next year has right to offici

ate.

#

That in Dec. A. D. 1781, the plaintiff was duly
chofen a conftable by the town of Killingfworth and
was fworn into office: That in Dec. A. D. 1782, he
was again duly chofen a conftable by faid town:
That on the 15th day of Jan. A. D. 1783, he received
awarrant, directed to the theriff, his deputy, or to either
of the constables of faid Killingsworth, commanding
them to arrest the body of faid Wright, and him have
before
a juftice of the peace, to answer
to a complaint exhibited against him, for going over
to Long-Ifland and having illicit intercouse and com-
merce with the enemies of this and the United States:
That the plaintiff repaired to the dwelling-houfe of
faid Wright, and after making known his business
and demanding admittance, and being refused by the
wife, he broke the door and entered the house, the
husband, faid Wright, not being there, and the wife
committed the facts alledged in the declaration;
and that the plaintiff was afterwards, in faid month of
Jan. fworn as conftable for A. D. 1783.

The point about which the jury doubted and re-
ferred to the court, was-Whether the plaintiff was
then lawful constable and had right to break the door
of faid houfe?

And by the court-The law is fo upon the facts aforefaid, that the plaintiff was lawful constable and had right to break open the door and enter said house; and judgment was for the plaintiff to recover; for although faid Wright was not in the house, the plaintiff had good reason to suppose he was. A conftable being an annual officer, and the plaintiff being duly chofen and fworn constable in Dec. A. D. 1781, and re-chofen again in Dec. A. D. 1782, he continued a lawful constable, although he was not fworn again until afterwards. I. Strange 625, Foot vs. Prows.

This judgment was affirmed in the Supreme Court of Errors.

Anninal officers contine

a

her is chossen. A mayors was to sere by abvermin. who hadd som

They

Hartford County adjourned Superior Court, Nov.
Term, A. D. 1783.

WR

Marsh verf. Deming.

TRIT of error, to reverfe a judgment of the The plaintiff county court in action brought by Deming upon a reverfal, must enter vs. Anne Marth, upon a note dated the 8th of Oct. A. his action at D. 1777, for £42-10-3 lawful money, payable in one the fame court. year with intereft, on which was endorfed, July 6th A. D. 1778, 40-16-0 lawful money; and by the pleadings it appeared to have been paid in continental bills. The county court fcaled the endorsement and gave judgment for the remainder of the note. This was affigned for error, and the judgment was reverfed; because the endorsement ought to have been applied nominally. Deming omitted to enter his original action upon the reverfal, until the term was ended; and at the next fuperior court moved for liberty to enter it, and being objected to; the court determined that it was too late, and ought to have been entered at the fame court the reverfal was.

Brown verf. Talcott.

CTION on book for 204 continental dollars, A fum paid on

uel Talcott, and his clerk, on account of a note which note and not applied, recov the plaintiff owed to faid Col. Talcott; and which ered back in had not been applied on the note; the plaintiff was an action of admitted to his oath upon his book and recovered the book debt. fum demanded.

Windham, adjourned Superior Court, Dec. A. D.

1783.

County Treasurer verf. Biffel.

CIRE FACIAS on a bond for profecution, given In a bond for by faid Biffel upon praying out a writ, in which prosecution,the

after the year is 7

are Arsen

"

1

will not exon

imprisonment one Robbin a negro man was plaintiff; setting forth of the principal in the fcire facias, the judgment and execution recovcrate the bail. ered against said Robbin for coft; and also a commitment of faid Robbin to gaol on faid execution, and that he had taken the poor prifoner's oath, and gone out.

A plaintiff may amend his writ

To this declaration a demurrer was given, and the judgment of the court was-That the declaration is fufficient, for the bond given for profecution at the praying out of a writ, is to fecure to the defendant his coft, and nothing but actual payment of the cost will exonerate the bondfman.

Nathan and Amos Arnold verf. Sergeant.

A

CTION for fetting a fire in his own land, and by ftriking out their fences, timber, &c. fuffering it to run into the plaintiffs and burn up

one of the plainti

A new trial cannot be

granted in a quitam action

as to the civil part only without the other.

The defendant plead in abatement-That Amos Arnold one of the plaintiffs was an alien enemy, &c. which plea was judged fufficient. Upon which Nathan Arnold, the other plaintiff paid the coft, and moved to amend his writ by striking out the name of Amos Arnold; which was allowed by the court.

WRI

Hannaball verf. Spalding.

RIT of error to reverse a judgment of the county court, in a quitam profecution, bro't by faid Spalding against faid Hannaball before a juftice, for ftealing a handkerchief of the value of 7; and of which faid Hannaball was convicted before the juftice; and appealed to the county court; and before the county court he was acquitted. Spalding afterwards brought a petition for a new trial; on the ground of having difcovered new evidence; upon which the county court granted a new trial in said caufe as to the civil part only; and upon the new trial Hannaball was found guilty, and the handkerchief judged to be of the value of 5/; and the court gave

judgment for the plaintiff to recover 15/lawful money the three fold damages, and his cost taxed at £9.

Errors affigned are-ift. That faid county court ought not to have granted a new trial; it being a criminal prosecution. 2d. That no new trial could be granted as to one part of the fuit without the other. And, 3d. That faid county court erred in rendering the final judgment in faid caufe. Plea nothing erroneous.

Judgment manifeft error. Upon the ground that a new trial is not to be granted, in a criminal cause, to a profecutor, unless the acquittal was procured by fome fraud or malpractice. That a new trial cannot be granted as to one half of a prosecution, and not the other.

Badcock verf. Steadman.

RIT of error to reverse a judgment of the A note cannot county court, in an action brought by Stead- be an efcrow

WRIT

man against Badcock upon a note.

To which Badcock plead in bar-That he and the plaintiff were traders in company, and upon a fettlement, it was agreed between them, that he fhould take all their company accounts and credits to himself, and collect them for his own ufe; and that he should give faid Steadman therefor, the note on which, &c. and that the note on which, &c. was executed and delivered to faid Steadman upon this exprefs agreement and condition, viz. that the plaintiff fhould deliver to the defendant all the company papers and accounts, and that said note should not be of force, nor be operative as his note, until he should have time fufficient to collect faid debts in order to pay it; and avers that he has not had fufficient time to collect faid accounts and debts, &c.

To this plea in bar, the plaintiff demurred; and judgment was-That the plea is infufficient; and the

delivered di

realy to the promiffee.

On nulteil re-
cord, pled-
the court or-
dered the orig-

inal record of

the justice to be produced

judgment of the county court was affirmed upon the writ of error. For a parole condition cannot be fet up to control a written fecurity executed and delivered to the party himself.

Allin verf. Hifcock.

RIT of error, to reverse a judgment of a juf

WRI

tice.

The defendant plead-That there was no fuch record as fet forth in the writ of error-the plaintiff refor infpection. plied that there was; and prayed the inspection of the record the plaintiff then produced a certified copy from the juftice in proof of the record; and the defendant produced alfo a certified copy from the fame juftice, which was different; upon which the court fent to the justice to bring his original record, in order for inspection; upon which it appeared there was no fuch record as fet forth in the writ of error, and judgment was accordingly, and that the writ abate.

In an action on

a probate bond the breach muft be directly and

Fitch, Judge of Probate verf. John Lothrop, &c.

ACTION upon the administration bond, given for

faid John. In the declaration the penal part and the condition of the bond were fet forth, with an pofitively aver- averment; that the defendants had never paid faid penalty, nor performed the condition of said bond.

red.

To this declaration the defendants demur-And the following exceptions were taken; ift. That a bondsman is not liable; unless the administrator has committed a devaftavit, and in fome point been deficient in his duty; and that this ought to appear from the declaration. 2d. The averment is that the defendants have never performed the conditions of faid bond; which is a negative pregnant, for the adminiftrator may have performed the conditions; although the defendants have not. Judgment that the declaration is infufficient.