the matter this present day to the' Court, by M. S., being of the plaintiff's counsel, and it appearing to the satisfac- (a) In England, if the money be 5 B. <§- .^. 605, 687. He is not, not paid, a second Decree of Fore- therefore, entitled to emblements ; closure is now required, though such Doug. 283 ; i T. R. 383. See, was not formerly the practice ; 1 Doug. 22, 23, 282. Where the West, 130; Seafon's Forms, 103. mortgagor has been permitted to re- The Court does not direct the posses- main in possession, the mortgagee is sion to be delivered to the plaintiff, not entitled to an account of part but leaves him to his ejectment; 2 rents and profits ; 2 .^tk. 107; ^ do. Atk. 101. Otherwise in case of re- 234; 2 Ves. 32; 5 do. 438 ; 2 V. 8/- demption ; 2 Atk. 300. Where the B. 252. So the mortgagee of a term mortgagor is in possession, he is not not having taken possession during in the situation of tenant at all ; or the term, is not entitled to rents and at all events, he is not more than profits accrued during the term, tenant at sufferance ; but in a pecu- though in the hands of a Receiver ; bar character, and liable to be treated 1 Swanston, 573. See, 1 T. R. 378 ; as tenant or trespasser, at the option Doug. 279 ; 6 Mad. Ch. Rep. 11 ; 1 of the mortgagee ; S B. fy C. 767 ; Jac. fy Walk. 650. CHANCERY. 795 Orders and Decrees. tion of the Court, by the affidavit of, &c., now read, that the defend- ant has not paid or tendered to the plaintiff the sum of — dollars, and interest, and costs, the money found due to the plaintiff under a for- mer Order of this Court, but that the whole thereof still remains due and unsatisfied ; It is therefore Odered, Adjudged and Decreed, that the said defendant now be and stand absolutely debarred and foreclosed, of and from all right, title, interest, equity and benefit of redemption, of, in and to the said mortgaged premises. No. 18. Decree for Redemption against Mortgagee in Possession.'^ Commence as in No. 1, Ante. 776. It is Ordered, Adjudged AND Decreed, that it be referred to M. H., one of the Masters of this Court, to take an account of what is due to the defendant, R., principal and interest on his said mortgage, and to tax him his costs of this suit. And the said Master is also to take an account of the rents and profits of the said mortgaged premises come to the hands of the said defendant, R., or of any other person or persons by his order or for his use, or which he without his wilful default might have received. And what shall be coming on the said account of rents and profits is to be deducted out of what shall be found due to the (a) A mortgagee in possession terest ; 1 Mad. Ch. Rep. 269 ; 1 must account for what he might have Ves. 278 ; Seaton's Forms, 109. received without his wilful default ; The mortgagee is not allowed any 1 Vern. 45 ; 12 Ves. 493 ; 2 Jac. advantage out of the mortgaged es- ^ Walk. 556; 3 Atk. 582; 1 Mad. tate beyond principal and interest; 2 Ch. Rep. 13,274; 1 B. fy B. 118, Sch. ^ Lef. 218; 13 Ohio, 408. 385. See, 2 ^cA. Sf Lefroy, 661; But he will be allowed sums expend- 13 Ohio, 408, 427. ed by him in necessary repairs and On a Bill to redeem, the time for lasting improvements; 14 Ves. 177; redemption will not be enlarged ; 17 2 Sch. fy Lef. 676 ; 13 Ohio, 408. Ves. 417. On a Bill to redeem, the So sums expended in fines for renew- Court will order the defendant to de- al of leases ; 2 Vern. 84 ; 3 Atk. 4 ; liver up possession to the plaintiff, 1 B.& B. 202. So sums expended without an ejectment ; 2 Ji/k. 360; by him in supporting the tide of the Seaton^s Form's, 107. Upon de- mortgagor; 3 Atk. 518; 2 Vern. fauh, a further Order is necessary 536, 185. But he will be allowed for dismissing the Bill ; 2 B. ^ B. nothing for his personal trouble in re- 564. The final dismission of a Bill ceiving the rents; 1 Vern. 316; 10 for redemption is equivalent to a De- Ves. 405. Notwithstanding an agree- cree for a Foreclosure ; 2 Atk. 267; ment with the morgager for that pur- li Ves. 199. But not a dismission pose; 2 Atk. 120; 2 Sch. ^ Lef for want of prosecution ; 18 Ves. 301; 9 Fes. 271. A njortgagee, or 460. If the mortgagee has been his assignee in possession, is not to overpaid, he will be decreed to pay be allowed for clearing wild lands, the balance due from him, with in- &c. ; 1 Johns. Ch. 385. 796 CHANCERY. Orders and Decrees. said defendant, R., for principal, interest and costs. And for the better taking the said account, all parties are to produce before the said Master, upon oath, all deeds, books, papers and writings in their custody or power relating thereto, and are to be examined upon inter- rogatories as the said Master shall direct, who in taking the said ac- count is to make to the parties all just allowances. And what upon the balance of the said account shall be certified due to the said defend- ant, R., for his principal, interest and costs, It is Ordered, Adjudged AND Decreed, that the said plaintiff, A. B., do pay the same to the said defendant, R., within six months after the said Master shall have made his Report, at such time and place as the said Master shall ap- point, and that thereupon the said defendant, R., do re-surrender the said mortgaged premises to the said plaintiff', A. B., or to such person or persons as he shall direct, free and clear of all incumbrances done by him, or any person claiming, by, from or under hmi, and deliver to the said plaintiff, upon oath, all deeds and writings in his custody or power relating to the said mortgaged premises. But in default of the said plaintiff's paying unto the said defendant, R., what shall be so certified due to him for principal, interest and costs afore- said, at such time and place as aforesaid. It is Ordered, Adjudged AND Decreed, that the said plaintiff's Bill, as against the said defend- ant, R., do from thenceforth stand dismissed out of this Court, with costs, to be taxed. Special Directions. 1. As to Deeds where Part only of the premises are Redeemable. — And in case the said plaintiff shall redeem the said two houses as aforesaid, then It is Ordered, Adjudged and Decreed, that all deeds and writings, relating to the said seven houses, in the custody or power of any of the said parties, be brought before the said Mas- ter upon oath, and such of them as relate to the said two houses only are to be delivered to the plaintiff; and such of them as relate to the five other houses only are to be delivered to the said defendants, H. and S. ; and such of them as relate both to the said two houses and five houses, the said plaintiff' is to be at liberty to have attested cop- ies thereof at his own expense, and then they are to be delivered to the said defendants ; 2 Atk. 360 ; Seaton's Forms, 107. 2. Annual Rests. And in case the Master shall find that the an- nual rents exceed the interest due on the mortgage. It is Ordered, Adjudged and Decreed, that he do make annual rests.'' (a) In taking the accounts against Mad. Ch. Rep. 'ilTii', 13 Pnce, 353; the mortgagee, annual rests will be 13 Ohio, 408. But the direction to directed ; 3 Stk. 360, 410, 534 ; 1 take the account with rests is not of CHANCERY. 797 Orders and Decrees. 3. Alloivance for Repairs. — And what shall be coming on ac- count of said rents and profits is to be applied in the first place, in payment of the interest, and then in sinking the principal ; and the Master is to make annual rests. And in taking the said account, the said Master is to make all just allowances, and particularly for repairs and lasting improvements made by him, or any under whom they claim, on the said two houses, or either of them. And in case what shall appear to be so laid out for lasting improvements shall not be satisfied by the rents and profits before received, the same is to be added to the principal money due on the said mortgage, and carry interest un- til the same shall have been satisfied by subsequent rents and profits ; 2 Atk. 360. 4. Allowance for Improvements. — In the taking of which ac- count, the said Master is to make to all parties all just allnwances; and is also to make to the said defendant an allowance for any lasting improvements ; and what shall be found due on the said account of rents and profits is to be deducted out of what shall be found due for principal, interest and costs, as aforesaid ; Seaton's Forms 112 ; 13 Ohio, 408, 426, 427. No. 19. Final Decree of Dismission of Bill for Redemption.^ Upon opening the matter this present day to the Court by M. S., being of counsel for the defendant, and it appearing to the satisfac- tion of the Court by the affidavit of, dec, now read, that the plain- tiff has not paid or tendered to the defendant the sum of — dollars, and interest and costs, the money found due to the defendant from the plaintiff' under a former Order of this Court, but that the whole thereof still remains due and unsatisfied : It is therefore Ordered, Adjudged and Decreed, that the Bill of the plaintiff do from hence- forth stand absolutely dismissed out of this Court, with costs to be taxed. course ; 19 Fes. 385. Rests cannot ed by the Decree; 1 Mad. Ch. Rep. be directed from a particular period 13. In 11 Fes. 102, it is said by the of the account ; Id. But in 1 Russ. Lord Chancellor that every receipt 530, rests were directed from the forms a rest, but it seems that the time the mortgage appeared to have usual direction is for annual rests; 1 been paid off. The interest never Mad. Ch. Rep. IS; 2^ik.'360, See having been in arrear, and the rents Decrees for Account, Ante. havingannually exceeded the amount of the interest, rests were directed ; (a) See Decree for Redemption, 4 Mad. Ch. Rep. 254. Rests cannot Ante. 795, Note (a). be made by the Master unless direct- 798 \ CHANCERY. Miscellaneous Orders. Miscellaneous Orders. To Report ivhether two bills which have been filed by the same plaintiff against the defendant, are not for one and the same purpose. It is ordered that it be referred to Mr. — , one of the Masters of this Court, to examine and certify whether both the said bills are not for one and the same purpose. To ascertain the fact of a child's or other persons' s existence. This Court doth order that it be referred to Mr. — , one of the Masters of this Court, to examine and certify, whether C. L. in the pleadings of this cause mentioned, was alive on the — day of — , al- so in the pleadings mentioned ; and in case the said Master shall find that the said C. L. died on or before the said day of — , he is to ex- amine and certify, who are, or were his representatives or represen- tative, &c. To approve of a security to be entered into by a defendant, for the payment of all sums of money already come and to come to his hands on a partnership account. This Court doth order that the said A. B. the defendant, do enter into a sufficient security to be approved of by Mr. — , one of the Masters of this Court, duly to account for and pay, as this Court shall direct, all sums of money which have or may come to his hands, arising from the book debts, and other property in the answer of the said defendant alleged to be partnership property. To report whether a defendant is double harrassed by suits at law and equity for the same matter. This Court doth order, that the plaintiff do within — days after notice to his attorney at law, make his election, in which Court he will proceed ; and if he shall elect to proceed in this Court, then his proceedings at law are stayed by injunction ; but if he shall elect to proceed at law, or in default of such election by the lime aforesaid, then the said plaintiff's bill is from thenceforth to stand absolutely dismissed out of this Court, with costs to be taxed. CHANCERY. 799 Miscellaneous Orders. To report if Bill or [amended bill] be scandalous or impertinent. To report if Answer be scandalous or impertinent. To report if Interrogatories be scandalous or impertinent^ To report if Answer be insufficient. It is ordered that it be referred to Mr. S — , one of the Masters of this Court, to look into the plaintiff's bill, the defendant's answer and the plaintiff's exceptions taken thereto, and to certify whether the defendant's said answer be insufficient in the points excepted to or not. For the purpose of continuing an Injunction obtained by a Plain- tiff. — To report whether Defendant's Answer to the Bill be in- sufficient. This Court doth order that it be referred to Mr. — , one of (h& Masters of this Court, to look into the plaintiff's bill, the answer of the said defendant, and the plaintiff's exceptions taken thereto, an<3 certify whether the said defendant's answer be sufficient in the points' excepted to or not, but the plaintiff is to procure the said Master's report in — days, or in default thereof the injunction is to stand ab- solutely dissolved without further motion ; which in the mean time is hereby continued. To report if the Plaintiffs can make a good Title to a Purchaser. This Court doth order that it be referred to Mr. — , one of the Masters of this Court, to see if a good title can be made by the said plaintiffs to the said estate and premises comprised in the agreement in the pleadings mentioned. To report whether suit is for the benefit of an infant. This Court doth order that it be referred to G. W — , one of the Masters of this Court, to inquire and state to the Court which of the said two suits it will be most proper, and for the advantage of the infant, to be prosecuted ; and in making such inquiry, he is to be at liberty to state all special circumstances, and such further order shall be made herein as shall appear to this Court to be necessary, after the said Master shall have made his report thereon. 800 CHANCERY. Miscellaneous Orders. To Inquire who are the Next of Kin of a Testator or Intestate. And it is ordered that the said Master do inquire, and state to the Court, who was or were the next of kin of the testator John Thomas Smith, in the pleadings mentioned, living at the time of his death, and in case any of them have since died, who is or are the personal representative or representatives of him, her, or them so dying. Partition of lands ; Bennett's Pr. 141. The Court do order and decree, that a partition be made of the .estates in question in this cause ; and it is ordered that a commission do issue, directed to certain commissioners to be therein named, to Commission for Partition. The State of Ohio, To John White, Charles Day, Robert Abrahams, and Edward Mawley, gentlemen, Greeting : Whereas by a decree pronounced in our Court of Common Pleas with- in and for the County of — , in Chan- cery Sitting, bearing date the 21 day of July, 1829, upon the hearing of a certain cause depending in our said Court, wherein George Bennet is complainant, Mary Grantham, Isabel- la Grantham, George Algood Gran- tham, and Jane Grantham, William Clarke Grantham, Ed ward Grantham, Mary Grantham, infants, by John Speedwell their guardian, and Joseph Ward, are defendants ; it was order- and decreed that a partition should be made of the estates in question ; and it was ordered that a commission should issue directed to certain com- missioners to be therein named to de- vide the same into two equal moieties; and it was ordered that one moiety thereof should be alloted as the share of the complainant, and the other moiety thereof should be allotted as the share of the defendants Mary Grantham, Isabella^Grantham, George Algood Grantham, Jane Grantham, William Clarke Grantham, Edward Grantham, and Mary Grantham, sub- ject to the trusts of the testator's will; and it was ordered that the complain- ant and the said last named defen- dants should hold and enjoy their respective moieties in severalty ac- cording to such allotments, and it was ordered that all deeds and ivri- tings relating to the said estates should be produced before the com- missioners vpon oath as they should require ; and the commissioners were to be at liberty to examine witnesses upon oath, and take their depositions in writing, and return the same with the said commission : Now know ye, that we, in confidence of your pru- dence and fidelity, have appointed you, and do by these presents give full power and authority unto you any three or two of you, and do here- bj^ command you, that you, any three or tAvo of you, do assemble and meet together at certain, proper, and con- venient times and places, by you, any three or two of you, to be for that purpose appointed, and that you, any three or two of you, do from time to time go to, enter upon, view, walk CHANCERY. 801 Miscellaneous Orders. divide the same into two equal parts. And it is ordered that one moiety thereof be allotted as the share of the plaintiff, and the other moiety thereof be allotted as the share of the defendants, subject to over, and survey the estates and premises in question, in the said de- cree and pleadings of the said cause mentioned, and according to the best of your skill, knowledge, and judg- ment, make a fair partition, division, and allotment thereof, and the same separate, set apart, and divide into two equal moieties, and allot and ap- point one moiety thereof, as and for the share of the complainant, and the other moiety thereof, as and for the share of the said defendants Mary Grantham, Isabella Grantham, George Algood Grantham, Jane Grantham, William Clarke Grantham, Edward Grantham, and Mary Grantham, sub- ject to the trusts of the testators will ; the said respective moieties to be held and enjoyed by the said com- plainant, and the said Mary Gran- tham, Isabella Grantham, George Algood Grantham, Jane Grantham, William Clarke Grantham, Edward Grantham, and Mary Grantham, in severalty, according to such allot- ments, and to the intent and meaning of the said recited decree, and the parts so divided to distinguish and separate by certain metes and bounds; and for the better making such di- vision, we do hereby authorize and empower you, any three or two of you, to cause all such witnesses as you shall see occasion to come before you, and then and there to examine each and every of them apart, upon their respective corporal oaths upon the holy Evangelists, first taken be- fore you, any three or two of you, upon such interrogatories in writing as you shall see occasion, to discover and make out the truth of the prem- ises, and to take the depositions of such Avitnesses in writing, and cause the same to be plainly and fairly en- grossed or written on parchment ; and when ye have done and performed those things, ye shall certify and re- turn into our Court of Chancery without delay, wheresoever our said Court shall then be, your facts and proceedings in the premises by your certificate fairly written on parch- ment, together with the said deposi- tions and interrogatories, if any, as also this writ closed up under the seals of you, any three or two of you. Witness, &c. Certificate or return of the Commis- sioners ; Bennett's Pr. 185. We whose names are hereunto subscribed, bemg commissioners na- med in the commission hereunto an- nexed, do humbly certify unto your lordship, that we did on Wednesday the 26th day of March, in the year of our Lord 1830, assemble and meet together pursuant to due notice given for that purpose, at the Talbot Coffee House, Rathbone Place in the Coun- ty of Middlesex, and did from thence on that day, and sundry other times, go to, enter upon, view, walk over, and survey the several estates and premises in question in this cause, and by the said annexed commission directed to be by us divided and al- loted in manner therein mentioned, and. We have been attended by the solicitor for the complainant, and by the solicitors for the defendants, and we have inspected certain leases, counterparts of leases and other pa- pers and writings laid before us by the said respective parties, and also an inventory or schedule laid before us by the solicitors for the said plain- 101 802 CHANCERY. Miscellaneous Orders. the trusts of the said testator's will. And it is ordered that the plaintiff and defendants do hold and enjoy their respective moieties in severalty according to such allotments ; and it is ordered that the tiff and defendants, and identified by them ; and we further humbly certi- fy, that from such our inspection and examination tve find that the said estates and premises do consist of several leasehold messuages or tene- ments, coach-houses, stables, build- ings, or otlier hereditaments, situate in the several parishes of St. Giles in the Fields, St. George, Blooms- bury, and St. Mary-le-bone in the County of Middlesex, hereinafter particularlj'' mentioned (that is to say,) all that messuage or tenement situate on the south side of Bedford Square, in the said parish of St. Giles in the Fields, and distinguished by the parochial number 39 in the said square, being the corner house of Bedford Square, and the east side of Caroline Street, in the said parish of St. Giles in the Fields, and now or late in the occupation of Mr. Green ; and also all those four several mes- suages or 'tenements situate on the north side of Bedford Square afore- said, distinguished by the parochial Nos. 44, 4(5, 47, and 48, being res- pectively the 6th, 8th, 9th, and 10th houses eastward from Caroline Street aforesaid, (the corner house exclu- sively,) and now or late in the res- pective occupations of Baron Thom- son, Mr. Barker, Mr. Panther, and John Read, Esq. ; and also all that messuage or tenement situate on the south side of Bedford Square afore- said, in the said parish of St. George, Bloomsbury, distinguished by the parochial No. 51, being the thirteenth house from Caroline Street aforesaid, now or late in the occupation of John Morgan, Esq. ; and also all those two several messuages or tenements situ- ate on the west side of Bedford Square aforesaid, in the said parish of St. Giles in the Fields, distin- guished by the Nos. 37 and 38, being respectively the tenth and eleventh houses south of Bedford Street, in the said last-mentioned parish, and including the corner house, and now or late in the respective occupations of Mrs, Cook, and Miss Tyrell ; and also all those three several 'messua- ges, [jtnd so proceed describing ev- ery parlicidar house, tenement, cot- tage, curtilage, or other premises, according to the facts of the case.~\ Jind we do humbly further certify, that after such inspection of the said estate and premises, as aforesaid, \ve did, according to the best of our skill, knowledge, and judgment, make a fair partition, division, and allot- ment of the said estates and premises in two equal moieties, or as near thereto as we were able ; and having so divided and allotted the same es- tates and premises as aforesaid, we did, in further execution of the said commission, and by virtue of and obedience to an order made in this cause bearing date the 10th day of June, 1830, on Friday, the 28th day of the month of July, 1830, assemble and meet together, pursuant to due notice given for that purpose, at the Talbot Coffee House aforesaid, for the purpose of determining by lot which of the said moieties of the said estates and premises should be allot- ted to the plaintiff, and which of them to the defendants ; and a par- ticular or schedule having been pre- pared by us of each of the said moie- ties of the said estates and premises, and designated and described respec- tively as lots 1 and 2, the persons named in the said order did there- upon proceed to draw the said lots in the manner thereby prescribed, in CHANCERY. 803 Miscellaneous Orders. assignments to be executed by the parties to each other be respited until the defendants, the infants, shall attain their ages of twenty-one years, and they are then to join therein, unless they, on being served our presence and in the presence of the solicitors for both parties, and that Mr. A— B — , the soUcitor for the said plaintiff, did draw lot 1 of the said estates and premises on be- half of the said plaintiff, and that the defendant Mary Grantham did draw- lot 2 of the said estates and premises on behalf of herself and the other de- fendants, her brothers and sisters : And we have therefore allotted, and do hereby allot unto the said plain- tiff George Bennet, as and for his moiety of the said estates and prem- ises, the premises which were so as aforesaid comprised in the 'said lot 1, and which do consist of the seve- ral particulars following-, (that is to say,) all those the said three several messuages or tenements, situate on the south side of Bedford Square aforesaid, in the said paiish of St. Giles in the Fields, numbered res- pectively 39, 44 and 46 ; and also all those the said two several mes- suages or tenements situate on the west side of Caroline Street aforesaid, numbered respectively 7 and 8 ; and also all those the said seven several messuages or tenements situate on the south side of New Store Street afore- said, and now numbered respectively 19, 20, 21, 22, 23, 24 and 25 ; and also all that the said piece or parcel of ground on the south side of Gow- er Mews aforesaid, leased at 61. per annum ; and also all those the said coach-houses and stables situate in Gower Mews aforesaid, now or late in the occupation of Mrs. Chalie ; and also all those stables situate in Gower Mews aforesaid, hereinbefore mentioned ; and also all that the said messuage or tenement situate on the south side of Bedford Square afore- said, in the said parish of St. George, Bloomsbury, numbered 52, with the offices, counting-houses, stables, and other appurtenances thereunto be- longing ; and also all those the said two several messuages or tenements situate on the north side of New Store Street aforesaid, numbered res- pectively 6 and 7, with the timber- yards and sheds in the rear of the said last-mentioned messuage or ten- ement, and therewith occupied and enjoyed ; and also all those the said five several messuages or tenements, situate on the west side of Manches- ter Street aforesaid, numbered res- pectively 48, 50 and 52 ; and also all the said stable-yard situate at the back of Manchester Street aforesaid, with the various coach-houses and stables thereon erected, now or late in the occupation of the said Mr. Clarke ; and also all those the said four several messuages or tenements situate on the east side of Manchester Street aforesaid, numbered respec- tively 4, 5, 6 and 7; and also all that the said messuage or tenement, situ- ate on the west side of Manchester Street aforesaid, numbered 47 ; and also all those the said four several messuages or tenements, situate on the south side of Blanford Street aforesaid, numbered respectively 18, 19, 22 and 23 ; and also all those the said two several messuages or tene- ments situate on the south side of Dorset Street aforesaid, numbered respectively 52 and 53 ; and also all that the said messuage or tenement situate on the west side of Manches- ter Street aforesaid, numbered 28 ; and also all those the said several messuages or tenements situate on the west side of Manchester Street aforesaid, numbered respectively 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 804 CHANCERY. Miscellaneous Orders. with subpoena to show cause against the same within six months after they shall have attained such age, shall show good cause to the con- trary thereof unto this Court ; and it is ordered that all deeds and writings relating to the said estates be produced before the said com- missioners, on oath, as they shall require ; and the commissioners are 39, 40, 41, 42, 43 and 44, [so on to the end of the parcels comprised in lot 1.] t^nd ive have allotted and do hereby allot, unto the said defen- dants Mary Grantham, Isabella Gran- tham, George Grantham, William Clark Grantham, Edward Grantham, and Mary Grantham, as and for their moiety of the said estates and premi- ses, subject to the trusts of the will of Obadiah Bennet, the testator in the pleadings of this cause particu- larly mentioned, the premises which were so as aforesaid comprised in the said lot 2, and which do consist of the several particulars following, (that is to say,) all those the said two several messuages or tenements situ- ate on the south side of Bedford Square aforesaid, in the said parish of St. Giles in the Fields, numbered respectively 47 and 48 ; and all that the said messuage or tenement situ- ate on the south side of Bedford Square aforesaid, in the parish of St. George, Bloomsbury, numbered 51 ; and also all those the said two several messuages or tenements, situate on the west side of Bedford Square aforesaid in the said parish of St. Giles in the Fields, numbered res- pectively 37 and 38 ; and also all that the said messuage or tenement situate on the west side of Caroline Street aforesaid, numbered 9; and also all those the said four several messua- ges or tenements situate on the east side of Charlotte Street aforesaid, numbered respectively 9, 10, 11 and 12 ; and also all that messuage or tenement situate on the east side of Charlotte Street aforesaid, late num- bered 1 in the said street, but now 103, in Great Russell Street afore- said ; and also all those the said two several messuages or tenements situ- ate on the east side of Gower Street aforesaid, numbered respectively 9 and 10 ; and also all that coach- house and stable situate on the west side of Chenies Mews aforesaid, and the north side of Little Britain 'afore- said, part leased to Wedale Corbett, Esq., and the other part to Mr. Lake ; and also all that the said messuage or tenement situate on the east side of Manchester Street aforesaid, num- bered 1 ; and also all those the said four several messuages or tenements situate on the north side of George Street, in the said parish of St. Mary- le-bone, numbered respectively 3, 4, 5 and 6 ; and also all those, [and so on to the end of the parcels compri- sed in lot 2.3 And we do further humbly certify unto your lordship, that the premises comprised in the said lot 1, and allotted to the said plaintiff as aforesaid, being accor- ding to the best of our estimation and judgment, of less value than the premises comprised in the said lot 2, allotted to the said defendants as aforesaid, by the sum of i211, we do hereby award, declare, and direct the said plaintiff to be entitled to receive from the said defendants the sum of £5. 10s. as an equivalent for the difference in value between the said lots ; and it appearing to us that the sum of .£114 hath been recently paid by Mr. Sheddon the late tenant of the said messuage or tenement No. 52 in Bedford Square aforesaid, (which is comprised in the said lot 1 of the said premises,) to the receiver of the said estates in question in this cause for dilapidations in respect of the CHANCERY. 805 Miscellaneous Orders. to be at liberty to examine witnesses upon oath, and take their de- positions in writing, and return the same with the said commission, and that the defendants be at Hberty to sue out such commission in case the plaintiffs do not sue out the same, and any of the parties are to be at liberty to apply to this Court as there shall be occasion. To report as to the Title to Lands, &fc., Sold. And it is ordered, that it be referred to James Stephen, Esq., one of the Masters of this Court, to see if a good title can be made by the said plaintiffs to the said estate and premises comprised in the contract or agreement for sale in the pleadings mentioned. — And he is also to examine and report when the title could be made according to the abstract delivered, with liberty to state any special circumstan- ces, &c. said messuage or tenement, we do hereby award and declare the said plaintiff, to whom the said messuage or tenement hath been by us allotted as aforesaid, to be entitled to receive the said sum of i6114 from the said receiver, the same having been in- cluded in our estimate of the value of the said messuage or tenement ; And we further humbly certify unto your lordship, that the foregoing allotments do comprehend and contain the whole of the estates and premises in question in this cause, and by the said commission hereunto annexed, directed to be by us divided and al- lotted, and that the said partitions and divisions are in due proportion to the respective rights and shares which the said several parties had in the said estates and premises, before and at the time of making such separation, division, and allotments, according to the power vested in us by the said commission, and the true intent and meaning thereof ; all which we humbly certify and submit to your lordship. In testimony where- of, we have hereunto set our hands and seals this 30th day of August, in the year of our Lord 1830. John White, (l. s.) Charles Day,' (l. s:) Robert Abrahams, (l. s.) Edward Mawley, (l. s.) APPENDIX I. RULES OF PRACTICE IN THE COURT IN BANK ADOPTED DECEMBER TERM, 1823. 1. When a question shall arise, in the Supreme Court of a County, which shall be reserved for decision at the session to be holden by all the Judges, at Columbus, a memorandum thereof shall be made on the minutes ; and an entry shall also be made that the suit is continued for consideration and de- cision at Columbus. 2. In all cases thus reserved and continued, the Court shall direct what papers on file shall be copied, and what original papers shall be sent to Co- lumbus, if either party make application for such direction ; but if no such application be made, the original papers shall be sent. 3. At any time after the first day of November, the clerk shall dehver the papers of the cause, sealed up, to the counsel of either party, who may first apply for the same ; taking his written receipt and agreement to deliver such papers to the Court, sitting at Columbus. 4. When judgment is rendered, or an order or decree made in a cause, by the Court, sitting at Columbus, the Clerk of the Supreme Court of Franklin County shall enter such judgment, order or decree, on the min- utes, and shall make a transcript thereof, under the seal of the Supreme Court ; which transcript, with the papers brought up in the cause, shall be delivered, sealed up, to the attorney of the party who shall apply for the same, taking his written receipt and agreement to deliver the whole to the Clerk of the Supreme Court, from whence the suit was brought. 5. The personal application of the counsel, for papers in the cause, shall not be necesary, if he send his written order, and receipt and agreement, required by the foregoing rules. 6. The Clerk of the Supreme Court, of the proper County, upon receiv- ing back the transcript and papers, shall deliver up the receipt given for the same, and shall immediately copy into his minutes of the proceedings of the Supreme Court, the transcript aforesaid ; and all subsequent proceedings in the cause shall bo the same as if the judgment, order or decree had been en- tered during the sitting of the Court in the proper County. 808 APPENDIX I. 7. Where the question reserved may have been argued in the proper County, the Court will, nevertheless, receive Avritten arguments from either party, in all cases where notice is given to the opposite party, that a written argument will be presented. 8. All arguments shall be opened and concluded in a regular and proper order. The counsel, having the affirmative, shall furnish to the opposite counsel a note of the points made and authorities cited, with an abstract of the argument ; after receiving which, a like note of points and authorities, with an abstract of the argument in answer, shall be furnished to the affirm- ative counsel. The counsel having the affirmative, shall furnish the oppo- site counsel with the notes and abstract aforesaid, at least ten days before the sitting of the Court, in all cases where the question shall have been reserved twenty days before the commencement of the said session. 9. Where, after the examination of written arguments, the Court are not satisfied, they will direct an argument at bar upon any particular point. In no other case shall an argument at bar be heard. 10. When any suit, continued for consideration and decision at Colum- bus, upon a question reserved, shall not be brought up to said Court by either party, it shall stand continued to the next Term of the Supreme Court, in the proper County, and shall be proceeded in at such next Term as other causes continued to that Term. 11. If the order made in any cause, by the Court at Columbus, be not final, but leave the cause to be further proceeded in before final judgment, it shall stand for such further proceedings to be had at the next Term in the proper County, and shall be prepared for trial in the same manner with other causes. 12. The Clerk's and Sheriff's fees for services performed in attendance upon the session of the Court at Columbus, shall be the same as for similar services performed at the sitting of the Court in the County, to be taxed in the same manner in the bill of costs, and shall be paid on delivery of the papers, by the person obtaining the same. RULE IN BANK. ADOPTED DECEMBER TERM, 1827. It is ordered, that, in all cases reserved for consideration and decision at the special session, more than thirty days before the first day of the session, it shall be the duty of the party holding the affirmative, to cause the record, exhibits, and depositions, if any, and a transcript of the points relied on, to be filed with the Clerk at Columbus, on the day preceding the first day of the session, on the penalty of the payment of all the costs that may have accrued from the commencement of the suit. RULE IN BANK. ADOPTED DECEMBER TERM, 1831. That in all cases where oral arguments are heard in this Court, the coun- sel, holding the affirmative, shall, before the arguments are commenced, APPENDIX I. 809 furnish each of the Judges with an abstract of the case, and a brief of the points and authorities relied upon, printed, or written in a legible hand ; and the opposing counsel shall furnish like briefs of the points and authorities relied upon on the negative. RULES IN BANK. ADOPTED DECEMBER TERM, 1833. Ordered, That when cases are reserved for the decision of the Court in. Bank, thirty days or more before the Term, it shall be the duty of the party holding the affirmative to file the papers with the Clerk in Bank, and pay his fees on or before the first day of the Term ; and, in those cases reserved within thirty days preceding the Term, it shall be the duty of the party holding the affirmative to file the papers with the Clerk, and pay his fees within the first eight days of the Term. In either case, the same party, after decision, shall transmit the papers to the Clerk of the Supreme Court of the proper County, before the first day of the next Term of the Supreme Court therein. Ordered, That a failure to comply with the foregoing rule shall subject the party to the payment of all the costs in the suit, and be enforced, by at- tachment, in the County where the cause is reserved. *^*In consequence of the great irregularity which prevails in the prepa- ration of causes, and in supplying briefs and abstracts under the rules of the Court, it is deemed necessary to notify the gentlemen of the bar, that, hereafter, the Court will require a strict compliance with the rules on that subject. RULE IN BANK. ADOPTED DECEMBER TERM, 1847. Ordered, by the Court, that before any case shall hereafter be docketed in this Court, the fees of the Clerk, which are hereby fixed at three dollars in each and every case docketed, shall be paid to him by the party holding the affirmative, on presenting the record or files, and the same shall be taxed in the bill of costs. RULES OF PRACTICE ON THE CIRCUIT. ADOPTED DECEMBER TERM, 1823. 1. In all Chancery cases set for hearing, upon bill and answer, or upon bill, answer, replication and testimony, the complainant's counsel shall pre- pare a brief, containing an abstract of the case, with the points and authori- ties relied on, to be presented to the Court on the first day of the Term, at the opening thereof; and if such brief be not prepared and presented, the cause may be either dismissed or continued at the costs of the complainant or his counsel, as the Court may direct. 102 810 APPENDIX I. 2. In all cases in Chancery, set for hearing, upon any plea or demurrer, the parly pleading or demurring shall prepare or present the brief; and if such brief be not prepared and presented as aforesaid, the plea or demurrer may be overruled at the costs of the counsel, for the party pleading or de- murring, and the cause shall be finally heard, or continued, at the discretion of the Court. 3. In all cases at law, to be determined by the Court, upon writ of error, demurrer, or plea of nul tiel record, the counsel, for the party holding the affirmative, shall prepare and present to the Court, on the first day of the Term, a brief, containing the points and authorities relied on. 4. Unless the law shall otherwise direct, all depositions may be opened in the Clerk's office, by the Clerk, at the request of either party, or his coun- sel. The Clerk shall indorse upon the depositions upon what day, and at whose request, they were opened, and they shall remain on file for the in- spection of either party. 5. No exceptions to depositions for other causes than the competency of the witness, or the competency or relevancy of the testimony, shall be heard, unless the same be made in writing, and notice thereof given to the opposite counsel, before the cause is called for trial. 6. No exceptions to depositions which were read on the trial, in the Court of Common Pleas, for other causes than the competency of the witness, or the competency or relevancy of the testimony, shall be heard in this Court, unless the same was made on trial in that Court, and noted in writing. 7. Where depositions are in Court, prior to the continuance of a cause, no exceptions shall be taken to such depositions, unless the same be filed with the depositions in the Clerk's office, or notice thereof in writing given to the adverse party or his counsel, within six months from such continu- ance, except for incompetency or irrelevancy. 8. A notice to take depositions on a day in Term time, shall not be con- sidered a reasonable notice. 9. In all cases, in which both parties have attended, and examined and cross examined a witness, they shall be considered as having a joint interest to the deposition, and either party shall be at liberty to use it on trial. 10. In the trial of causes, but one counsel on each side shall be permit- ted to examine a witness ; and no witness, once dismissed from the stand, shall again be called, until the other testimony is gone through, except at the request of a juror, or, by the order of the Court. 11. When application is made to the Court, or a Judge, in vacation, for the allowance of a writ of error, the party applying shall present to the Court, or Judge, a certified copy of the record, and an assignment of errors, which copy and assignment shall be returned to the Court with the writ of error. RULES IN BANK, ON THE CIRCUIT, AND FOR THE COMMON PLEAS. ADOPTED DECEMBER TERM, 1831. 1 . Ordered, That when application is made for admission to the Bar, the applicant shall furnish the Court with the certificate of his moral character and legal qualifications, and with written evidence that the person applying is twenty-one years of age, and a citizen of the United States. APPENDIX L 811 2. That no Attorney or Counsellor of this Court, or any Clerk of the Court, or Sheriff, shall be received as bail or security, in any cause in Court. 3. That, hereafter, the Clerks of the Courts of Common Pleas, and of the Supreme Court, shall in their cost books, minute, in separate columns, the costs occasioned by each party to the suit. 4. No papers or records filed in Court, or in the Clerk's office, shall be taken therefrom, unless by leave of the Court, and each party may have a copy of his adversaries' pleading, the expense of which may be taxed in the bill of costs. 5. No deposition, taken in a Chancery suit, shall be read at the hearing, unless taken at least ten days before the commencement of the Term, or, by consent, except those directed to be taken by the Court. 6. In all cases reserved for decision at the Court in Bank, the counsel holding the affirmative in the matter to be heard, shall, before the cause is called on, furnish each member of the Court with an abstract of the case, containing the substance of the pleadings, facts and documents on which the parties rely, and the points of law and facts intended to be presented in the argument ; which abstract shall be legibly written or printed. 7. In all cases where any person is admitted to defend in ejectment, in place of the casual ejector, he shall be required to confess the lease, entry, and ouster, to admit himself in possession of so much of the premises as he defends for, defining the extent and boundaries of that possession, and to plead not guilty, all which shall be reduced to writing and signed by coun- sel, whereupon the issue shall be considered as made up, without any charge of the declaration. 8. Where counsel claim the privilege of making oral arguments in any cause in Bank, they shall file, with the papers in the cause, notice of such intention, or the cause will be considered as submitted upon written argu- ments, 9. The last clause of the Ninth Rule, heretofore published, is rescinded. APPENDIX II, DR. WIGGLESWORTH'S TABLE Of Observations in New England, adopted by the Supreme Court of Massachusetts, as a rule of estimating the value of life estates ; Estabrook V. Hapgood, 10 Mass. Reports, 313. See, Ante. 686, note (a). Ages. a '> c o (2 1° ■ O ai rn o « " OJ CS 0) Ages. to a |> a o 2 a Decrement of life. Expectation of life in years and decimals. At birth 4893 1264 28.15 32 1886 38 1 3629 274 33 1848 38 2 3355 188 34 1810 38 3 3167 132 35 1772 35 28.22 4 3035 84 36 1737 35 5 2951 58 40.87 37 1702 35 6 2893 55 38 1667 35 7 2838 47 39 1632 35 8 2791 40 40 1597 35 26.04 9 2751 36 41 1562 35 10 2715 28 39.23 42 1527 35 11 2687 27 43 1492 35 12 2660 27 44 1457 34 13 2633 27 45 1423 27 23.92 14 2606 27 46 1396 27 15 2579 42 36.16 47 1369 27 16 2537 43 48 1342 27 17 2494 43 49 1315 27 18 2451 43 50 1288 27 21.16 19 2408 43 51 1261 27 20 2365 43 34.21 52 1234 27 21 2322 42 53 1207 27 22 2280 42 54 1180 27 23 2238 42 55 1153 27 18.35 24 2196 42 56 1126 27 25 2154 40 32.32 57 1099 27 26 2114 38 58 1072 27 27 2076 38 59 1045 27 28 2038 38 60 1018 27 15.43 29 2000 38 61 991 27 30 1962 38 30.24 62 964 27 31 1924 38 63 937 27 814 APPENDIX II. TABLE — Continued. Ages. to a •9 a o 1 o 2 o Cm o a e:— < u « a Expectation of life in years aid decimals 64 910 27 82 257 34 65 883 37 12.43 83 223 34 66 846 37 34 189 34 67 809 37 85 155 21 4.57 68 772 37 86 134 21 69 735 37 87 113 21 70 698 37 10.06 88 92 20 71 661 37 89 72 20 72 624 37 90 52 8 3.73 73 587 38 91 44 7 74 549 38 92 37 7 75 511 37 7.83 93 30 7 76 474 37 94 23 7 77 437 37 95 16 6 1.62 78 400 37 96 10 5 79 363 37 97 5 3 80 326 35 5.85 98 2 1 81 291 34 99 1 1 A TABLE showing the present value of an annuity of one dollar, from 1 t0S6 years, the calculation being made at the rate of 3 per cent, per annum. Yean . Dollars . Cents, &c. Years. Dollars. Cents, &c. Tears. Dollars Cents, &.C. 1 95 23 13 9 39 35 25 14 09 39 2 1 85 94 14 9 89 86 26 14 37 51 3 2 72 32 15 10 37 96 27 14 64 30 4 3 54 59 16 10 83 77 28 14 89 81 5 4 32 94 17 11 27 40 29 15 14 10 6 5 07 56 18 11 68 95 30 15 37 24 7 5 78 63 19 12 08 53 31 15 59 2« 8 6 46 32 20 12 46 22 32 15 80 26 9 7 10 78 21 12 82 11 33 16 00 25 10 7 72 17 22 13 16 30 34 16 19 29 11 8 30 64 23 13 48 85 35 16 37 41 12 8 86 32 24 13 79 86 36 16 54 66 The rate of five per cent, interest per annum is taken because the chief object here is to estimate the value of dower. And experience has shown that in estimating income from real estates, no more than 5 per cent, inter- est per annum can with justice be allowed. INDEX. ABATEMENT— Page. Plea of, in Assumpsit, ..... 108 in Debt, ..... 237 Persons made parties after Plea in, . . . .110 ACCORD AND SATISFACTION— Plea of, ...... 127 General Doctrines relating to, . . . 127, 138 ACTIONS— Several kinds of, . . . . . 9 How commenced, . . . . . .11 ADMINISTRATORS — See Executors and Administrators. Letters of Administration granted, .... 527 Form of Letters of Administration, . . . 529 Bond, ...... 530 Citation against, ..... 531 Order to complete real contracts, .... 542 Declarations By and Against, .... 100, 103 Sales of real estate by, ..... 584 AFFIDAVITS, at Law— For Warrant against Watercraft, ... 17 For Capias under the Act of 1831, . . . 23 By an Agent, .... 22 For Capias under non-imprisonment Acts, ... 23 Of Justification by Special Bail, ... 34 To Plea in Abatement, . . . . .109 To truth of General Issue, . . . . 120 For Writ of Replevin, ..... 277 Of Service of Declaration in Ejectment, . . 325, 334 In Foreign Attachment, .... 387, 393, 394 For judgment, &c., on award of arbitrators, . . 407 In Error coram nobis, ..... 457 Of service of notice to take depositions, . . 475 Subpoena for witnesses, . . . 476 816 INDEX. AFFIDAVITS, at lu^\v—Co7itinued. P«ge- For Continuance of cause, .... 498 Of service of notice to produce Books and Writings, . 501 Excusing the production of Books and Writings, . 502 Of service of notice on security for costs, . . . 508 to amerce SherifT, . . . 511 to amend in case of Misnomer . 514 Of Publication on petition to redeem from Tax sale, . 531 Of Alien's Intention, . . . . . 534 Of Alien's moral character, .... 535 Of Pubhcation in Partition, .... 562 Of personal service in same, .... 562 For writ of Habeas Corpus, .... 570 ad testificandum, . . . 576 In Chancery — For Injunction, ...... 626 For a Ne Exeat, ..... 600 For examination of witnesses de bene esse . . . 600 To be annexed to Bill against Unknown Heirs, . 601 Bill of Interpleader, . . .600 That complainant has not deeds, &c., . . 599 That complainant had deeds, &c., but has lost them, . 599 Of service of notice of application for injunction, . 624 Excusing such service, ..... 624 Of service of notice to commit for contempt, . 641 writ of injunction, . . . .641 subpoena, .... 642 For injunction to restrain the infringement of Copyright, . 682 Patent Right 686 Of Publication of notice to non-residents in Chancery, 697, 698 To be annexed to Bill of Review on discovery of new matter, 765 ALIEN — See Naturalization. AMENDMENTS— Nature of, &c. ..... 512 In Ejectment, . . . . . • 345 In Error, ...... 445 Motions to amend, ..... 512 Of Bills in Chancery, .... 601 Of Answers in Chancery, . . . 732, 735 AMERCEMENT— Of Sheriff for not bringing in body on Capias, . 30 for not executing process, &c., . . 509 INDEX. 817 ANSWER IN CHANCERY— Page. Form of Commencement, ..... 732 Conclusion, ..... 734 Jurat, ...... 736 Insisting on the same benefit of the Statute of Frauds as if it had been pleaded, ..... 737 Answer and Disclaimer, .... 737 Exceptions to Answer, ..... 738 Amendment, ...... 732, 735 APPEAL, AT Law— To Court of Common Pleas, .... 416 Appeal quashed, ..... 418 Recognizance changed, . . . . .419 Transcript filed by appellee and judgment in his favor, . 419 appeal dismissed and cause remanded, 420 Judgment of non-suit and final judgment in favor of appellee, 420 In Chancery, ..... 758 APPEARANCE OF DEFENDANT— Actual and constructive, .... 35 When it cures errors and defects in process, . . 35 In Chancery, ...... 693 ARBITRATION— Plea of Arbitrament and Award, . . . 131 Rules relating to, .... 131, 399 Reference of cases pending in Court, . . 399, 400 Submission by written agreement, . . . 401 by arbitration bonds, . . . 403 Election of Umpire, ..... 403 Appointment of arbitrators, .... 403 Award upon reference of case pending in Court, . 403, 404 Award by two arbitrators on submission by arbitration bond, 405 Judgments on awards, ..... 407, 408 Affidavit for judgment, attachment, sequestration, &c., . 407 ARREST OF JUDGMENT— -See Motions. ASSUMPSIT— How commenced, . . . . . 11 Praecipe for Summons in, 12; after Plea in Abatement, . 110 Writ of Summons in, 13 ; after Plea in Abatement, . 110 Service and return of Summons, . . , . 16 Praecipe for^Warrant against Watercraft, . • 17 Form of Warrant against Watercraft, ... 18 Proceedings by Proclamation in, . . _ . 18 103 818 INDEX. ASSUMPSIT— Continued. Capias ad respondendum, when issued Praecipe for Capias under the Act of 1831, under the non-imprisonment Acts, Affidavit for Capias under the Act of 1831, under the non-imprisonment Acts, Writ of Capias ad respondendum. Bail Bond to the Sheriff, .... Proceedings against the Sheriff, Proceedings against Bail, Defendant's Appearance, Declarations in — Forms of Commencemem, Common Counts, ..... Indebitatus Counts, — For Board and Lodging, Crops sold to defendant, Fixtures, .... Good Will of a Business, Hire of Goods, Horsemeat, Use and Occupation, Rent of Lodgmgs, Servants' Wages, Necessaries, By Schoolmaster for Tuition, &c.. By Railroad Company for Tonnage, Warehouse Room, Wharfage, By an Agent for Commissions, For Agistment, Attorney's Fees, On an Award, On an Umpirage, duantum Meruit Counts — For Rent, .... Use and Occupation, Horse feed, stabling, &c., . Hire of Horses, By Physicians for Medicines, &c. . By Attorney, for Fees, &c., Page. 20 21 23 22 23 25 27 28 31 35 36 36 40 40 40 41 40 41 41 41 41 42 42 42 42 42 43 42 43 43 44 44 44 46 45 45 45 INDEX. 819 ASSUMPSIT— Con^mwe^/. Page. Declarations — Continued. On Promissory Notes — Payee v. Maker, . . . . 46 Indorsee v. Maker, .... 48 Partners v. Maker, ... 48 Payee v. Partners, .... 49 Indorsee v. Indorser, ... 49 Indorsee v. Executor^of Maker, . . 50 Indorsee v. Payee, or other Indorser, . 50 Payee v. Maker, where the Note, in the body of it, IS made payable at a particular place, . 51 Payee v. Maker, where the place is mentioned only at the Foot or in the Margin, . . 51 Payee v. Maker, where the Note is payable on de- mand, or after Notice, ... 52 Payee v. Maker, of a Note payable by Installments when the whole sum is due, ... 52 Payee v. Maker, of a Note payable by Installments when part only of the Installments are due, 52 Bearer v. Maker, on a Note payable to E. F., or Bearer, • • • . . 52 Indorsee v. Payee, being Indorser who had not due Notice of Dishonor, but had no effects with the Maker, ..... 53 Payee v. Maker, on a Note payable in Trade . 54 Payee v. Maker, on a Note payable in Trade, the price being agreed upon, ... 54 Executor or Administrator of Payee v. Maker, 54 Payee v. Executor or Administrator of Maker, 55, 56 Surviving Payee v. Maker, . . .56 Husband and Wife v. Maker, on Note payable to Wife before Marriage, • « • . 57 On Bills of Exchange — Drawer, being also Payee v. Acceptor, . 57 Drawer, not being Payee v. Acceptor, . 58 Indorsee v. Acceptor. ... 53 Payee v. Acceptor, .... 58 Payee on non-acceptance v. Drawer, . 59 Indorsee on non-acceptance v. Drawer,. . 59 Indorsee on non-acceptance v. Indorser, . 60 Indorsee on non-acceptance, v. Payee, . 60 820 INDEX. ASSUMPSIT— Confmwcrf. Page- Declarations — On Bills of Exchange — Continued. Indorsee v. Drawer — Default Paj^ment by Drawee, CI Indorsee v. Indorser — Default Payment by Drawee, 61 Indorsee v. Drawee, or Indorser on bill payable after sight, ..... 62 Indorsee v. Acceptor, on bill payable at a Banker's, and not elsewhere, ... 62 Indorsee v. Drawer, on bill payable at a Banker's, and not elsewhere. ... 63 Drawer v. Acceptor, on bill accepted payable on a contingency, .... 63 Indorsee v. Drawer, where Notice of dishonor was not given, but Drawer had no effects in the Drawee's hands, . . . .63 Indorsee v. Drawer, where Drawee was dead, . 64 Indorsee v. Drawer, where the defendant dispensed with Presentment, . . . .65 Indorsee v. Drawer, on bill drawn and accepted, pay- able at a particular place, . . .65 Executor of Drawer v. Acceptor, laying the promise to the testator, ... .66 * Executor of Drawer v. Acceptor, laying promises to the plaintiff' as Executor, . . . 66 Administrator of Drawer v. Accceptor, . 67 Drawer v. Executor or Administrator of Acceptor, 67 Indorsee of Executor of Drawer v. Acceptor, . 68 Indorsee of Administrator of Drawer v. Acceptor, 68 Commissioner of Insolvents v. Acceptor, Insolvent Debtor being Drawer, ... 69 Surviving Drawer V. Acceptor. . . 69 Husband and Wife on a bill drawn by and payable to the Wife before marriage v. Acceptor, . 70 Indorsee v. Husband and Wife, on a bill accepted by her before marriage, ... 70 Drawer v. Acceptor of a Foreign Bill, . 71 Indorsee v. Indorser on Foreign Bill, . 72 Indorsee v. Acceptor Supra Protest, . . 73 On Bank Checks — Payeee v. Drawer, ... 74 Bearer, not being Payee, v. Drawer, . . 74 INDEX. 821 ASSUMPSIT— Co/i^mwcf/. Page. Declarations — Continued. In Special Cases — For refusing to deliver goods, . . 74, 75 On an award by parol Submission, . . 75 On a promise to take back a horse if unsound, 76 On the sale of a horse with warranty, . 76, 77 • Against a Carrier for gross neglect, . . 78 Against Stage Coach proprietors, . . 78 By School Master on a Subscription Paper, . 80 On a Subscription Paper for making a Road, 81 Township Trustees v. Husband, for advances to Wife as a Pauper, .... 83 Treasurer of another State upon a judgment on recog- nizance, .... 85 On a Letter of Credit, . . .86 Against Watercraft by Name, . . 89 Guardian of an Insane Person v. Indorsee of a Prom- isspry Note, .... 90 On a Warranty of Chattels, . . 91 By a Bank v. Drawers or Indorsers of a Note, Bill, &c., jointly, .... 92 The like, by a Bank of another State, . 93 Against an Agent employed to sell goods, for not obeying the orders of his Principal, . 93 On defendant's promise to pay the debt of a third person in consideration that plaintiff would not sue him, ..... 94 Against Hirer of goods for Carelessness, . 95 On a conditional promise to pay, when able, a debt barred by the Statute of Limitations, . 95 On a breach of promise of Marriage, . . 96 For a Reward offered for the Discovery of an Of- fender, .... 97 On a promise to return or pay, by a certain time, for a Horse taken on trial, ... 99 On the promise of a Buyer of Goods to pay for them by a good Bill of Exchange, . . 99 By and Against Administrators — By Administrator on promises to Intestate, . 100 By Administrators, laying a debt to the Intestate and a promise to the plaintiff, , . 100 823 INDEX. ASSUMPSIT— Continued. ^^se- Declarations — By and against Administrators — Continued. By an Administrator on a cause of Action arising af- ter Intestate's death, . . . 101 Against an Administrator on promises by Intestate, 101 Against an Administrator laying a debt from the In- testate, and a promise by the Administrator, 102 Against an Administrator on a causeof Action arising after intestate's death, . - :^"; :; '.^.-. 102 By Husband and Wife, Admminisfratrix, . 103 By and Against Executors — By Executor on promises to pay Testator, . 103 By Executor on a cause of Action arising after Tes- tator's death, .... 104 By Executor for use and Occupation, . 104 By Executors to recover the value of Work, &c., done partly by Testator, and partly by Executor, 105 Against an Executor on a cause of Action arising after Testator's death, . . . 105 By and Against Husband and Wife — By Husband and Wife for goods sold by the Wife before marriage, . . , 106 Against Husband and Wife for goods sold to her be- fore marriage, .... 106 By and Against Partners — By a Surviving Partner for goods sold by the late Firm, . . . . . 107 J Against a Surviving Partner, . . . 107 Pleas in Abatement — W^ant of Parties Plaintiffs, . . 108 Want of Parties Defendants, . . .109 Misnomer, . . . ' . 112 Another action pending, . . .113 Coverture of Plaintiff, . . . 115 Coverture of Defendant, . . . 115 No such person, in esse, . . . 116 Pleas in Bar — General Issue, Non-Assumpsit, and Notice, . 117 Actio non accrevit infra sex annos, . . 120 Tender, ..... 125 ■ Accord and Satisfaction, .... 127 Infancy, ..... 128 INDEX. 833 ASSUMPSIT— Co?ifmMe(/. Pago. Pleas in Bar — Continued. Puis darrein continuance, . . . .130 That defendant is not administrator, . . . 131 Arbitrament and Award, . . . .131 Bill, &c. altered by plaintiff, , . . 133 That Note was made to be discounted at Bank and after refusal was indorsed to plaintiff with notice, . . 134 Defendant's coverture when contract was made, . 135 That the agreement or promise was obtained by fraud, 136 That the agreement was not to be performed within a year and is not in writing, . . . . 136 Prior judgment recovered for the same debt, . . 137 Payment before action brought, . . . 138 Payment after action brought, debt and costs, . . 139 Release, ...... 140 Usury, ...... 141 Bankruptcy, ..... 143 RePLIC AT IONS— To Pleas in Abatement — That defendant alone promised, . . .111 That the party is known as well by the one name as the other, . . . . . 113 Nul tiel record, . . . . . 1 14 New assignment that the action is different, . 115 That defendant is not married, . . ,116 To Pleas in Bar — That the plaintiff was out of the State and sued within six years after his return, . . . 124 That the cause of action accrued within six years, . 125 No Tender made, .... 126 Subsequent Request and Refusal, . . . 126 Did not accept — to Plea of Accord and Satisfaction, 127 Denying Infancy, .... 128 Necessaries, . . . , .129 Partly for Necessaries, and Nolle Prosequi as to the re- mainder, . . . . . 129 Promise confirmed after full age, . . . 130 No award made, .... 132 Denial of Marriage, . . . .135 Denial of Fraud in procuring agreement, . 136 Nul tiel record, , . . .138 Denial of Release, .... 140 834 INDEX. ASSJjyiPSlT— Continued. Page. Rejoinders — That Aclion was not commenced within six years after plaintiff's return into the State, 124 Demurrers — To Plea in Abatement of writ, . . 145 Declarations, ..... 146 Pleas in Bar, . . . . . 147 To Evidence, by the defendant, 147 by the plaintiff, . 148 Replication and Rejoinder, 149 For want of Profert, .... . 149 Verdicts — For plaintiff, .... 153 For defendant, .... . 159 Special, ..... 162 Judgments — For plaintiff, .... . 168 For defendant, ..... 176 Complete Record, .... . 182 Demurrers — In Chancery, ^ . 698 ATTACHMENT— /'orezg-n. Nature of remedy and when it lies. . 386 Prsecipe and Affidavit, .... 387 Writ, . 388 Inventory and appraisement. 389 Sheriff's return, .... . 389 Bond for redelivery of property, 389 Advertisement, .... . 390 Affidavit of publication, .... 391 Order for sale of perishable property. . 391 Default at first term, . . . . 391 at second term. . 392 Final judgment, ..... 392 Proceedings against property in another county. . 393 Affidavit for writ to another county. 393 Proceedings against Garnishee, by notice. . 394 Affidavit, ..... 394 Notice to Garnishee, .... . 394 Sheriff's return, .... 395 Interrogatories, .... . 395 INDEX. 825 ATTACHMENT— Foreign— Conti7iued. Answer to interrogatories, Scire Facias against Garnishee, Proceedings against Garnishee, by Capias, Prsecipe and Affidavit for Capias, ATTACHMENT— /br Contempt of Court. Rule for, .... For breach of injunction, ATTORNEYS AT LAW— How admitted, From another State, Powers and LiabiHties of, Apphcant's Certificate for Examination, Certificate from another State, Order for Admission, Certificate of Admission, AUCTIONEER— Licensed to sell. Pag«. 395 396 397 397 543 644 7 8 7 9 9 542 542 538 B. BAIL— Bail Bond to the Sheriff, Recognizance of Special Bail, Bail Piece, Exceptions to Special Bail, Notice of Exception, Notice of Justification, Affidavit of Justification, Allowance of Bail in open Court, Before a Clerk, BANKRUPTCY— Plea of, BANK CHECKS— Declarations upon, BILL OF PARTICULARS— In proceeding against Water Craft, Of demand and set-off, Form of, . . . BILLS OF EXCHANGE— Declarations upon, 27 32 32 33 33 34 34 34 35 143 74 17 409 410 57 104 Page. . 412 . 414 . 415 on of Court, 415 790 . 586 . 587 ainants, 587 . 588 . 591 . 591 . 592 , , 592 826 ^ INDEX. BILLS OF EXCEPTION— For refusing a nonsuit, Arresting testimony from jury. Refusing new trial for misdirect On trial of issues out of Chancery, BILLS IN CHANCERY— Several kinds of, Address, Names and Residence of the Complainants, Statement of the Case, Averment of Conspiracy, . The Charging Part, Averment of Jurisdiction, . Interrogatories, Prayer for Rehef ; for Process ; Publication of Notice, &c. 593 Affidavits to accompany Bills in certain cases, . 598 Filing the Bill, .... 620, 692 Amendment of Bill, .... 601 Parties — Who may sue, .... 604 Who may be sued, .... 607 Who are necessary parties, . . . 610 Objections for want of parties and misjoinder, How taken, ..... 616 Forms of Bills — By Heirs of Vendee against Vendor to set aside con- veyance of real estate for Fraud and to compel repayment of the purchase money, . . 586 By equitable owner of real estate against residents — non residents, unknown heirs, and devisees — set- ting up loss of unrecorded deeds and praying injunction to stay proceedings in ejectment, and a surrender of the legal title . . 623 To enjoin the negotiation of a Bill of^-Exchange , 647 By Mortgagee against Mortgagor tg foreclose, . 648 By first Mortgagee against Mortgagor, subsequent Mortgagees and subsequent creditors, for sale of Mortgaged premises, . . . 651 By Heir of Mortgagor against Mortgagee to redeem, 653 By Heir of Mortgagor against Mortgagee to set aside a decree of foreclosure fraudulently obtained and for a redemption, .... 665 INDEX. 827 BILLS IN CHANCERY— Forms of B11.1.S— Continued. Page. By first Vendee against Vendor and a subsequent purchaser for the specific performance of an agreement charging subsequent purchaser with notice, ..... 657 For an account of copartnership deaHngs, a dissolution of the partnership, the appointment of a receiver, and an Injunction, .... 660 Creditor's Bill to reach equitable assetts, . . 662 By a creditor holding a subsequent lien on one of two funds, against another creditor holding a prior lien on both, to compel the latter to exhaust first his exclusive lien, . . . . 665 By one creditor in behalf of himself and others to set aside a fraudulent conveyance made by the debtor to his children, . . . 667 For Partitition of Real Estate,' . . . 670 By Heir at law to set aside a Will, . . 673 To restrain the infringement of a Copyright, . 680 683 686 689 690 754 751 752 759 759 Patent Right, For Dower, ..... Bills of Interpleader, . . . Discovery, .... Revivor, .... Supplemental Bills, .... Cross Bills, ..... Bills of Review, ..... On Errors in Law, On Discovery of New Matter, . . . 762 BONDS— When and How discharged, &c., . . . 194 Bail Bond to Sheriff, ..... 27 Replevin Bond, ..... 278 For redelivery of property in foreign attachment, . . 389 Arbitration Bonds, ..... 402 On Writ of Error, '. . . . .439 Certiorari, .... 466 Administration Bond, ..... 530 Guardian's Bond, ..... 534 On removal of Case to the Circuit Court of United States, 556 Injunction Bond, ..... 626 BOOKS AND WRITINGS, Production of— ^ce Motions. Before a Master in Chancery, .... 747, 778 828 INDEX. C. CAPIAS AD RESPONDENDUM— Page- How and when issued, . . . . 20, 22 Praecipe for, under the Act of 1831, ... 21 Affidavit for, under the Act of 1831, . . . 22 Praecipe for, under the non-imprisonment Acts, . . 23 Affidavit for, under the non-imprisonment Acts, . 23 Writ of Capias ad respondendum in assumpsit, 25 ; in debt, 191 ; in covenant, 258 ; in case, 287; in foreign attach- ment, ...... 397 Testatum Capias, . . . . .26 capias ad satisfaciendum— . . . 551 case- How commenced, .... 286 Praecipe for Summons, . . . 286 Capias, . . . .287 Writ of Summons, . . . . 286 Capias, . . . .287 Declarations — Against Carrier for not dehvering goods, . 288 For immoderately riding a horse, . . 289 false warranty of a horse, . . 289 charging plaintiff with perjury, - . . 289 slander of plaintiff in his profession, . 290 in his trade or occupation, . 290 Libel, . . . . . 291 debauching plaintiff's daughter and servant, . 291 criminal conversation, . . .' ' 292 Against Judges of Election for refusing vote, . 292 Against proprietor of mill dam for overflowing land, 294 Pleas in Bar — Not guilty, . . . . . 295 Verdicts and Judgments — For plaintiff on issue of Not Guilty, . . 296 For defendant on issue of Not Guilty, . 296 CERTIORARI—. 460 On suggestion of diminution in Error, . . 441,442 From Supreme Court to Common Pleas, . . 462 Order of allowance by Court, 462 ; by Single Judge, 462 Form of Writ and Return, . . . 463 Citation, ..... 463 Order of Common Pleas reversed, 464 ; affirmed, 464 INDEX. 829 CERTIORARI - - Continued. Page. From Common Pleas to Justices of the Peace, . 464 ; ;• Order of Allowance by Single Judge, 465; by the Court, 465 Bond, ...... 466 Writ, 466 ; Notice, . , . .467 Judgment of Affirmance, . . . 468 The like, with an award of Execution on Justice's judg= ment, ..... -5 468 Judgment of Reversal, . , . . 469 To County Commissioners, .... 469 Writ, ...... 469 Return, ...... 470 CIRCUIT COURT OF THE UNITED STATES— Depositions, how taken ex parte, . . 487 on Notice, . . . 489 by Dedimus Potestatem, 491 by Letters Rogatory, . 486 Removal of Cases from State Court, to Circuit Court, by Petitition, [_See Motions.] . . . 554 to Supreme Court, by Writ of Error, . 557 CITATION— In Error, .... 437,458 To Supreme Court United States, . . 559 Against Administrators, Guardians, «S;c, . . 531 CLERKS OF court- How appointed, .... 6 How removed, • .... 6 Judge's Certificate of qualification, . . 6 Order of Apointment, .... 6 When to issue process, . . .13, 13 May allow Special Bail, .... 35 CLERK'S ENTRIES— ; : Miscellaneous— " At the Commencement of a Term, . . 524 Grand Jury Sworn, .... 524 The like, with Talesmen added, . . 525 Indictments presented by Grand Jury, . . 525 Will proved, ..... 525 The like, and administration granted, with the Will an- nexed, ...... 527 The like, on Commission, . . . 527 Will from another State ordered to be recorded, . 529 830 INDEX. CLERK'S ENTRIES— Miscellaneous— ConfmMC^Vr-V-- Widow appointed Administratrix, ' . Where Widow Declines, Further time allowed to Administrator Citation against Administrator or Guardian, Accounts of Administrator referred to Master, Final Settlement of Administrator's account. Appointment of guardian on certificate of Justice The like, on orphan appearing in Court, The like, to orphans under the age of choosing, Alien's declaration, .... Certificate of naturalization granted, The like, where AUen arrived in the U. States under Insolvent's certificate granted, on Default, The Hke, on Hearing, Clergyman licensed to marry, License granted to auctioneer. Tavern License granted, refused, Commissioners appointed to examine road. Fixing number of Justices of Peace for new townsh New appraisement ordered, Costs retaxed. Recognizance forfeited. Rule for security for costs. Juror withdrawn and cause continued, Defendant surrendered by special bail, Jury sworn and adjourned. Satisfaction of judgment. Rule for Attachment for contempt of Court, For Administrator to complete real contract. Admission of an Attorney and Solicitor, Order of removal of Case from State Court to C Court of the U. States, Order of Partition, Partition confirmed, Election by one of the parties confirmed. Order of sale in Partition, SherifTs sale in Partition confirmed, Appointment of Clerk of Court, Order for security for costs. Order for Proclamation, 529 530 531 531 532 532 533 534 534 534 536 18, 537 537 537 538 538 538 539 539 ., 539 539 540 540 540 541 541 541 541 542 542 542 ircuit 556 562 565 566 567 568 6 14 19 INDEX. 831 CLERK'S ENTRIES — Miscellaneous — Continued. Page. MotioA for Rule on Sheriff to bring in the body, 28 Rule absolute, .... 29 • Motion to amerce for not bringing in the body, 30 Judgment of Amercement for not bringing in the body, 30 Exception to Special Bail, ... 33 Allowance of Bail in open Court, . . 34 Before Clerk, ... 35 Order for leave to defend in Ejectment, . 327 Order where plaintiff elects topay for improvements, &c. under the Occupying Claimant Law, . 354 Where the plamtiff, in like case, elects to take the value and convey the lands, . . 354 Order for sale of perishable property in Attachment, 391 for referring case to arbitrators, . . 399, 400 reserving a case for Court in Bank, . . 412 quashing an Appeal, . . . 419 for change of Recognizance, . . 419 Allowance of Certiorari on suggestion of diminution in Error, ..... 442 Entry of Mandate from Supreme Court in Error, 451 Allowance of Error by Court in Bank, . . 454 Allowance of Certiorari by Supreme Court, . 462 by Court of Common Pleas, 465 Death of party suggested and order for citation, 470, 471 Order of nolle prosequi, to the whole declaration, 472 to one or more counts, 472 as to some of several defendants, 473 Order for Dedimus Potestatem, Motion for Continuance, Continuance granted, Motion for nonsuit. Order to produce Books and Writings, Verdict set aside and new trial granted, Motion in arrest overruled and judgment, Judgment against security for costs. Judgment of amercement against Sheriff, Order to amend. Motion to amend in case of Misnomer, Form of Order therein. Order for change of Venue, 479 496 498 499 502 504 505 508 511 513 515 515 516 832 INDEX. CLERK'S ENTRIES— Miscellaneous— Con/mMCfZ. Page- The like for want of disinterested judges, . 516 Confirmation of Sheriff's sale, . . . 517 Order for redemption from Tax sale, . . 522 Allowance of Habeas Corpus, . . . 571 Discharge on Habeas Corpus, . . 574 Order remanding prisoner on Habeas Corpus, . 575 Verdicts — In Assumpsit — For Plaintiff, .... 153-158 Defendant, .... 159-161 Special, . . . . .162 Upon plea in abatement, . . . 110,111 In Debt — For Plaintiff, , . . . 247, 248 Defendant, . . . . 249-253 In Covenant — . . . " . . 266 In Detinue, ..... 273 In Replevin— . . . . 282 In Case— ..... 296 In Trover— . . . . . 304 In Trespass — . . . . . 321 In Ejectment— .... 333,341 In Scire Facias — .... 382 Judgments — In Assumpsit — For Plaintiff, .... 168-174 On demurrer to evidence, . . 176, 180 For Defendant, . . . 176, 180 In special cases, . . . 180, 181,182 In Debt — For Plaintiff, . . . 250-255 Defendant, .... 255 In Covenant, ..... 266 In Replevin, ..... 282 In Case, ..... 296 In Trover, . . . . . 304 In Trespass, • . . . . 321 In Ejectment, .... 332 In Scire Facias, .... 382 Under occupying claimant Law, . . 353 In Foreign Attachment, . . 391,392 INDEX. 833 CLERK'S ENTRIES— Judgments— Con^mwef/. On Award of Arbitrators, On Appeal from Justice of Peace, In Error, ..... In Certiorari, in Supreme Court, in Common Pleas, Against Security for costs. Of Amercement against Sheriff, In Chancery— Allowance of Injunction, Order of Commitment for Contempt, Order for an Attachment for Contempt, Order assigning Dower, Assignment of dower confirmed and writ of seizin dered, .... Order of revival, .... Leave to file Bill of Review, See Decrees in Chancery. CLERK'S CERTIFICATES— To complete record, Of reservation of Case to Court in Bank, To Transcript on Error, To Depositions, For change of Venue, Of Alien's declaration of Intention, Of Naturalization, Of Attorney's admission to the Bar, CLERGYMAN licensed to marry. Form of License, commission- To take Depositions in State Court, in U. S. Court, "^To prove execution of a Will, For partition of real estate, COMMOM CARRIERS, . . COMMON COUNTS— in Assumpsit, CONTExMPT OF COURT— ^-ee Attachment— Injunctions. CONTINUANCE— .S-ee Motions. COPYRIGHT— ^ee Injunctions. Page. 407, 408 419, 420 446 464 468 508 511 625 642 644 687 or- 688 756 765 186 412 435 478 517 535 535 542 538 538 479 491 528 800 288 36 105 834 INDEX. COSTS— f«ge- Rule of Court for, ..... 14 Retaxed, . . . . . . 540 Form of Security for, . . . .14, 540 Rule for, ...... 540 Judgment against Security, .... 508 COURTS— Justices of the Peace, ..... 1 Common Pleas, ..... 2 Superior Courts, ..... 4 Supreme Court, ..... 4 Court in Bank, ...... 5 covenant- How commenced, . . . . 256 Praecipe for Summons, . ... . 2.56 For Capias, . . . 257 Writ of Summons, . ... . 257 Capias, . . . . 258 Declarations — Lessor against Lessee for rent upon indenture, . 258 " upon articles of agreement, 259 Administratrix of Lessor against Lessee for rent, 262 Grantee against Grantor on covenants of seizin, warran- ty, &c. . . . . . 260 Assignee of Grantor against Grantee on like covenants, 261 Pleas in Abatement — ^ Judgment of Revivor, on default, . . 384 The like, against executor or administrator, . 384 Judgment by default, making defendants not served with process parties to original judgment, . 384 The like, on suggestion of further breaches after judg- ment on penal bond, . . ' . ' . 385 The like, subjecting real estate to payment of justice's judgment, . . . . . 385 Judgment for defendant, .... 385 SELECT WRITS— Distringas, ...... 582 Subpoena for Witnesses, .... 582 Venire for Grand Jurors, ..... 583 Petit Jurors, . . . " * . 583 SET-OFF— Notice of, . . . . . .117 SHERIFF— Proceedings against for not returning Capias, . ■ 28 Judgment of Amercement for not bringing in body, . 30 for not returning process, &c., . 511 Sheriff"'s sale confirmed, .... 517 SUBPCENA— Foji Witnesses, .... 582 Duces tecum, '-•.,. ^ ' • • • ^^^ In Chancery, . f - • . • 692 SUPERSEDEAS, in Error, . . . • .438 SUPPLEMENTAL BILLS— 6'ee Bills in Chancery. SURVEY, ORDER FOR IN EJECTMENT, . . 331, 339 INDEX. 861 T. Page. TAVERN- License granteci, ..... 538 refused, ..... 539 TAX SALES— 6'ee Motions. Petition to redeem from, .... 519 TENDER— Plea in bar of, ..... 125 General Doctrines relating to, . . . 125 trespass- How commenced, .... 305 Praecipe for Summon?, . . . 306 for Capias, .... 306 Writ of Summons, .... 306 Capias, ..... 307 Declarations — Assault and Battery, .... 307, 308 False imprisonment, .... 309 For debauching plaintiff's daughter, . . 311 For taking and carrying away goods, . . 311 For cutting and carrying away trees, . . 311 Trespass qiiare clausum fregit, . . 312 in dwelling house and seizing goods therein, 313 For mesne profits after recovery in Ejectment, . 314 Pleas in Bar— Not Guilty, .... 315 Son assault demesne, . . . 316 Property in defendant, .... 317 License, ..... 317 Liberum tenementum, . . . .318 New Assignment, .... 320 Justification by Schoolmaster, . . . 320 Replications — Denying defendant's property, . . 317 De injuria sua propria, . . . 318 Verdicts and Judgments — For plaintiff on issue of Not Guilty. . . 321 For defendant on issue of Not Guilty, . 321 TRIAL— General Rules relating to, . . . . 150 Decree for trial of issues out of Chancery, . 785, 786 863 INDEX. i.-- TROVER— Page. How commenced, .... 297 Praecipe for Summons, . . ,. . 298 for Capias, • . . ' . 299 Writ of Summons, . . . . 298 Capias, ..... 299 Declarations — Common Counts for cattle, bonds, &c., . . . 299 By administrators for property belonging to intestate, . 301 By executor or administrator for convei^toiT hi testa- tor's life time, . ... . 301 Pleas in Bar — Not Guilty, . . . ■ . • . 302 Lien for work done in respect of thie^ofidg, ' . 303 Verdicts and Judgments — \:^r:^V':' . For plaintiff on plea of Not Guilty; ' .'■il' y.t ■ -:: . 304' For defendant on plea of Not Guilty, ' V • . 304 U. USURY— Plea of, . . . . . • 141 General Rules relating to, . . . 141 VENDITIONI EXPONAS— . . ~ • • 550 rhe like with a Fieri Facias clause, • • 550 VENDOR AND PURCHASER — ^.^ What covenants purchaser entitled to, &c. • . 256 VENIRE FACIAS— *'"?:--' ■ - '-* For Grand Jurors, . • • • . ■ ^ 583 Petit Jurors, . • • . • • VENUE— •■'^•'* Order for change of, . • • •. •- - VERDICTS — In Assumpsit — General Rules relating to, . • > • i-* 151 For Plaintiff— ■'*'' On non-Assumpsit, . • • • Against an Administrator, . When several issues are found for plaintiff, . • 155 On a plea of Tender as to part, and non-Assumpsit is to residue, . ^ • 5S3 516 153 154 156 INDEX. 863 VERDICTS — In Assumpsit — Continued. Page. For V\siin\.\S— -Continued. Wheu one issue is found for the plaintiff and another for defendant . . . . . 157 On Default, . . . . .157 Default at one term and damages assessed at another, 158 Against two defendants, when one pleads non-Assumpsit, and the other is defaulted, . . . 158 On Demurrer overruled, . . . 159 For Defertdaht — On non-suit, ..... 1.(^9 On non-Assumpsit, .... 159 For one defendant on non-Assumpsit, where another has let judgment go by default, . . .160 On non-Assumpsit by Intestate, . . \qq On several issues, . . . . .160 Whien one issue is found for the plaintiff and another for the defendant, .... 161 Balance found in favor of defendant on notice of set-off, 161 Where a juror is withdrawn, . . . jgj Special Verdicts — . . . . .162 Verdict jipon Plea in Abatement, . . 110 111 In Debt — ^^i. For Plaintiff— - ' On Nil Debet, .... 247 "*^n Non est factum, . . . 248 On Solvit ad diem, . . ^ 248 For Defendant — f On Nil Debet, .... 249 On Non est factum, . . . 249 On Notice of set off; . . . 249 On breaches assigned under the Statute, 253 In Covenant — ..... 266 In Replevin — . . . . ^ ^ 282 In Case — ..... 2Q6 In Trover — ...... 304 In Trespass — . . , ^ ^ ooi In Ejectment— .... 333,341 In Scire Facias — . . . ^ ^ 002 864 INDEX. W. , -. Page. WARRANT— Of Attorney to confess judgment, . . . 1T5 Form of against Waterc raft, . ."<**: . . " 1 WILLS— Proof of in open Court, .... 525 on Commission, .... 527 Order for Commission, ...... 528- Form of Commission, . . . . ■ . 528 Form of Letters Testamentary, . . . 526 Bill in Chancery to set aside Will, . . . 673 Decree for trial of at Law, . . -■■■'. .vj .^ 785 WRITS AT Law — See Process — Select Writs, .V-''^~ In Chancery — -^ */^^.'?m^- ' Writs of Injunction, . - i^'"'?'^^^' • ^^^ Commitment for contempt of Court, 17^*-^'* . 643 Attachment for contempt of Court, . . 645 To assign Dower, . . . . 687 Writ of seizin, . . .' . , . 689 Subpcena, *fHI^ ^^^ Assistance for delivery of pidi^ession, . 791 i "^A % '"^»'S*^ LAWLIBRAKY UNIVERSITY OF CALIFORNIA ■ urn ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 856 712 5 •■•% enii