Sidor som bilder


Nature of writ, i. p. 632.
Teste and return, i. p. 632.
Notice of inquiry, i. p. 633.
Countermard of, i. p. 633, 634.
Execution of writ and inquisition, i. p. 634.

Defendant must attend punctually, i. p. 634.
Irregular to execute writ at different time or place, i. p. 634.
Or on a Sunday, i. p. 634.
Delay on part of plaintiff, i. p. 634.
Witnesses may be subpænaed; execution adjourned, i. p. 634.
Default is admission of cause of action, i. p. 635.
Assessment applies to whole declaration, i. p. 635.
Under sheriff may execute writ, i. p. 636.
When by judge at nisi prius, i. p. 636.

Inquisition; signing and filing; i. p. 636.
Setting aside inquisition, i. p. 636.

On what grounds, i. p. 636, 637.
Consequence of admitting improper evidence, i. p. 637.
Writ must first be returned, i. p. 637.

Where attorney prevented from attending, i. p. 638.
Amendments to writ, i. p. 638.

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Vol. 1, p. 59, 2d line from the bottom of the page, strike out “ der of their principal," and insert “payment of debt and costs.”

Vol. 1, p. 58, 3d line from the bottom of the page, for “fieri facias," read “scire fieri."

Vol. 1, p. 8, to note 25, add, “ see 13 Johns. Rep. 97.2 Stark Rep. 256."

Vol. 1, p. 33, to note 66, add, “8 Cow. 178."
Vol. 1, p. 54, to note 61, add, “1 Cow. 63."

Vol. 1, p. 59, to the 5th line from the bottom, add " There is, how. ever, now no longer any recognizance in error, but a bond is substituted by the revised statutes, and scire facias, therefore, appears not to lie against bail in error."*

Vol. 1, p. 60, strike out the first and second lines after “paid,” and insert " costs are now allowed in scire facias, in all cases.”+

Vol. 1, p. 61, after the 4th line from the bottom of the “ If a female defendant marry at any time before verdict rendered, or before interlocutory judgment, her husband may, on his own application, or on the application of the plaintiff, be made a co-defendant, on the order of a judge of the court ; but if such husband be made a defendant on the application of the plaintiff, he shall have the same right to contest the fact of his marriage as if the suit had been originally brought against him as husband of such female defendant." I

Vol. 1, p. 169, 5th line from the top, for “Canandaigua,” read “ Ge. neva.”ll

Vol. 1, p. 266, 11th line from the top, after “section,” insert “where the United States are plaintiffs or petitioners.”

Vol. 1, p. 276, 6th line from the top, for “plaintiff," read “ defendant."

Vol. 1, p. 289, note 101, in place of “ Ib." insert · 10 Wheat. Rep."

Vol. 1, p. 363, note 64, for “6 Cowen Rep. 158,” read “ 4 Cowen Rep. 158.”

Vol. 1, p. 368, 2d line, after “ upon," insert " the case."
Vol. 1, p. 371, 5th line, for "attached,” read “retaken.”

Vol. 1, p. 391, 14th line, after “law,” read, “ By a subsequent act the office in Canandaigua has been removed to Geneva, and in addition to

* See 2. R. St. 595, et seq.
† 2 R. St. 613. s. 3.
*? R. St. 388, s. 13.

! Sve laws of 1830), p. 108.
slaus 1930, p. 108, ch. 104, s. 1

the counties above enumerated, it is provided that the sheriffs of the counties of Tompkins and Tioga shall return all process issued out of the supreme court, to the said office at Geneva, in the same manner as they are required to do by the 5th section of the act above cited."*

Vol. 1, p. 395, 15th line, for “defendant,” read“ plaintiff.”
Vol. 1, p. 409, last line, for “ defendant,” read “plaintiff.”
Vol. 1, p. 422, 25th line, for “plaintiff,” read “ defendant."
Vol. 1, p. 425, 3d line, dele “and.”

Vol. 1, p. 432, 22d line,after “ plaintiff,” read,“To obtain his discharge from imprisonment under these provisions, the defendant must apply to a judge for a supersedeas ;t which is obtained in the same manner as a supersedeas for not being charged in execution in due time. It seems that the defendant waives his right to a supersedeas, by afterwards pleading ;ll but that the filing and service of a declaration, after the defendent has become supersedeable, are not cause to prevent him from obtaining a discharge.

Vol. 1, p. 441, 9th line, for “ defendant,” read “plaintiff.”

Vol. 1, p. 443, 13th line, after “abatement,” add, “In one case the court allowed the defendant, upon payment of costs, to amend his plea after replication, demurrer, judgment for the defendant in the supreme court, on the ground that the replication was bad, and reversal in the court of errors, on the ground that the plea was bad. This, it seems, will be allowed, though the defence set up in the plea is unconscionable ; but the rule allowing the amendment must be confined to the particular plea, and will not be extended so as to allow the defendant to add or substitute a new plea."'T

Vol. 1, p. 443, 15th line, for “ defendant,” read “ plaintiff.”

Vol. 1, p. 499, 10th line, for “ad testificandum," read “duces tecum."

Vol. 1, p. 508, 1st line, for “ carried,” read “ called.”

Vol. 1, p. 533, note 84, after “1 Call. Rep. 105," add "5 Cowen Rep. 243.”

Vol. 1, p. 540, to note 33 add “5 Cowen Rep. 106."
Vol. 1, p. 618, 13th line, for 6 absolute," read “ obsolete."
Vol. 1, p. 619, 1st line, for “defendant,” read" default.”

Vol. 1, p. 628, 15th line, dele from “The,” to “hereafter," inclusive, and add :**

* Ib. s. 2.

+ 2 Sellon's Pract. 94. 2 Archb. Pract. 119. 2 Dunlap. Pract. 826.

# See Vol. 2, p. 386, 387. il l East. Rep. 77.

6 1 Arclib. Pract. 120, 121. 2 Dunlar Pract. $?9

6 Cow. Rep. 606. ** Some alteration in the plan of the work, has rendered it necessary to in. sert here, what it was originally iutended to notice elsewhere.

6. The course to be pursued in such cases is particularly pointed out in the following statutory provisions.

• When an action shall be prosecuted in any court of law, upon any bond for the breach of any condition,other than for the payment of money, or shall be prosecuted for any penal sum, for the non-performance of any covenant or written agreement, the plaintiff, in his declaration, shall assign the specific breaches for which the action is brought.'*

• Upon the trial of such action, if the jury find that any assignment of such breaches is true, and that the plaintiff should recover damages therefor, they shall assess such damages, and shall specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them.'t

• If in such action, the plaintiff shall obtain judgment, upon demurrer, or by confession, or by default, a writ of inquiry shall issue to the sheriff' of the county in which the venue is laid, to inquire into the truth of the breaches assigned, and to assess the damages of the plaintiff sustained thereby ; which shall be executed and returned as other writs of' inquiry.'1

Instead of issuing a writ of inquiry, as provided in the last section, the plaintiff inay make up a circuit roll of the pleadings and proceedings in such action, with an entry of an order therein, that the truth of the breaches assigned be inquired into, and the damages sustained thereby be assessed, at the next circuit court to be held in the county in which the venue in such action is laid ; and such circuit court shall proceed thereon, pursuant to such order, in the same manner as in other causes sent to that court to be tried, and shall in like manner return the verdict of the jury thereupon.'"'!

This statute, which was made in favour of defendants, and is highly remedial, is liberally construed by the courts ;; and it is compulsory upon the plaintiff to proceed according to its directions, in all cases coming within its provisions. T

A bond conditioned for the performance of an award is within the statute ;** although the defendant may have revoked the submission,

* R. St. P. 3. Ch. 6. T. 6. s. 5. Vol. 2, p. $ 5 Term Rep. 637. 3 Maule & Selw. 378.

156. 3 Taunt. 75. 2 Wile. 377. 8 Johns, + lb. 8. 6,

Rep. 111. 8 Term Rep. 256.
Ib. s. 7.

T 2. Johns. Cas. 406. 2 Caines' Rep. ! Ib. s. 8. As to the judgment to be 320. 4 Johns. Rep. 213. 5 Term Rep. entered in such cases, the execution, 538. 8 Term Rep. 127. 4 Johns. Rep. and the proceedings by scire facias to 189. 16 Johns. Rep. 209. 1 Sa

58. n. recover damages for further breaches, 1. 6 East. Rep. 614. 2 Wile. 377. See Vol. 2, p. 241, 293, 425, 426. Vol. I, ** 2 Caines' Rep. 320. 6 East. Rep. p. 55, 56, 2. R. St. 378, 379.

613. VOL. II.


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