sent of the petitioner, that he was unable to furnish a specification, and objected to doing it, and also objected to the entire proceeding; and that the justice now threatens to enforce his orders by proceedings for contempt.

The statute provides that "a justice may accept and record a confession of a debt to a creditor, made by a debtor personally, either with or without antecedent process, as the parties shall agree, and render judgment on such confession"; but that "such judgment shall not be rendered except upon a specification in writing filed with such justice, setting forth the claim upon which the judgment is rendered": Vt. Stats. 1048.

The defendants contend that the clause, "as the parties shall agree," applies only to the clause, "either with or without antecedent process"; that the right given the debtor to confess his indebtedness is not left dependent on the consent of the creditor; that the confession is authorized as the basis of a judgment, and is of no benefit to the debtor unless judgment is had; and that inasmuch as the judgment cannot be entered without a specification, the statute impliedly gives the magistrate the power necessary to procure the specification. We consider these views untenable.

Judgments on confession without antecedent process have no basis other than the statute, and a full compliance with the statute is necessary to their validity, and the provisions authorizing them are to be strictly construed: 11 Ency. of Pl. & Pr. 975; 23 Cyc. 669; 17 Am. & Eng. Ency. of Law, 765, and cases cited. A judgment based upon a confession made without the request or consent 293 of the creditor, and entered at the instance of the debtor alone, will have no validity unless the creditor ratifies or accepts it: 23 Cyc. 703; 17 Am. & Eng. Ency. of Law, 767; 11 Ency. of Pl. & Pr. 981, and cases cited.

We find no justification in the language of our statute for a construction that would make the proceeding compulsory. The effect of the provision regarding an agreement cannot be confined as defendants claim. If there is no agreement for a judgment without antecedent process, there is no basis for the judgment. If the judgment is to be by agreement, the agreement necessarily involves the amount of it. It is clear that the creditor could not be compelled to accept a judgment for less than he claimed, and it certainly was not intended to provide for the rendition of a judgment that would not be binding on the creditor. It is true that if the creditor files a specification of his claim, and the debtor confesses an in

debtedness of that amount, the parties will have agreed on the judgment rendered; but this result cannot be reached by compelling the creditor to file a specification. No authority for this can be deduced from the clause requiring a specification before judgment. This clause assumes that a judgment has been agreed upon, and is designed merely to insure a statement of the cause of action to be merged in it.

It is said, however, that this construction of Vermont Stat. utes, 1048, will render inoperative Vermont Statutes, 1690. The section last named provides that if a debtor, before or after suit commenced, tenders to the creditor a confession of judgment before a justice for the amount of the debt and costs then accrued, and such tender is refused, the creditor shall not recover the costs made after such tender in procuring judgment for his debt. It is argued that "if the consent of the plaintiff is necessary before a judgment can be confessed, it would be impossible to procure a confession of judgment to tender." But what is here spoken of is not the tender of a judgment in being, or of anything having the force of a judgment, but an offer to give judgment, which may be refused, and which, if refused, leaves the judgment still to be obtained.

The provisions of Vermont Statutes, 1048 and 1690, were originally embodied in one section, and remained so until the revision of 1839, when they were given their present form. There was no provision in the earlier statute that made the rendition of the judgment 294 depend on the filing of a specification. What is called in the original act a confession of debt is there given the force of a judgment, for it is provided that on making a record thereof execution shall issue. The statute now provides in terms for the rendition of a judgment on the confession. The first part of the original section authorized judgments on confession, and directed the course to be taken when the confession of indebtedness was agreed to; and the last part prescribed the effect to be given to a tender of such a confession if it was refused. We find nothing in the statute as originally framed, or as it now stands, to indicate the legislative intent contended for by the defendants. This disposes of the only ground on which the right to the writ is questioned.

Demurrer overruled, petition adjudged sufficient, and case held for further proceedings.

Judgments by Confession entered when no default has been taken, no declaration filed, no summons addressed or delivered to a proper

officer to serve, and when no appearance has been made by the plaintiff or defendant, are void: Wilhelm v. Locklar, 46 Fla. 575, 110 Am. St. Rep. 111. If the maker of a note, before suit thereon is filed, signs an answer entering his appearance and confessing judgment, a judgment rendered thereon, without service of process or other appearance, is void: Aultman & Taylor Co. v. Meade, 121 Ky. 241, 123 Am. St. Rep. 193. A pro confesso judgment taken against cotenants, by one of them ignoring a deed made by one of the defendants to another, does not devest the title made by the deed, nor prevent the grantee from claiming his share of the proceeds of the sale: Shuler v. Murphy, 91 Miss. 518, 124 Am. St. Rep. 708. For early decisions on the validity of judgments by confession, see the notes to Lee v. Figg, 99 Am. Dec. 275; Chappel v. Chappel, 64 Am. Dec. 501.

WRIGHT v. TEMPLETON.

[80 Vt. 358, 67 Atl. 817.]

ARRESTING OFFICER, Duty of.-On making an arrest, it is the duty of the officer to take defendant before the subscribing justice of the peace, as commanded in the warrant. (p. 991.)

PROCESS, Return of, Necessity for.-An officer cannot justify under returnable process unless he shows its return, whether in a civil case or a criminal prosecution. (pp. 991, 992.)

ARRESTING OFFICER, When Becomes a Trespasser Ab Initio. If an arresting officer, instead of taking a prisoner before the subscribing justice of the peace, as commanded by the warrant, takes him to another place for the purpose of conferring with the state's attorney as to what further to do with the prisoner, this is such an abuse of process as makes the officer a trespasser ab initio. (p. 992.)

Action of trespass for false imprisonment. At the trial the jury were asked to assess the damages only on the basis that defendant was a trespasser ab initio, and to answer the question whether it was reasonable and proper for the defendant, in the circumstances, to take the plaintiff to Montpelier and keep him there, instead of keeping him at Barre. The last question they answered in the affirmative and fixed the damages at three hundred and sixty dollars. The defendant excepted and appealed.

Senter & Senter, for the defendant.

George W. Wing and John W. Gordon, for the plaintiff.

360 WATSON, J. The defendant undertakes to justify under two warrants issued by a justice of the peace upon complaints of the state's attorney of the county charging criminal offenses. The warrants commanded the officer serving the same to apprehend the plaintiff and have him forth

with before the subscribing justice at Barre. The plaintiff was arrested on the warrants by the defendant, a legally qualified deputy sheriff, at 361 Groton about 9 o'clock in the evening of October 8, 1899, and taken to Barre, arriving there between the hours of 5 and 6 the next morning.

After a short stop in Barre, and without taking the plaintiff before the justice of the peace who issued the warrants, and without communicating with the state's attorney then at his home in Barre, the defendant took the plaintiff to Montpelier, and when there placed him in jail for safekeeping. Later in the forenoon warrants were issued against the plaintiff from the county court, then in session, on informations filed therein for the same offenses. These warrants were put into the defendant's hands by the state's attorney at Montpelier near 10 o'clock, with directions to notify the plaintiff that the proceedings before the justice were dropped, and then to arrest him on the new warrants. Thereupon the defendant let the plaintiff out of jail, notified him as directed by the state's attorney, and arrested him on the warrants issued by the county court. This was 10 o'clock or a little after, the plaintiff having been in jail not far from three hours.

The special question submitted to the jury, "Was it a reasonable and proper thing in point of fact for the defendant to do in the circumstances, to take the plaintiff to Montpelier and keep him there instead of keeping him at Barre?" was answered in the affirmative. This finding, however, is immaterial, since the record shows that the plaintiff was not taken to Montpelier for safekeeping until he could be taken by the defendant before the subscribing magistrate, as commanded in the warrants, but in fact was taken there so the defendant could confer with the state's attorney as to what further to do with the plaintiff. Whether the defendant had authority so to do is not a question of fact, but one of law.

On making the arrest it was the duty of the defendant to take the plaintiff before the subscribing justice of the peace as commanded in the warrants: 2 Hale's Pleas of the Crown, 112. In Ellis v. Cleveland, 54 Vt. 437, it was held that an officer could not justify under a returnable process, unless he show its return; for he is commanded to return the writ, and he shall not be protected by it without showing that he has paid due and full obedience to its commands. To the same effect is Gibson v. Holmes, 78 Vt. 110, 62 Atl. 11. True, in each of these cases the arrest was 362 on civil process. Yet the same doctrine applies in case of a warrant in criminal

process. This was expressly held in Tubbs v. Tukey, 3 Cush. 438, 50 Am. Dec. 744.

The taking of the plaintiff to Montpelier for the purpose shown was such an abuse of process as made the defendant a trespasser ab initio. Consequently the fact that the plaintiff's subsequent discharge there from that arrest was by the direction of the state's attorney does not relieve the defendant from liability in this action.

Judgment affirmed.

The Duty of an Arresting Officer to take his prisoner before a magistrate promptly is discussed in Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 598; Burk v. Howley, 179 Pa. 539, 57 Am. St. Rep. 607; Leger v. Warren, 62 Ohio St. 500, 78 Am. St. Rep. 738.

Abuse of Process by Trespass Ab Initio is the subject of a note to Barrett v. White, 14 Am. Dec. 365. What is an abuse of lawful process and the liability therefor are discussed in the note to Bradshaw v. Frazier, 86 Am. St. Rep. 397.

What Amounts to False Imprisonment is the subject of a note to Hebrew v. Pulis, 118 Am. St. Rep. 719.

STATE v. SARGOOD.

[80 Vt. 412, 68 Atl. 51.]

RES JUDICATA.-A Judgment in a Criminal Case is generally admissible and conclusive evidence in another criminal case against the defendant as to any fact determined by the judgment. (p. 993.)

JUDGMENT OF CONVICTION, Facts of Which Evidence in Another Prosecution.-If, in a prosecution for attempt to poison certain persons, the state attempts to connect the accused with the offense of poisoning certain colts by showing the purposes and motives involving both offenses to be the same, the record of the conviction of the accused on the charge of poisoning the colts is admissible, and conclusive that he did poison them. (p. 993.)

NEW TRIAL-Newly Discovered Evidence-Evidence of a Person Released from Incompetency to Testify.-After his conviction an accused is not entitled to a new trial on the ground that since such conviction his wife has procured a divorce and has become competent to testify, and will testify in his favor. (pp. 993, 994.)

NEW TRIAL—Newly Discovered Evidence-Want of Diligence. A new trial will not be granted after conviction to permit the prisoner to offer testimony tending to discredit the testimony given by a witness at the trial of the charge, where the desirability of discrediting such testimony could not have been overlooked in the ordinary preparation of the defense. (p. 994.)

Information and conviction of attempting to poison Sanford Hicks and wife. There was a motion for a new trial on the