Volume 2 — D. Chipman's Vermont Reports

The plaintiff and the defendant were both heirs at law of the estate of E. C. and the plaintiff was administrator of said estate. The plaintiff delivered to the defendant certain articles of personal property belonging to the estate, valued at a certain sum, for which the defendant gave his receipt, by which he promised to account to the plaintiff for the said property on a settlement of said estate.

<p> In Error. </p> <p>If a Sheriff admit a prisoner to the liberties of the prison in a case not provided for by law, he is guilty of an escape; and if he take a bond to indemnify himself against such escape, such bond is void.</p> <p>THIS cause came up on a writ of error from the County Court for the County of Chittenden. Hernán Lowrey, Sheriff of the County of Chittenden, commenced an action of debt on a gaol bond against William Barney and Ebenezer Read, before a Justice of the Peace, which came to said County Court by appeal.</p> <p>The declaration was in the common form, to which, the defendants in the court below pleaded in bar, (admitting the commitment of the said William Barney, his admission to the liberties of the prison, and the execution of the bond on that occasion, by the defendants, as set forth in the plaintiff’s declaration) that the said William Barney remained within the liberties of said prison, and did not depart therefrom until having taken the oath provided by the act relating to gaols and gaolers, and for the relief of persons imprisoned therein, he was by a Court of gaol delivery legally discharged from his said imprisonment, setting forth the proceedings of the Court of gaol delivery in due and legal form.</p> <p>To which plea in bar the plaintiff replied, that although true it is that the said William Barney was discharged from prison and did depart therefrom, in the manner set forth in the said plea in bar ; yet the said execution in the said plea in bar mentioned, and on which the said Barney was committed, was not issued on a judgment rendered in a proper action of debt, covenant, contract or promise; or for costs on abatement, nonsuit, discontinuance, or demurrer according to the statute in such cases made and provided; but the said execution issued upon a judgment rendered upon an audita querela, for the damages and costs set forth in the plaintiff’s declaration.'</p> <p>To which replication the defendants demurred; and the Court below rendered judgment for the defendants; to reverse which the plaintiff brought this writ of error, which at the present term came on to be heard on the plea There is no Error.</p> <p>In any view which can be taken of this case, the gaol bond is valid, and obligatory upon the defendants, and the plaintiff is entitled to judgment upon it.</p> <p>1. — The Clerk who issued the execution, not having certified the nature of the action, in which the judgment was rendered, it appeared upon the face of it to be a case in which the sheriff was bound to admit the prisoner to the liberties of the prison. The Sheriff was by law not only authorized, but compelled to take the bond, or to admit the prisoner to the liberties without indemnity.</p> <p>2. — Barney and Read having entered into this bond voluntarily cannot excuse themselves from the penalty, by the proceedings of the Court of goal delivery, for as that Court had no jurisdiction of the case, their proceedings are void.</p> <p>B. — The creditor in the execution must have a remedy somewhere ; and clearly he cannot have a remedy against the Sheriff. He was necessarily governed by the face of the execution, and could not be answerable for the proceedings of the Court of gaol delivery. And he can have no remedy against the Clerk who signed the execution, because it does not appear to be a case in which the law required him to insert in the execution the nature of the action in which the judgment was rendered.</p> <p>In support of the judgment rendered by the court below, the defendants contended</p> <p>1. — The plaintiff in error, who acted in his official capacity of Sheriff of the County of Chittenden, was not authorized by law to admit the defendant Barney to the liberties of the prison, on the execution described in the plaintiff’s declaration.</p> <p>The statute provides that any person imprisoned and in gaol upon an execution founded on a proper action of debt, covenant, contract or promise, shall be admitted to the gaol-yard — such prisoner first giving bond to the Sheriff, &e.</p> <p>From the plaintiff’s declaration it appears, that the execution on which Barney was committed was not founded on a proper action of debt, covenant, contract or promise. The Sherifi, then, was not authorized by law to admit Barney to the liberties of the prison, or to take the bond in question, but was guilty of an escape in suffering Barney to go at large. Stat. Vol. I. 233.</p> <p>2. — Whenever a Sheriff permits a voluntary escape of a person confined for debt, he cannot legally retake him; and if he do retake him, he is liable to an action of false imprisonment. 2 T. R. 172. 5 idem 40. 2 Bac. 240.</p> <p>The object of imprisonment for debt is to compel the debtor to make satisfaction of the debt to the creditor. If then the Sherifi’ either bail a prisoner in a case where he is not bailable, or suffer him to go at large, though with a keeper, for ever so short a time, it is an escape. 2 Bac. 237. A bond or other security taken in such case, to save the Sheriff harmless is void. 5 Coke 101 — 102.</p> <p>3. — If however it be considered that the Sheriff was authorized by law to take the bond in question, and that it was a good and legal security to him against the escape of Barney; yet we insist that the plaintiff is barred of his remedy on the bond by the discharge of Barney by the Court of gaol delivery as set forth in the pleadings.</p> <p>The 40th section of the act relating to gaols and gaolers, and for the relief of persons imprisoned therein, provides for the discharge of all persons imprisoned by virtue of any execution issued on a judgment rendered in a proper action of debt, cove- . nant, contract or promise; or for costs recovered on abatement* nonsuit, discontinuance or demurrer. There is a striking similarity in the phraseology of this and that of the 11th section of the same act, which provides for the admission of prisoners to the liberties of the prison. ■ It is evident that the Legislature intended to extend the privilege of the poor debtor’s oath to all bailable cases ; and a literal construction of the act would carry it still further; for it is expressly provided, that the prisoners may be admitted to the poor debtor’s oath, when committed for costs in certain cases; and it is at least doubtful whether the Sheriff could lawfully admit such prisoners to the liberties of the prison.</p> <p>It is conceived that no case can be shown, where a prisoner has been denied the poor debtor’s oath, if entitled to the liberties of the prison.</p> <p>On no principle then, can the Sheriff be entitled to recover on this bond; if Barney was not entitled to the liberties of the prison, the bond we have seen is void ; if he was entitled to the liberties of the prison, the bond is valid, and the discharge by the Court of gaol delivery equally so.</p>

<p>If an Administrator da bonis non neglect to make an inventory of all tlie estate of tlie deceased, real and personal, whicli remained nnadministered by tlie former Administrator, and return the same to tbe Court of Probate within tlie time limited by the Court, is a breach of the condition of his bond.</p> <p>If such Administrator neglect to settle the account of his administration within the time limited, it is a breach of the condition of flip administration bond — nor will a settlement of the account of his administration, after the commencement of a suit on the administration bond, after judgment therein by nil dicit, for the penal sum, save the condition, or bar the action on the bond.</p> <p>THIS was an action of debt on an administration bond executed by Elijah Keeler and Lyman Wooster, on granting to the said Keeler letters of administration de lonis non on the estate of Charles McNiel, deceased.</p> <p>The declaration, after setting forth tlie bond with the condition in common form, proceeded to assign breeches of the condition as follows: — “ Now the said Court of Probate for the District of Chittenden saith, that after the execution of the writing obligatory aforesaid, to wit, on the 1st day of March, 1818, at Charlotte in the County of Chittenden, aforesaid, goods, chattels, rights, credits and estate, which were of the said Charles McNeil, not administered, to the amount of eight thousand dollars, came to the hands and possession of the said Elijah Keeler, administrator de lonis non as aforesaid; and that the said Elijah Keeler, administrator de lonis non as aforesaid, has not exhibited or caused to be exhitbited, into the registry of the Court of Probate for said District of Chittenden, any inventory of tlie goods, chattels, rights, credits and estate which were of the said Charles McNeil deceased, not administered or of any other goods, chattels, rights, credits or estate, which were of the said Charles Me Neil deceased, although the timo set and limited in the condition of the said writing obligatory, for exhibiting or causing to be exhibited such inventory has long since elapsed, and that the said Elijah Keeler lias not made or caused to be made any account of his administration, of the goods, chattels, rights* credits and estate, which were of the said Charles McNeil deceased, according to the condition annexed to the said writing obligatory, although the time set and limited in and by said condition for so doing has long since elapsed ; but has neglected and refused to render unto the said Court of Probate for the District of Chittenden any account of his administration, although lie the said Elijah Keeler was afterwards, to wit, on the 27th day of June, 1820, at Burlington, in said District of Chittenden, by the Honorable Jabez Penniman, then Judge of Probate for said District, ordered and directed to make and render to said Judge of the Court of Probate aforesaid an account of his administration as aforesaid; and has wasted the goods, chattels, rights credits and estates which were of the said deceased.</p> <p>And the said Court of Probate for the District of Chittenden further saith, that on the 5th day of April, 1811, at Charlotte, in said District of Chittenden, Erasmus Towner, Francis Braken-ridge, and ¥m. Williams, Commissioners duly appointed by the said Court of Probate to examine and adjust the claims of the creditors of the said Charles McNeil deceased, represented insolvent, among other creditors of said estate, found due and allowed to James Wilson, late of Quebec in the Province of Lower Canada, now of Danville in the County of Caledonia and State of Vermont, Peter S. Robinson, late of Quebec aforesaid now deceased, and James White of Paisley in Scotland in the Kingdom of Great Britian, then merchants in company, under the firm of Wilson, Robinson & Co. they being creditors of said estate, the sum of $856, from the estate of the said Charles McNeil deceased. Which said allowance of said Commissioners, was after-wards, to wit, on the 7th day of May, 1811, and in the life time of the said Peter S. Robinson, at Jericho, in said District of Chittenden, returned to and accepted and allowed by the Court of Probate for said District, as by the records of said Court of Probate, ready to be produced here in Court may appear. And the said James Wilson, Peter S Robinson, and James White, in the life time of the said Robinson, and the said Wilson and White since the decease of the said Robinson, have been injured and prevented from receiving payment of their said debt, so found due and ° 1 ^ 7 allowed to them as aforesaid, by reason of the non-performance by the said Elijah Keeler, of the condition annexed to said writing ob- ,. ° Iigatory as aforesaid, and their said debt remains due and unpaid. And so the said Court of Probate for the District of Chittenden saith, that the condition annexed to said writing obligatory has been broken and the penalty thereof become absolute. By reason whereof, and by force of the statute in such case made and provided, an action hath accrued to said Court of Probate, &c.</p> <p>This cause having been brought to this Court by appeal from, the County Court, at the present term of this Court, after judgment by verdict for the penal sum of said bond, and after the said Wilson and White were entered as prosecutors of said action, the defendants filed in Court the following plea in bar: — “ And now the said defendants, after judgment for the penal sum of the bond by nil dicit, and after the entry of the said Wilson and White as prosecutors, say, that the said Wilson and White from having any execution against them for any supposed damages set foith in Said declaration, ought to be barred, because they say, that previous to the appointment of the said Elijah Keeler as administrator de bonis non of the estate of the said Charles McNiel deceased, and before the execution of the said writing obligatory, set forth in the plaintiff’s declaration, an inventory of all and singular the goods, chattels and estate which were of the said Charles McNiel deceased, had been made and returned to said Court of Probate. And that before the appointment of the said Elijah Keeler as administrator de bonis non as aforesaid, the whole amount of the personal estate of the said Charles McNiel had been accounted for to the said Court of Probate by the then administrators, and by a decree of said Court of Probate on the 21st day of April, 1815, the same was duly settled in said Probate office, and the balance then in the hands of the said administrator, divided among the several creditors to said estate. That at the time when the said Elijah Keeler was appointed administrator de bonis non as aforesaid, no personal estate remained, and none ever came into the hands or possession of the said Elijah Keeler as such administrator; and nothing remained appertaining to said estate, except three hundred acres of land, and the said land was by virtue of an order of said Court of Probate disposed of, and a return thereof regularly made to said Court of Probate, and by said Court accepted, as by the records of said Court in said Court remaining will appear.</p> <p>And the defendants further say, that afterwards, to wit, on the 18th day of November, 1823, at a Court of Probate holden at Williston in and for said District of Chittenden, the account of the said Elijah Keeler as administrator as aforesaid was duly adjusted and settled, and a balance of $840 34 then found due from the said Elijah Keeler as administrator; and the said Court of Probate then and there decreed, that the said balance of $840 34 should be divided among the several creditors to said estate, amounting to a dividend of 12 cents on the dollar, as by the records of said Court of Probate may more fully appear. And the said defendants aver that the said Elijah Keeler, administrator as aforesaid, has ever been and still is ready to pay the said dividend of 12 cents on the dollar to the creditors to said estate, and the saméis now ready for the said Wilson and White if they will receive the same; all which, these defendants are ready to verify, &c.</p> <p>To this plea there was a demurrer and joinder.</p>

In Error. A mistake in the assessment of damages, not apparent from the record, whether the cause was tried by the Court or Jury, cannot be assigned for error. THIS cause came up on a writ of error from the County Court for the County of Chittenden.

In Error. In an action of debt on a recognizance for the prosecution of an appeal from the judgment of a Justice of the Peace, it is not necessary to set forth in the declaration a transcript of the record of the proceedings before the Justice; hut it is sufficient to set forth the proceedings with a taliter processum fait.

Billings agreed with Dodge to transport a quantity of goods from St. Johns to New-York, and. gave him the following letter of instuetions*. — “ Sir, you wil* receive of mine, seven packages of merchandise, now in James Watson’s store iu St. Johns, and forward them to New York, to Robbins & Frost, flour merchants. You will enter them in Vermont District, and pay the expenses and secure the duties, which sums I will stand accountable to you for.

In Error. The judgmentof a County Court rendered upon the trial of an issue of fact, by agreement of parties, is conclusive, and the evidence on which the issue was found cannot be re-examined on a writ of error. THIS was a writ of error brought to reverse a judgment rendered by the County Court for the County of Bennington, upon the trial of an issue of fact, joined to the Court by agreement of parties.

If two joint creditors commence an action qui tam as feeing tlie party aggrieved, to recover the penalty given fey statute against fraudulent conveyances, and pending the action one of the plaintiffs… Held: that the cause of action survived to a surviving plaintiff, which could not survive to the representative of the deceased.

<p>To prove the possession of a defendant in iin action of ejectment, it is sufficient to prove a third person in actual possession under the defendant; and if it appear on trial that such third person is in possession of the premises, under a contract in writing between frim and the defendant, the possession of the defendant is sufficiently proved, and it is unnecessary to produce such written contract.</p> <p>THIS was an action of ejectment for one acre and one quarter of an acre of land in Sandgate, with a dwelling house and barn thereon. On trial upon the general issue at the last February term, the plaintiff produced evidence of title to the premises by the levy of an execution in his favor against Michael Bennet, on the 14th day of May, 1821, and by proof that Ben-net was in possession of the premises at the time of the levy.</p> <p>The plaintiff also proved by parol testimony that the defendants went into possession of the premises in the fall of the year 1821, and that, in the spring of the year 1822, and before the commencement of the plaintiff’s action, Gailor Nichols went into possession of the premises, under a lease.or contract in writing between him the said Gailor and the defendants.</p> <p>The Court decided that this was not legal evidence of the fact that said Gailor Nichols was in possession of the premises under the defendants, but that it was necessary for the plaintiff to produce the lease or written contract between said Nichols and the defendants, and directed a nonsuit, with leave to the plaintiff to move to set it aside. And at the present term the cause again came on to be heard on a motion by the plaintiff to set aside the nonsuit, and for a new trial.</p> <p>The question in this case is, whether it is not competent for the plaintiff to prove by parol that Gailor Nichols was in possession of the premises at the time the action was commenced, under the defendant, without producing the contract or lease in writing from the defendant, under which he took possession. Possession or tenancy is a fact that may be proved by parol evidence. 7 John. 186. Yan Allen v. Yosburgh.</p> <p>The contract between the defendant and Nichols under which Nichols took possession, is a collateral fact, and not the foundation or ground of action; therefore, it is contended that the possession of Nichols under the defendants may be proved by parol evidence; and that it is not incumbent on the plaintiff to produce such writing to prove the fact that Nichols held under the defendants. Anthori. Eep. 40. 1 John. 340.</p> <p>The contents of any writing which does not constitute the ground of action, and is collateral only in the suit, may be proved by parol, especially if it lie not between the parties to the suit. 12 East. 237, (note a.) 238. Wood v. Morris.</p> <p>The plaintiff cannot excuse himself from observing the strict rules of evidence, on the ground that the lease in writing is collateral to the action; for the law requires the same strictness of proof as if the action had been founded on stipulations or covenants in the lease. But the plaintiff having it in his power, as must be presumed, to produce the written instrument in question, has himself assumed to decide on its legal sufficiency and effect, and its execution by the defendants, which assumption the law will not permit. In short the common rule, that the best evidence shall be given which the nature of the case admits, clearly requires the lease to be produced.</p>

<p>A verdict -will be set aside on proof that a Juryman, before the hearing of the cause, declared that he could not give a verdict against the party, in whose favor the verdict was given; with proof also, that the party against whom the verdict was given had no knowledge of such declaration until after the trial.</p> <p>THIS was an action of trover, for corn, rye, and meal-bags. On trial upon the general issue, it appeared in evidence that the plaintiffs were distillers, and the defendants millers, in the town of Dorset. That certain bins were erected by the defendants, in their mill, designed chiefly for the use of the plaintiffs in storing grain and meal. It also appeared that the plaintiffs did occupy said bins for storing their grain and meal. It further appeared, that a hole was bored from below, through the floor, and through the bottom of one of the bins in which the plaintiffs stored their grain. And that, at different times, corn was seen on the floor directly under this hole; and that corn was also frequently seen in the morning under the mill, and under the bin on the ground near the water’s edge: and that the defendant’s hogs were frequently seen eating it. It further appeared that the plaintiffs, on or about the 29th of December, 1820, had stored in said bins a quantity of corn — what quantity did not appear. It appeared that the defendants also put some corn into the bin in which the plaintiffs’ corn had been put — what quantity did not appear, nor was there any evidence that there was any of the defendant’s corn in the bin at the time when the plaintiffs put in their corn. It further appeared that the defendants owed one Noble Bostwick some grain, to be paid about the first of January, 1821. And at that time the defendants turned out to said Bostwick about one hundred and sixty bushels of corn. That some of the corn was taken from the house of the defendants, and some from the bins in the mill.</p> <p>The Court, in their charge to the Jury, directed them, that as the bins were in the mill and in the possession of the defendants, they might put grain of their own into the bins, with the plaintiffs’, and if they took out no more than they put in, the plaintiffs were not entitled to recover. For that the defendants had a right to mix their grain with the grain of the plaintiffs, provided they did not take out more than they put in, there being no question as to the quantity of the grain. Whereon the Jury returned a verdict for the defendants. To which opinion of the Court the plaintiffs excepted and moved for a new trial. And as a further reason for a new trial the plaintiffs stated, and verified by affidavit, that Benajah Cook, of Arlington, was one of the Jurymen sworn upon the Jury who tried said cause and found said verdict against them the plaintiffs. And that said Benajah Cook in a conversation relative to said cause, in the month of December, 1821, with said Elias Hurlbut, stated and declared to said Elias, that he had no doubt but that the defendant ought to recover in said cause, and that if he should ever have an opportunity to sit as a Juryman in the trial of it, he could not give a verdict against the defendant. And that the plaintiffs were wholly ignorant of said conversation, and had no knowledge of said declaration of said Cook until after the trial of said cause.</p> <p>And at the present term the said cause came on to be heard on said motion for a new trial.</p> <p>It is a settled principle of law, that whenever one person wilfully mixes his grain with the grain of another, the whole belongs to the person whose rights have been thus invaded. 2 Bl. Com. 405. The reason on which this rule of law is founded is obvious. By such intermixture the quantity belonging to each is uncertain ■ — this uncertainty itself would be an injury to the person with whose grain another has mixed his own. Tiie law says with great propriety, that the innocent party shall not sustain this injury, but he shall be entitled to the whole, and the person who made the in-termixtuie shall forfeit his own. This principle of law clearly applies to the present case. That the bins were in the defendant’s mill, and even that the bins belonged to the defendants varies not the case ; it is enough that tiie plaintiffs had license from the defendants to put their grain into the bins ; for the defendants could in such case have no right to intermix their grain with the plaintiffs:’ and the injury they have sustained is precisely the same as though the plaintiffs had been the owners of the mill and the bins.</p> <p>But if we are incorrect in this, yet we contend that the plaintiffs are entitled to a new trial, on account of the misconduct of the Juror. It is in proof, and the fact is clearly established, that the Juror had declared before the trial, that he would never give a verdict in this cause for the plaintiffs, or rather that he would never give a verdict against the defendants, and that this was wholly unknown to the plaintiffs until after the trial. The law is settled that this is a sufficient cause for setting aside a verdict. 1 Sellon’s Practice, 490. 2 Salk. G45. 21 Vin. 483. 3 Dallas, 515. 6 Bac. 668.</p> <p>We insist that the plaintiffs are not entitled to a new trial, on either ground on which they rely, for that,</p> <p>1. — The charge of the Court was correct. The rule of law in relation to the confusion of goods, extends only to cases of wilful intermixture, and that by a person not at all interested in the chattels with which he intermixes his own. 2 BL Com. 405. In this case the defendants had the interest of bailees.</p> <p>2. — But if the charge of the Court was incorrect in this particular, the plaintiffs’ rights could not be affected by it, as it apr pears from the case, that there was no evidence before the Jury of an intermixture of grain, it was simply laying down an abstract principle of law.</p> <p>That one of the Jurors had before the trial formed and expressed an opinion respecting the cause, although a cause of challenge is no ground for a new trial,</p> <p>If 0ne of the Jurors is related to one of the parties — has a sujf pending with one of the parties against whom a verdict is found, or is not a freeholder, the Court will not grant a new trial. It is only a cause of challenge. In the present case it was sheer negligence that the party did not inform himself of the objection to the Juror, and make the challenge. It would be of most dangerous tendency to make this a ground for a new trial.</p> <p>Again, it appears from the case stated, that justice was done between the parties. Indeed, the verdict given was the only one which the evidence could in any way warrant. The granting of new trials rests in the sound discretion of the Court, and they will not grant a new trial where substantial justice has been done.</p>

<p>If a writ of error be made returnable, notto the next term of the Supreme Court, * one or more terms intervening between the allowance of the writ and the return, it is irregular and void, and cannot be made to operate as a supersedeas.</p> <p>In such case a second writ of error may be a supersedeas.</p> <p>Bail on a writ of error are not in all cases holden for the amount of the judgement if it he affirmed, hut by statute are made liable only for the actual damages occasioned by the delay, and for single or double costs as they may in the discretion of the Court be taxed on the affirmance of the judgment.</p> <p>THIS was an action of debt on a bond of recognizance in the penal sum of $1200, for the prosecution of a writ of error, entered into agreeably to the eight section of the Judiciary Act, passed November 4, 1797. (1 Stat. 57.)</p> <p>The writ was dated October 25, 1820, from which, and the pleadings thereon, in which oyer of the former proceedings was prayed and granted, the following facts appeared: That the plaintiff, on the 6th day of May, 1817, took out a writ of attachment against one Daniel Rogers of Hoosac, in the State of New-York, which was duly served, and upon which bail was entered. That on the 3d Monday' of December, 1817, the plaintiff recovered judgment thereon, before the Bennington County Court, for the sum of $990 88 damages, and $21 94 costs of suit, and thereof prayed out execution dated January 5, 1818, and made returnable within sixty days from date. That this execution was put into the hands of an officer, who, on the 2d day of March, 1818, made the following return thereon : — “ By virtue of the within execution, I have made the most diligent search throughout my precinct, and connot find either the body of the said Daniel Rogers, or any property or estate whereon to levy or satisfy this execution. Attest, Hiram Hinsdale, Constable.” That on the 23d day of January, 1818, Rogers prayed out a writ of error on said judgment, returnable to the Supreme Court at their term holden at Bennington on-, on which one David Henry became recognized to the defendant in error, in the sum of $1200, and which was served on the 2d day of March, 1818.</p> <p>To this writ a plea in abatement was pleaded, for that, a term of the Supreme Court intervened between the service and the return day of said writ of error; and the same was for that causé abated. That afterwards, on the 22d day of January, 1819, the said Rogers prayed out a second writ of error, in which the present defendants became recognised to the said Brace in the said sum of $1200, upon which was indorsed the certificate of the oath agreeably to the 1st section of the act of November 1, 1809, and which was duly served on the 9th day of June, 1819. That afterwards, at the January term of the Supreme Court, holden at Bennington, A. D. 1820, the judgment of the County Court was, upon the second writ of error affirmed ; and there was also added to the judgment, damages for the detention of said debt, with the additional costs on said writ of error, amounting in the whole to the sum of $1114 74 damages, and $31 84 costs; upon which last judgment execution was also issued, and returned with a non est inventus endorsed thereon; the costs on the affirmance were tendered by the defendants and accepted by the plaintiff without prejudice} Whereupon the present suit was brought; pending which, at the</p> <p>August term, 1821, the following motion was filed by the defendants, with the consent of the plaintiff:—</p> <p>“ And now the said David Robinson, Jun. and</p> <p>Truman Squire, here in Court, move this Court that upon the payment of the further sum of seventy-five dollars, being the interest on the sum of debt and cost of the former judgment from the time of the allowance of the writ of error to the time of the affirmance, and the interest on the same from the time of affirmance, that the plaintiff stay all further proceedings.”</p> <p>The case was argued by D. Ohipman and Langdon for the plaintiff, and by Squire and Robinson, the defendants pro sese.</p> <p>[Skinner Ch. J. and Williams J. having been of counsel in •the cause, did not sit.]</p> <p>And now at the adjourned term of said Court, holden at Manchester, within and for said County, on the 23d day of May, 1824,</p>

<p>If a debtor be committed to gaol or an execution in favor of the Sheriff of the County, hé is in the legal custody of the Sheriff, and a bond taken to the Sheriff for the admission of such debtor to the liberties of the prison is valid, and an action may be maintained on such bond in the name of the Sheriff.</p> <p>was an action of debt on a gaol bond, in which the plain- & 1 . _ . tiff declared, that the plaintiff by the consideration of the County Court liolden at Burlington within and for the County of Chitten-den, recovered judgment in his favor against William Hine, of Col-chester, in the County of Chittenden, for the sum of $127 27 damages, and for $13 22 costs of suit. That he took out an execution on said judgment, directed to the High Bailiff of the County of Chittenden, his Deputy, or either Constable of Colchester in said County to serve, &c. That he delivered said execution to Moses Bliss, High Bailiff of said County, who by virtue thereof, committed said William Hine to the common gaol in Burlington, &c. And Hernán Lowrey (the plaintiff) then Sheriff of said County, being by virtue of his said office keeper in chief of said prison, after-wards, &c. — the said William Hine then imprisoned as aforesaid, for the cause aforesaid, in the custody of the said Sheriff, did admit to the liberties of the said gaol yard, and on that occasion, and to indemnify the said Sheriff against any escape, which the said William Hine might commit in the premises, the defendants on the day and year last aforesaid, &c. executed a bond to the said Sheriff, with a condition thereto annexed in legal form. The declaration then alleges the escape of the said Hiñe, and concludes in due form.</p> <p>To this declaration the defendants demurred.</p>

Claims allowed by Commissioners against an estate represented insolvent are'considered as judgment debts, and being such, no plea founded on the merits of the original contract can avail. An action of debt for the recovery of such claim is not an action of debt on “ any lending or contract,” without specialty: and is not within the limitation of six years.

a cookingstove is not an article of ornament or luxury, but is an article of household furniture, necessary for upholding life, within the meaning of the statute, exempting certain articles of personal property from attachment and execution. THIS was a writ of error brought to reverse a judgment rendered by the County Court for the County of Rutland, in an action of trespass brought by Crocker v. Spencer for taking a cooking stove and pipe, the property of Crocker.

An alteration in the circumstances of a devisor after the execution of his will, will not in any case amount to a revocation in law. If a part of tlie estate devised be conveyed by the testator, it is a revocation of the will pro tanto only.

Kimball, having taken out letters of administration on the estate of Barber, represented the estate insolvent; on which Commissioners were… Held: that a claim allowed by the Commissioners against an estate represented insolvent, is in the nature of a judgment debt; and although Kimball might in this case have vacated the judgment by entering an appeal within the time limited by law, yet as he neglected to do so, it became to all intents, a final judgment, as clearly so as…

If an action be brought before tbe County Court on several promissory notes each of which is within the jurisdiction of a Justice of the Peace — yet if the aggregate amount of all the notes exceed his jurisdiction, such action is not made cognizable before a Justice of the Peace, and therefore the County Court have jurisdiction of it. THIS was an action of assumpsit, brought originally before the r, r, . .

In an action of account at common law, between merchants, it is unnecessary for tlie plaintiff to state in liis declaration from whose hands the defendant received the moneys for which he is called on to account.

A Justice of tlie Peace has no authority to render a judgment by confession if he he interested in the demand on which the judgment is rendered — the case coming within the equity of that clause of the 23d section of the act defining the powers of Justices of the Peace, which prohibits a Justice of the Peace from taking cognizance of any cause, where he shall be directly or indirectly interested in the cause or matter to be determined.

A mortgage deed is nothing more than a pledge of real estate, as security for the paymentof a debt. It is an accident of the debt, and liable, at all times, before the equity of redemption is foreclosed, to be defeated by the payment of the debt. THIS was an action of ejectment for lands in Rockingham.

<p>A writ or process against the Overseers of the Roor of a town, is in effect against such town, and within the provisions of the 24th section of the Judiciary Act, and must be served at least thirty days before the session of the Court to which it is made returnable.</p> <p>A citation to appear and show cause why a new trial should not be granted, is within the same provision, and is not taken out of the above mentioned statute by the act authorizing the Court to grant new</p> <p>THIS was a petition for a new trial, brought before this Court, by the overseers of the poor of the town of Guilford against the overseers of the poor of the town of Jamaica.</p> <p>The defendants pleaded in abatement that the citation was not served thirty days before the session of the Court to which it was made returnable.</p>

The statute authorizing Justices of the Peace to commit or hind over for trial, does not require a return of the original recognizance to be made to the Court before which the accused is bound to appear; but a return of a copy is suffi- THIS was an action of debt on recognizance. °

<p>The act fixing the time within which actions must he entered in Justices’ Courts, is directory to the Justices. Of the actual time of entry the Justice is necessarily the judge in the first instance. If the party he dissatisfied "with his decision, he may plead the matter in abatement, and have the fact found by a Jury; but, if he waive it, and plead to the merits of the action, he is and ought to be bound by his election, and the defendant can never thereafter avail himself of the same matter in abatement, by writ of error or otherwise.</p> <p>If a barn or farm-yard passes with the farm by a deed of conveyance, and if the grantor convey the manure from the farm and use or dispose of it, the purchaser of the farm may maintain trover against him, and recover the value of the manure.</p> <p>THIS was a writ of error brought to reverse a judgment rendered by tbe County Court for the County of Windsor, in an action of trover, originally commenced before a Justice of the Peace. On trial before the Justice, the defendant made a motion to the Court, ore tenus, to dismiss the action, for that it was not entered or called within two hours after the time set in the writ for trial. The Justice refused to dismiss the action, whereupon the defendant went to trial upon the merits, and judgment was for the plaintiff — from which tbe defendant entered an appeal to the County Court.</p> <p>The defendant renewed his motion in the County Court to dismiss the action, which was overruled by the Court.</p> <p>The defendant then pleaded the general issue, and the Jury returned a verdict for thg, plaintiff, on which judgment was rendered: Upon which the defendant filed the following bill of exceptions which was allowed by the Judges, on which this writ of error was brought.</p> <p>Before the trial of said action, the defendant filed his motion to dismiss said action, on the ground that the same was not entered in the Justice’s Court till more than two hours after the time set in the plaintiff’s writ for trial. Reference is had to said petition on file, and the defendant offered to prove that he requested the Justice who tried said action, to make a record of said objection of the defendant to the entry of said action, and certify the same to the Court; but said plaintiff objected to the Court’s receiving said motion to dismiss, so as to try its merits, and said Court sanctioned said objection, and refused to receive said motion to dismiss so as to try its merits. And on trial of said action to the Jury, the only evidence the plaintiff adduced to show his title to the manure sued for, was a deed from the defendant to the plaintiff, dated March the 2d, 1822, of the land on which said manure then was, as it originally lay in the barn-yard and in heaps at the stable windows, and it was admitted by the plaintiff that the defendant was to retain possession of said land till the first of April, in said year 1822, and the plaintiff proved that said defendant, before said first of April, to wit, on the 28th and 29th days of said March, carted said manure off from said premises to a distance of forty or fifty rods, and there placed the same in a heap, on the land of a Mr. Tuttle, and that in May following the defendant sold the same. The plaintiff also proved the value of said manure, which is all the testimony adduced by the plaintiff. And the defendant moved the Court to order a nonsuit on the ground that said testimony did not support said action; but said Court refused to order a nonsuit, but suffered said action to proceed. Said defendant then requested said Court to give in charge to said Jury, that said manure, as it lay, when said deed was given, was personal estate,-and of course the plaintiff had no right to the same by said deed — also, that if said manure was real estate, and the title passed to the plaintiff by said deed, yet if the Jury should find that the defendant severing the same from the freehold, and carrying it away from said premises, and placing the same in said heap, was ore continued act, the action of tro-ver would not lie. But said Court refused so to charge said Jury, but did then charge to the contrary on both of said points; and as said matters do not appear of record, &c.</p> <p>The errors specially assigned are,</p> <p>1. — That the County Court refused to hear and try the merits of a motion to dismiss the action made by Stone the defendant below, (which motion was predicated on matters dehors the record) and also that they refused to dismiss or order a nonsuit in said action, upon said motion.</p> <p>2. — That said Court refused to charge the Jury that said manure in the situation in which it was, was personal estate, and did not pass by the deed, but on the contrary did charge the Jury that the same was real estate, and did pass by the deed. •</p> <p>3. — That said Court refused to charge the Jury, that if they should find, that the severing of said manure from the freehold, and carrying the same away, was one continued act, trover would not lie for the same, but did charge the Jury that even if they should so find, yet trover would lie.</p> <p>Plea — There is no error.</p> <p>Proctor brought his action of trover before a Justice for forty cart-loads of manure. The plaintiff did not enter his action before the Justice till after two hours from the time prescribed in the writ for its return. Stone objected to the entry of the action. The Justice overruled the objection, and entered the action. The trial proceeded. The plaintiff, Proctor, recovered judgment, and Stone appealed to the County Court. Stone’s attorney applied to the Justice for the copies of the case and the appeal, and particularly requested the Justice to transmit with the copies, and as a part thereof, the objection of the defendant to the entry of the action offer the two hours had expired. But the copies were made and forwarded by the Justice, wholly omitting that part which related to the objection to the entry of the action.</p> <p>Stone made his motion in writing, to the County Court for a dismissal of the action, on the ground that the Justice had no jurisdiction of the action through want of a seasonable entry, and offered to prove the non- entry within two hours — the objection made to the entry, and the overruling the objection, and the request made to the Justice to have all this appear in his copies of the appeal, and showed by the copies of the appeal that the defendant had not, in writing, assented to the entry. But said County Court refused to hear the evidence upon, or in any way to try the merits of said motion, but did dismiss the same without trying its merits.</p> <p>This is assigned for error, and we deem it to be error. If the fact were as we contend, the Justice had no jurisdiction. The statute is peremptory that the action shall not be entered after two hours, unless by the consent of the defendant, and said consent entered of record. See stat. Vol. 1, p. 185 — 6.</p> <p>If the Justice did notenter of record any consent, which he did not in this case, and refused to send up a record of objection, these facts should be proved by parol; and being proved, should prevail. We rely, as in point, upon 8 John. R. 391, Proudfit v. Henman and Henman. Same 409, Low v. Rice. 7 Mass. 28. 11 John. 407.</p> <p>The points on which the other errors are assigned aro.-e upon the motion for non-suit, and in the charge to the Jury, and the Court refusing to charge as requested. These depend</p> <p>1st. — Upon the question whether the manure as it lay originally in the barn-yard, and in heaps at the barn-windows, was real estate, and passed by the deed of Stone to Proctor, or whether it was personal estate, and might be used by Stone, notwithstanding his deed. And</p> <p>2dly. — Whether the taking and carrying away of the manure, if all one continued act till it was placed off the premises on other lands, would support an action of trover, or must be trespass. Upon the first of those points, we find but one instance in which the question was ever raised, and in that it was decided to be personal estate. Vin. Abr. Vol. 11, p. 175. Citing Styles 66 Mich. 23d case, Carver v. Pierce.</p> <p>There is one case in which it has been decided in New-York or Massachusetts, that for a tenant to carry manure off of premises was not good husbandry; but this has nothing to do with the question whether it is real or personal estate. If it is real estate, we may ask when it becomes so. Truly it is not so when in hay and fodder, after severed from the freehold, and before eaten by the creatures — nor while within the body after eaten — nor should we suppose by its being dropped upon the stable floor, nor while on the shovel passing out of the window upon the ground in heaps, or being originally dropped about the barn-yard; in both which cases, it is necessarily to be moved before use. As well might we suppose the hay lying upon the ground before raking, or in winrows or heaps before carting, or wood lying upon the ground in the woods or about the door-yard, or in heaps there, are real estate. In all which cases, the lying on the ground forms the only ingredient they possess of real estate. Indeed, by the same rule, our cattle and sheep, when lying on the ground, would be real estate. When manure is carried to, and spread upon the fields to increase vegetation, it necessarily becomes real estate; but never till then.</p> <p>We conceive that rocks as they lie upon the land in their natural state, are real estate: but if collected into heaps to be used about wall, they are personal estate, severed from the freehold. But when laid into wall to remain permanent, they again become real estate.</p> <p>With regard to the last point, if the manure was real estate, the taking and carrying away, if one continued act, is trespass, and cannot be trover. And after once wholly gone from the possession of Proctor by one continued act, the after using would not vary the nature of the action. To this we cite BI. Com. p. 382, where the cutting and carrying away trees at one and the same time, cannot be stealing, but only trespass ; but the cutting at one time, and secretly carrying away at another, is theft: Because by the cutting and leaving, the trees become personal estate. For says the book, it is the severing from the freehold that makes them personal estate, and as such they never were in possession of the owner of the soil. So if the manure in question were ever real estate, it was never in Proctor’s possession otherwise than as real estate: of course, can never be the subject of an action of trover in his favor.</p> <p>On any ground, therefore, we conceive the judgment of the County Court ought to be reversed.</p> <p>It is contended by the defendant in error,</p> <p>1. — That it appears by the record of said Justice, that the original action was duly entered and tried before said Justice. And the record is, in law, conclusive betweenjhe parties. Phil. Ev. 227, 228. Bull. N. P. 221.</p> <p>2. — That if said action was not entered before said ¡[Justice within the said two hours, yet said|Stone, by appearing and|pleading to said action, and praying for, and actually proceeding to a trial by Jury, on the merits of said action, waived all exceptions to the entry.</p> <p>3. — That said manure was appurtenant to said land, and passed therewith by virtue of said deed. Esp. N. P. Vol. 1, part 2, p. 131. 4 John. R.. 156, Hyatt v. Wood. Coke Lit. 121.</p> <p>4. — That said manure by being severed from said land became personal property. That said Stone by changing it into personal property, could not acquire any title to, or interest in it, as against said Proctor; but by being severed from said land, it became and remained the personal property of said Proctor, as long as it was capable of being identified. 3 Wils. R. 338. 5 John. R. 348. 6 John. R. 168. 5 Mass. R. 342.</p> <p>5. — That for carrying off said manure after it was severed from said land, and putting it into a heap on the 28th and 29th of March, and selling and disposing of the same in May following, trover will lie. 1 Chit, on Pleas and Pleading, 149. 6 Bae. Abr. Trover B. 679. 7 Term Rep. 13. Croke Car. 242. Com. Dig. Biens II. 145, 146. 15 Mass. 204.</p>

<p>If a party sustain loss by the negligence of his attorney in the collection of a debt the latter is liable in damages, to be measured by the amount of the loss actio, ally sustained, and not by the nominal amount of the demand in collection. And any fact, -which will tend to reduce the value of the debt, below the nominal amount, is proper to be considered by the Jury.</p> <p>It is the duty of an attorney, who undertakes the collection of a debt, without special instructions, to pursue it through all the stages, as well against the Sheriff and bail, as against the principal, till the object is effected.</p> <p>But he is justified in not prosecuting, unless specially directed, in cases where he is influenced by a prudent regard to the interest of the creditor.</p> <p>THIS cause came before the Court on a motion for a new trial, and is founded upon exceptions, taken to certain opinions of the Court, expressed on the Jury trial, and which appear in the following case:</p> <p>On the trial of said action, the plaintiffs proved the employment of the defendants as attorneys to commence and prosecute their action on book account against Meriam; and that no scire facias was brought against said Charles Willard,jbail of said Meriam, within the year, as set forth in the declaration. That his real estate was under mortgage for more than its value. That the officer at the time of taking Willard as bail, knew of the mortgages, but did not know their amount. That he owed other debts to the amount of $1762, and was in possession of personal property to the amount of $584 62 only. That at the time of the service of the original writ and the acceptance of Willard as bail, all the personal property of said Willard was in custody of the law, and liable to be sold on execution; and that this fact was well known to the Sheriff’s officer who served said writ; but the same proved sufficient to pay said debts, for which it was liable to be sold as aforesaid, and leave a yoke of oxen and horse, some other stock, and a set of farming tools. And the defendants proved, or, at least, adduced testimony calculated to prove, that said Meriam absconded from said Hart-land in the spring of the year 1818. That he had no visible property then, nor for a considerable time before; and that, after being in business of merchandize about six months, in Albany, in the State of New-York, he failed in said business and has ever since remained there and in the city of New-York, and been very poor, "'ben said Willard was taken as bail, he was reputed to be in circumstances of responsibility, but in fact ivas not able to pay all his debts. That he carried on two farms, which yielded large prof-bs the summer before, and the summer following his being so taken as bRii as aforesaid ; but in the spring of 1819, he became wholly destitute of property, and swore out of gaol. That Josiah Crooker, one of the plaintiffs, lived about two miles from the office of the defendants, and was Constable of Pomfret during said period while he complains of the defendants’ neglect, and was often in the village where the defendants lived, on business, and must probably have seen them often. And there was no proof that the plaintiffs, or either of them, ever made any application to the defendants, or either of them, to commence a scire facias against said Willard as bail of said Meriam, or made any new retainer therefor, or that the defendants ever gave the plaintiffs notice of the situation of their case, and requested further instructions other than is herein stated. The plaintiffs also proved that said Willard was received as bail by the Sheriff, on the 17th of July, 1818; and that the Supreme Court, at the September term, 1820, adjudged against the Sheriff, on account of the insufficiency of said Willard, at said last time, when he was received as bail as aforesaid.</p> <p>It was also in evidence, that after the service of a scire facias, which the defendants did cause to be served on the said Willard, on the 21st Dec. 1820, to wit, in February or March following, that the officer and Willard offered to pay to the plaintiffs $50 to be released from their liability to the plaintiffs, and said it would cost that sum to bring and deliver up said Meriam, and that the plaintiffs offered to take $100. The plaintiffs went into the office and talked with said Cushman — the officer not present ■ — and when he came in, said Cushman advised the plaintiffs not to settle with said Willard and the officer.</p> <p>And said defendants did then and there contend before said Court, that they were not liable for the neglect complained of by the plaintiffs, without a new application from the plaintiffs to bring such scire facias. That one of the plaintiffs living so near the defendants, and so often seeing them, must have known about his prospects of collecting his debt by pursuing Willard, and must have known that no scire facias was brought against Willard; and that, from all the foregoing circumstances, and his not causing somebody to commence a scire facias, the Jury were well warranted in presuming that he had countermanded the retainer of the defendants, or had requested them not to commence a scire facias against said Willard. That the chance of collection was too small to warrant a scire facias without express directions from the plaintiffs. That the scire facias would probably have no effect, unless it was to compel the delivering up of Meriamj and making cost. That, therefore, the plaintiffs could not have wished such pursuit. And said defendants moved the said Court to direct a nonsuit in said action for want of proof of a new retainer, or new application from the plaintiffs to the defendants to bring scire facias against said Willard. But said Court refused so to direct, and did decide that the original retainer bound the defendants to pursue said scire facias. And said defendants then and there contended, That it was a proper question of fact for the Jury to determine, from all the foregoing circumstances, whether the plaintiffs did or did not know of, and consent to said delay complained of in said declaration, and control their said demand, and direct what suit or suits should be brought to enforce the collection. But the said Court then and there decided that not to be a legal inference from the circumstances, and refused to leave the same to the Jury.</p> <p>And said Court did then and there give in charge to said Jury, That the prospect of Meriam’s being delivered up in discharge of his said bail, Willard, was too remote for the Jury to consider, either in reference to the claim against Willard upon the scire facias, or to the claim against the Sheriff, for taking said Willard as bail as aforesaid. But that, if the Jury believed that the defendants, in the exercise of a sound and fair discretion, thought it not for the interest of the plaintiffs to commence a scire facias, a verdict should be returned for the defendants.</p> <p>To all which decisions said defendants do except, &c.</p> <p>The defendants, as attorneys of the plaintiffs, undertook the collection of a debt in favor of the plaintiffs against Richard Mer-iam, and issued a writ on book account, which was served January 6th, 1818, returnable to Windsor County Court, March term, 1818. Service was made by attaching the body of Mer-jam, and Charles Willard was taken as bail.</p> <p>Auditors having been appointed, and having reported, judgment was rendered and execution issued in favor of J. and Z. Crooker against Meriam for $193 70 damages, and $24 47 cost, and 25 ct. for execution, September term, 1819.</p> <p>Execution having been given to an officer, was returned non est December 1,1819.</p> <p>Meriam, the original debtor, went into the State of New-York soon after the service of the original writ.</p> <p>Willard, the bail, at the time of the service of the writ, was insolvent, as stated in the case.</p> <p>The plaintiffs insist that it was the proper duty of the defendants, as attorneys, to have taken out and prosecuted, within one year from the time of the judgment against Meriam, a writ of scire facias against Willard. That this duty they omitted; and that in consequence of this omission, the plaintiffs have lost the opportunity of enforcing the collection of their debt against the officer.</p> <p>That it was the duty of the defendants, as attorneys, having undertaken the collection of the plaintiffs’ debt, to have sued out the scire facias in proper season to charge the bail. The plaintiffs rely upon the general understanding and custom of attorneys and clients. That an attorney having undertaken the collection of a debt, and commenced a suit, without farther instructions, does sue out all process necessary to effect this object, unless he be directed to desist, or unless he decline farther attention to his client’s business, and give notice accordingly. That such is the general course of business in this State. That the attorney without fresh instructions, and as circumstances occur, pursues the officer or neglect — the receiptor of property attached — the gaol-bond— <-cire facias against bail — enters an appeal; or if his client be appellee, files his complaint for affirmation of judgment. That pursuit by the attorney is his duty in such cases, is also contended on the authority of Dearborn v. Dearborn — 15 Mass. 316.</p> <p>The cases cited from the English authorities, in the defence, that a scire facias is a new suit, and requires anew warrant of attorney, do not apply to the practice in this country — the mode of appointing attorneys being different from that in Great Britian and N. York.</p> <p>The plaintiffs contend that this case furnishes strong grounds for recovery; — from the situation of Meriam, the circumstances under which bail was taken, as in the event of Merriam’s not being delivered up on the scire facias, the officer would have been liable, and such seems to have been the opinion of one of the defendants in advising J. Crooker not to settle with the officer, as the whole debt could probably be recovered.</p> <p>The defendants except to the charge that the prospect of Mer-iam’s being delivered up in discharge of his bail, was too remote for the Jury to consider, &c. Meriam was in New-York or Albany. If the scire facias had, in the usual course of business, been commenced at March term, 1820, (which was previous to the decision in Reed’s case) the officer would have felt no interest in bringing back Meriam, as he did not then suppose himself liable; and Willard, who was insolvent, would never take any trouble to bring up the principal. But the chances were hazardous. It was a dangerous experiment to go into the State of New-York on such an expedition. The contingency of bringing back Mer-iam was then, truly, too remote to be taken into account.</p> <p>The defendants insist, that as J. Crooker lived within two or three miles of them, and often saw them, the Jury were to presume he knew of the facts, and gave instructions not to pursue. The situation of the case — of the principal — bail, and their circumstances, forbid any such inference: Pursuit was particularly necessary. Such an inference does not agree with the understanding of the defendants, while the scire facias was pending, and with the advice given to J. Crooker, one of the plaintiffs, not to settle with the officer. The inference, too, is wholly unwarranted, when we consider the steps pursued, as it would seem, for the express purpose of charging the bail. The suit against Meriam was pursued to final judgment, and the execution given out, as if for the. mere purpose of laying the foundation of a scire facias, as it was well known that Meriam had absconded and was insolvent — that in this stage the plaintiffs should have directed the defendants to desist is therefore incredible.</p> <p>contended that the decision of the Court, upon the subject of a new retainer, was incorrect. That the first retainer extended only to the giving out execution uPon judgment in the first suit — especially as one of the plaintiffs so resided that he must have been conusant of his whole concerns- 8 John. R. 361, 367, Jackson v. Bartlett. 2 Bos. and Pull. 357, Tipping v. Johnson. 6 John R. 106, Gonigal v. Smith. 1 Salk. R. 89. 2 do. 603. 5 Modern 397. 6 do. 304. i ¿f0. 402. 3 do. 369 — and Lillie’s Entries 225,403, 890. 7 T. R. 337. Roll’s Abr. Vol. 1, p. 291. 2 Sho. R. 138. 1 Rol. R. 2 Wash. 203, Stevens v. White. 4 Bur. 2060. That the circumstances shown of the reputed sufficiency of Willard, when he was received as bail — his total poverty at the time of judgment, and the proximity of one of the plaintiffs to the defendants, and the notorious poverty of Meriam — the certainty that he must have known whether a scire facias was, or wa3 not, brought against Willard ; and his total silence upon the subject, are all facts from which the Jury might infer that the plaintitfs were satisfied with the proceedings of the defendants, and consented to the very neglect they now complain of. And whether they did consent or not, is matter of fact, within the province of the Jury» and not at all a question of law for the Court. The trial proceeds as if the defendants knew all the facts in the original case, and the Crookers were wholly ignorant, whereas they, the defendants, must have received their knowledge from their clients, that is all particular knowledge of facts. The defendants, seeing the plaintiffs often at their office, must be presumed to have received their instructions from time to time.</p> <p>The charge of the Court is incorrect, upon the subject of the probability of Meriam’s being delivered up in discharge of his bail. That probability should have had its full effect in mitigation of damages, if nothing more. 2 Wills. R. 325, Russell v. Palmer. And it seems the plaintiffs viewed that probability something by their offer. 11 Mass. 188. 2 Mass. 526, Burrel v. Lightgow. 12 Mass. 127, Rice et al. v. Hawkins.</p>

<p>A contract made between tbe indorsor and indorsee of a promisory note, at the time of the indorsement, that the indorsee shall not prosecute the maker of the note within a certain limited time, takes the case out of the law merchant; and if, at the expiration of such time, the indorsee, use due-diligence in his pursuit of the maker of the note, and fail of collecting it, the indorsor is liable.</p> <p>THIS was an action of assumpsit brought by the indorsee of a promissory note against the indorser.</p> <p>On trial upon the general issue, the defendant’s counsel excepted to the opinion of the Court, in excluding certain evidence offered on the part of the defendant. The grounds of the exception will appear from the following case made at the time of the trial:</p> <p>On the trial of said action, the plaintiff produced the note described in his declaration, indorsed in the month of Sept. 1820, as therein set forth, and proved by witnesses that one Theophilus Cushing had agreed with the plaintiff to let him have some money, and procure for him the said note. That Cushing paid the defendant .for said note, and Marsh paid Cushing. That Marsh, the plaintiff, requested the witness to procure the note to be indorsed by Badcock, the defendant, that he (Cushing) told the defendant that the note was for Marsh, and the defendant requested Cushing to inforin Marsh that he had agreed to wait on Porter, the maker of the note, until the first of March, 1821, a year from the date of the note, and requested no cost made on the note till the year expired. And that the defendant indorsed the note blank, and Marsh was informed of the agreement made with Porter and of the defendant’s request aforesaid. And it was further proved that Marsh informed Mr. Lyman, his attorney, with whom he left said note for collection, that such was the agreement upon which he received said note. That the defendant, after Porter became insolvent, and on the day of his commitment to prison, was notified for the first time that the note was not paid, and that Porter was going to gaol on the execution issued upon the judgment rendered upon said note, and that the defendant told said Porter, when he came to be committed to gaol on said execution, to go home ; for he, the defendant, was holden to pay the note. That when said Porter swore out of gaol, the said defendant told the plaintiff’s attorney ¡that he was not holden to pay said note as indorser, but did assist in trying to prevent Porter’s being admitted to the poor debtor’s oath after being informed by the plaintiff’s attorney that he could not thereby prej - «dice himself. That the defendant then acknowledged that the plaintiff was to sue the note if it was not paid within the year. The plaintiff further proved, that he obtained a confession of judgment on said note, December 19th 1820, with an agreement that execution should not issue till the 1st of March then next following. That on the 21st day of said March, the plaintiff gave out to the • Sheriff an execution upon said judgment, which execution was dated the 5th day of March. That Porter was committed to prison the 4th of April following, and swore out of gaol the 21st of said April.</p> <p>The defendant then offered to show in his defence, that Porter was in good circumstances, and had sufficient personal estate to enable the plaintiff to enforce the collection of his said demand and execution. That till the 7th of said March, said Porter had a farm worth $400, and a yoke of oxen worth $60, which he then sold, and yet had remaining, for several days afterwards, personal estate, such as cattle, horses, colts, carts, &c. that might have been levied upon to to the full amount of said execution, had it been given to an ollh er. To which evidence the counsel for tlie plain-, tiff did object, and the same was excluded by the Court. To which decision, excluding said evidence, the defendant excepted —which exception was allowed.</p> <p>And now, at the same term, the cause came on to be heard on a motion made by the defendant to set aside the verdict which had been returned for the plaintiff and for a new trial.</p> <p>The defendant contends that he ought to have been admitted to prove in his defence, that Porter, the signer of the note, was good and able to respond, and had personal estate sufficient to enforce the collection, had due diligence been used by the plaintiff in issuing execution, and that all delay of the plaintiff in pursuing the maker of the note before notice to the plaintiff of nonpayment, kept the risk upon him, the plaintiff, and he ought not aftet-wards to shift it off upon the defendant.</p> <p>Notice of non-payment was as necessary and as much required by law in this case as if the plaintiff had come back without suit.</p> <p>' Nothing excuses the want of notice back. The defendant had full right to presume the debt wao paid after March 1st, till he had notice of non-payment. Anth. N. P. 49, Copper v. Powell and Willis. Same 68, Miller v. Hackley et al. Same 150, Assignees of Myers and Judah v. Coleman. Doug. 449. 5 Bur. Rep. 2607. 1 T. R. 107, Tindall etal. v Brown. 11 East. 114, Esdail et al. v. Sowerby and Meller.</p> <p>1st. — That the agreement entered into at the time of the sale and transfer of said note, was an independent contract, which should receive a common law construction, and the rules and principles of the law merchant have no application to this case. 4 Mass. 414.</p> <p>2dly. — Notice to an indorsor of a demand, and refusal of payment by the maker, is a personal privilege which the indoi’sor has a perfect right to waive; and in this case, the indorsor, by annexing the above condition at the time of the sale and transfer of the note, and by his conduct at the time the original debtor was committed to gaol, did waive all right to notice of non-payment. Copp v. M’Dougall, 9 Mass. 1. Putnam et al. v. Sullivan et al. 4 Mass. 45. Jones v. Fales, 4 Mass. 245.</p> <p>If an indorser of a bill or note, after it has become due, and not paid by drawer or maker, promise the holder to pay the same, a previous demand on the drawer or maker, and due notice to the indorsor, is to be presumed, and need not be proved. 3 John. 68. 16 John. 152.</p> <p>If an indorsor of a bill or note, after it has become due, and not paid by the drawer or maker, promise the holder to pay the same, a previous demand on the drawer or maker, and due notice to the indorsor, is to be presumed, and need not be proved. 3 John. 68. 16 John. 152.</p> <p>It seems that the defendant, after notice of the refusal of payment on the day of the commitment of the original debtor, and with a full knowledge of all the facts, controlled the demand by ordering the original debtor to go home, and requesting the officer not to commit him to gaol. This it is apprehended is tantamount to a promise to pay the debt.</p> <p>3dly. -The indorsee was bound to use no more than ordinary diligence in prosecuting the maker of the note, and giving out the execution within thirty days after the first day of March, 1821, to wit, on the 21st, was using that due diligence which the law requires.</p>

In Error. In an action on the case for negligence, if it appear that the defendant was not in the exercise of ordinary care and diligence, yet, if it appear that the injury complained of would not have happened, hut for a want of ordinary care and diligence in the plaintiff, the plaintiff is not entitled to recover.