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Watfon verf. Gaylord.

ETITION in chancery to foreclose the equity of A bill of ufury redemption in certain mortgaged premises.

filed against a mortgage deed

for foreclosure,

The refpondent on the second day of the court filed on a petition his complaint; alledging that more than lawful inte- may be received reft was included in, and fecured by faid mortgage, as an anfwer, and prayed the aid of the petitioner's oath; the peti- or a crofs bill. tioner objected to receiving it: The court on confideration determined that as the petition was in chancery, the defendant had right to answer or file his crofs bill, and to have the benefit of the petitioner's oath.

The petitioner objected against being examined on oath touching faid ufury, because if true it would expofe him to a penalty: But by the court the objection was overruled, and the petitioner withdrew his peti

tion.

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State verf. Worthington.

ETURN of auditors in an action of account. Remonftrance-That the auditors had made a miftake, by charging the ftate a large fum in good money nominally, which was paid by faid Worthington in depreciated bills. Objection was made as to any enquiry, refpecting thofe facts; the court determined and did enquire of the auditors the principles upon which they made out the balance.

And said return was accepted.

Upon a remon❤ ftrance to a return of audi

tors the court, will enquire of the auditors upon what principles they made out the

balance.

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Where a judgment is feverable it may be reversed in

part. The if legal part of a bill of coft re

verfed and the judgment affirmed as to the damages and legal coft.

A garnishce

may give in evidence upon

Windham County, Sept. Term, A. D. 1789.

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Dixon verf. Pierce.

RROR. Pierce brought an action to the coun ty court againft Dixon, for riding over his daughter, a minor, whereby fhe was much hurt, and he put to coft in her cure. Verdict and judgment was, that the plaintiff in said action recover fourteen fhillings damage, and coft: Coft taxed at £5:17:3

Error affigned-That no more coft than damages ought to have been allowed. Plea nothing erroneous.

Judgment-Manifeft errror; and judgment reverfed as to the coft over the fum of the damages.

This is a cafe within the ftatute, where no more coft than damages is to be recovered; and as the feverance may be made, the court reverfed the judgment only as to that part which was illegal, viz. all the coft over the fum of the damages.

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Dewit verf. Baldwin.

CIRE FACIAS against Baldwin as debtor to one

the fcire facias, was clofed to the jury. Queftion was put to the what the ab- court, whether fuch a caufe might be tried by the ju fconding debt- ry. By the court it may.

or had faid, to

his indebted

disprove his The queftion was-Whether Baldwin owed Dimowing him. ock; what Dimock had faid previous to any controThe plaintiff may introduce verfy was admitted to be given in evidence by the other evidence, defendant, to prove that he did not owe him; on the befides the gar- ground that the plaintiff stood in Dimock's right: and nifhee, to prove the plaintiff was allowed to produce other evidence befides the defendant's teftimony, to prove the indebtAn iffue joined ednefs of the defendant, taking a diftinction between by the parties the cafe in chancery where the petitioner calls upon facias against a the respondent to disclose upon oath, and where the garnifhee, may law lets a party in to teftify for the benefit of both; Be tried by the one is by the act of the plaintiff, the other by act of jucy.

nefs.

upon a fcire

law.

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Stores verf. Stores.

CTION of debt by book. Plea-owe nothing. An order drawn by the Iffue to jury. The book confifted of two ar- plaintiff on a ticles; one for cash paid £4, and one for an order third perfon, drawn in favor of the defendant, on William Camp- for value rebell, for £60 value received.

Question to the court-Whether fuch an order may be charged on book; and whether the plaintiff may be admitted to fwear to it, when in the writing he has acknowledged that he has received the value.

By the court-The order may properly be charged on book, and the plaintiff be allowed to fwear to it, it being an article of commerce; there is a wide difference between an action brought upon an order or bill of exchange, and an action brought for an order or bill of exchange.

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Elderkin verf. Elderkin.

CTION on note, executed at Roxbury in the Maffachusetts, payable to plaintiff or order, where notes are negotiable, and there endorsed to Thomas Lee; faid note dated 20th Oct. 1770.

ceived in favor of the defend

ant, and deliv ered to him, may be charged on book, and the plaintiff be allowed to

fwear to it.

An action in the name of a whofe property is all affign ed to trustees, is not fustainableupon a note the bankrupt

bankrupt,

taken before

Before the commencing of this fuit the plaintiff obtained an act of bankruptcy in his favor, and all his property was affigned to trustees. Plea-Full pay Iffue to the court. Objection, that this ac- cy. tion cannot be maintained in the plaintiff's name: By the court it cannot; and it was withdrawn.

ment.

But the court was of opinion-That an action might be maintained by Mr. Lee, the endorsee in his own name, as the note was executed and endorsed in the state of Maffachusetts, where by law it was negotiable.

In an action by an officer, for goods taken in execution, up

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New-London County, Sept. Term, 1789.

Maples and Monroe verf. Peck.

RROR. Peck was an officer, had an execution in favor of Marcia Maples against faid Monroe and others to ferve and collect-he levied it on on a fpecial un- fome cattle, the property of Monroe, and was adertaking of bout to poft them, and upon the request of the dethe defendant fendants he delivered faid cattle to them to keep, and to keep and redeliver them; took their promise in writing to deliver them to him it is not necef- on the day of upon his demand, as by faid fary to aver receipt or writing, &c. That they never delivered that he posted, faid cattle, although specially demanded on faid day; the judgment whereby he is become liable to pay faid execution, to his damage £90. Demurrer. Judgment of the common pleas-That the declaration was fufficient.

them, nor that

remains in

force unfatisficd.

Errors affigned were-1ft. It appears that the cattle were the property of Monroe, one of the defendants; and it doth not appear that faid Peck ever pofted faid cattle as the law directs. 2d. There is no averment in the declaration that faid judgment and execution remain unpaid and unreverfed. Plea Nothing erroneous.

Judgment-That there is nothing erroneous in the judgment complained of.

By the court-The action is brought upon a fpecial undertaking and promife, The prefumption is, that the officer has done his duty, unless the contrary is averred. The allegations fuppofed to be wanting in the declaration, are not neceffary; and if the defendants would avail themselves of them, they ought to have plead the payment or reverfal in bar, and that the goods were returned to the owner. Same point adjudged in an action brought by Hartshorn, an officer, upon a receipt for a horfe taken on execution, against Halfey, at New-London, Sept. 1784.

This judgment was affirmed in the fupreme court of errors.

Cheesborough verf. Clark and Fanning.

of an execution,

CTION of ejectment. Plea not guilty to jury. It is no objecPlaintiff's title-The levy of an execution upon tion to the title faid Fanning's land; to which levy, three exceptions under the levy were taken by the defendant: 1ft. That by a written that it was taagreement the execution was not to have been taken ken out fooner out fo foon by two months, as it was. 2d. That than it was aWilliam Williams, Efq. who appointed one of the ap-been-nor that greed to have praisers, was not the nearest justice to the land who one of the ap could judge between the parties. 3d. That the ap- praifers, was praiser chofen by the debtor, and agreed to by the tenant to the creditor was tenant to the debtor, and not an indiffer- where both ent perfon.

defendant;

parties knowingly agreed to By the court-As to the first exception fuch agree- have him. ment between the parties is not admiffible on this if- By next affistfue to defeat the title. By next juftice, in the ftatute ant, &c. to be is not meant strictly the nearest, but fome one in the applied to, to appoint an ap town where the land lies. As to the third exception, praiser, is not there is no law that excludes a tenant from being an to be understood strictly appraiser of land, taken on execution; and where the the nearest, but parties having knowingly and understandingly agreed one near by in upon him, as in the prefent cafe, both parties knew the fame town. he was tenant; they are eftopped to fay he is not in

different, especially the debtor, whofe tenant he was, and who chose him.

Verdict and judgment for the plaintiff.

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Iffue to Accord and fatisfaction cannot be given in evidence under the plea of full payment.

The defendant proved that he fold and delivered a quantity of cheese to the teftator, more than to the amount of faid note, which was agreed to be received on faid note.

Judgment for the plaintiff-Because the proof did not anfwer the iffue; he ought to have plead it by way of accord and fatisfaction; no collateral article can be payment of a money debt, although it may be deliver

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