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tenant of the freehold; which he has a right to do, if the tenant suffer judgment by default or collude with the demandant.

"Aid-prayer and receipt, are perhaps not entirely confined to the cases above mentioned; but the same reasoning applies in all.

"It is conceived that there can be no injury, but much advantage, in abolishing these dilatory and expensive proceedings, and in allowing the party, like a landlord in ejectment, to be made co-defendants. "In the latter part of the above section, the provisions of the 30th section of the act concerning distresses, &c. (1 R. L. 443,) have been made general, and extended to all actions concerning real estate. The words in italic have been introduced to conform to the exposition of the statute given by the courts), Coleman's Cases, 56; 11 Johns. Rep. 407; 17 do. 112;) to furnish a better opportunity for parties interested, to appear; and to afford as much protection as could be safely given to possessions. An election is also given to the landlord, to appear without there being a default of the tenant, The consequence of requiring such a default, often is, that costs are recovered against the tenant, when the plaintiff can not recover the possession against the landlord."

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[S 16 to 21. Same as § 18 to 23 R. S.] Original note to § 16; "§ 9, 1 R. L. 82, enlarged:" to § 17; "1 R. L. 56, extended to ejectment:" to § 18, 19, 21; "New:" to § 20; "Conformable to practice." "TITLE X.-Proceedings to discover the death of persons, upon whose lives any particular estate may depend.”—[Enacted as Title VIII, R. S.]

[S 1. Same as enacted.] Original note. "1 R. L. 104, § 3, the words or who may be entitled to such custody,' new; proposed as a proper qualification."

[S 2, 3. Same as enacted.] Original note to § 3. "Ib. varied by requiring notice," &c.

[S 4 to 14. Same as enacted.] Original note to § 4; "New" to §6; "New; its utility, it is supposed, will be apparent:" to § 11; “1 R. L. 105, § 4, varied in allowing a commission to be sent, instead of commissioners."

[S 15, 16, 17. Same as enacted.] Original note to § 16; "1 R. L. 106, § 6, varied, in declaring more explicitly and directly the effect of such proof:" to § 17; "new."

[S 18, 19. Same as enacted.] Original note to $19. "§ 5 of same act, varied, by referring the question to the time of commencing the action."

[S 20. Same as enacted.] Original note. "2d and 5th sections of same act, p. 104 and 406, consolidated and extended, so as to reach the case of a party who may have been evicted during the life of a person upon whose life the estate depends, but who may not recover the premises, in consequence of such death having happened before the commencement of the action."

"CHAPTER VI."

"OF PROCEEDINGS IN PERSONAL ACTIONS, BROUGHT FOR THE RECOVERY OF ANY DEBT, OR FOR DAMAGES ONLY."

"TITLE L-Of the commencement of suits and the proceedings therein, until the forming of an issue of fact."

$1. Same as enacted, except that the words in the commencement of subdivision 3, instead of those in the statute, were reported as follows: "3. By filing in the office of the clerk of the court in which such action is brought a declaration," &c.

Original note. "The two first subdivisions are according to the present practice. The third is conformable to the proceedings against attornies and other officers of courts. No reason is perceived why it may not be adopted, in all cases where the plaintiff chooses to proceed without requiring bail. Time and expense will both be saved thereby."

[$ 2. Same as § 2 R. S.] Original note. "To carry out sub. 3 of last §." IS 3. Same as 3 R. S. except that the section as reported also contained the following concluding clause: "if he be described therein with so much certainty as to be identified."] Original note. "Necessary, in consequence of the decision in 7 Cowen, 332. In criminal cases, the party may be described without giving a name, 1 Chitty Cr. L. 40. Cases of tort seem to require the same provisions; and no possible injury is apprehended in any case."

[S 4. Same as enacted.] Original note. "1 R. L. 424, § 14, varied acording to the case in 4 Cow. 450."

[S 5. Same as enacted. Original note. “Ib. varied, to express the construction the act has always received."

[S8 as reported, enacted with alterations § 7 R. S.]

Original note to sub. 1. "(1) The cases on this point are contradictory. Barnes, 116; 2 Term Rep., 757; Strange, 943, are in favor of the rule as stated in the text: 2 H. Bl., 278, is contrary. (2) 6 Term Rep., 336. (3) Tidd, 68; 1 Salk., 99, pl. 8. The reason given for not requiring bail in suits on replevin and bail bonds, &c., is, that the sufficiency of the first bail must be presumed, and if allowed, that there would be bail ad infinitum. This reason has induced the extension of the rule to all cases of the like nature. This section allows bail to be required in penal actions, contrary to the present practice, Tidd, 67. As such suits by common informers are now abrogated, and they must hereafter be brought by public officers, it is conceived that the reason of the exception not only has ceased, but that it furnishes a motive for requiring bail."

Original note to sub. 2. "Tidd 66; Barnes, 79, 80."

Original note to sub. 3. "6 Mod., 14; Cowper, 529; 13 J. R., 331, as to trover; the principle extended to trespass for chattels."

Original note to whole §. "The law concerning arrests stands upon a singular footing in this state. The 14th section of our statute, 1 R. L., 424, is taken from the English act of 13 Car. II, ch. 2 (vide Tidd, 36). But by the act 12 Geo. I, ch. 29, an affidavit of the cause of action was required, in order to hold for bail for any sum over ten

pounds. The decisions on the latter statute have guided our own courts in the construction of our act, which required only that the 'certainty and true cause of action should be particularly expressed.' If this requisite is complied with, it would seem that the statute would be satisfied, whatever was the cause of action. But its general terms have been very properly limited by the court. It would seem highly expedient, that the cases in which a citizen is to be deprived of his liberty should be clearly defined. The above section has been drawn with that view, and is believed to express the rule as now understood, except where a deviation is noted.

"If it be deemed expedient still further to restrain the power of arrest, in analogy to the English act, the following sections would probably attain that end, without inconvenience to the plaintiff."

[S 16. Same as 9 R. S.] Original note. "The authorities for this § are collected in 1 Dunlap, 108."

[S 17. Same as § 10 R. S.]

[S 19 to 23, conformed to the new principle proposed in § 18. But in order to provide for the contingency of the legislature's not adopting § 18, the Revisers in the following note proposed three sections numbered A, B, C, which were enacted A as § 11, B as § 12, and C. as § 13 R. S.

Original note. "In case the legislature should not approve the change in the practice of taking bail, proposed by the preceding sections, the following marked A, B, C, will be found to contain the existing law. They have been prepared as well to afford every opportunity for a fair comparison as to relieve the legislature from the necessity of adopting those above suggested, if they are not approved they may be substituted for the sections from 17 to 33, inclusive, except that 23, 25 and 26 sections are necessary in any event."

Original note to § A. [§ 11 R. S.] "1 R. L., 423, § 12, modified so as to express plainly the obligation of the bail.”

Original note to § B. [§ 12 R. S.] "1 R. L., 519. The proceedings to change and exonerate bail, will be specified in Article 4, Title 6, of this Chapter."

Original note to § C. [§ 13 R. S.] "1 R. L., 324, § 5, varied by autho rizing an appearance, instead of the fiction of common bail."

[S 24. Substantially enacted § 16 R. S.]

Original note. "In 19 J. R., 292, the supreme court held that a sheriff could not prosecute the bail bond, after putting in bail, but that he must pay the debt; to say the least, a very harsh construction, which completely precludes all defense to an action on the bail bond, or to the original action."

[$ 25. Same as enacted § 17 R. S.] Original note. "Vide 2 Cowen, 504."

[S 26, 27. Same as § 18, 19 R. S. § 20 R. S. inserted by the legislature. $28. Substantially same as § 21 R. S.]

Original note. "The proceedings to charge a sheriff, on a neglect to bring in the body, are very embarrassing. He is now required to pay the debt at once, unless under peculiar circumstances. Some relief is obviously necessary, and that proposed in the previous sections is conformable to the course adopted by the supreme court, in 2 Cowen, 504.”

[S 35. Same as enacted § 22.] Original note. "Conformable to practice. Deemed useful to declare it as the foundation for the next section."

[S 36. Substantially same as § 23 R. S.] Original note. "1 R. L. 353, § 11, modified to express the intent."

[S 37. Substantially same as § 24 R. S. § 38. Same as § 25 R. S.] Original note. "1 R. L. 345, § 11. The section referred to, has not been noticed in practice; but the supreme court has made rules on the subject. There seems a propriety in retaining the provision, qualified as here proposed, so as to compel a plaintiff to proceed, after commencing his suit."

[S 39. Same as § 26 R. S.]

Original note. "This is proposed in place of § 2, 1 R. L. 416. A warrant of attorney is never filed in practice, except where a judgment is confessed; and that fact is the best evidence that there is no necessity for that form. It serves no other purpose now, but to make up an item in a bill of costs. It is therefore proposed to abolish it. In the article concerning confessions of judgments, it will be retained and made effectual."

"TITLE II.-Of pleadings and set-offs."

[S 1. Same as enacted.] Original note. "Conformable to § 2. 1 R. L. 64, and § 2, 1 R. L. 153, made general."

[S 2. Same as enacted.] Original note. "Actions of indebitatus assumpsit, are often more convenient than debt."

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[S 3, 4, 5, 6, 7. Same as enacted.] Original note. "§ 23, 1 R. L. 524; slightly varied in language, so as to indicate clearly that it applies to other pleas besides those in abatement, in conformity to the cases, (vide 2 Saunders, 210, e.;) and varied also by substituting the expression, 'some other evidence,' for the probable matter, mentioned in the existing section."

[S 8. Same as enacted.] Original note. "§ 24, 1 R. L. 524, varied by omitting the exception by which a person is allowed to wage his law, in case of non-summons in real actions. It is supposed that compurgators have long since ceased to be of any use in judicial proceedings."

[S 9. Same as enacted. Original note. "§ 10, 1 R. L. 519, omitting by leave of the court as superfluous, and expressing the provision as the courts expound and practise it. See 1 Dunlap, 469.”

[S 10. Same as enacted.] Original note. "§ 1, 1 R. L. 515, extended to a plea of non est factum, in covenant, upon which there seems to be some doubt entertained, on the ground that it is not the general issue; although the supreme court appear to think a notice may be given in covenant. The portion relative to a plea of nil debit to debt on judgment, inserted to supply an omission decided to be such in 8 J. R. 82."

[S 11, 12. Same as enacted.] Original note to § 12. "Residue of same section abbreviated, and varied so as to meet the case of no time of payment being specified in the condition, according to the construction in 7 Term Rep. 124."

[S 13. Same as enacted.] Original note. Ҥ 6, 1 R. L. 518, varied in language to express its intent."

[S 14. Same as enacted.]

Original note. "§ 1, 1 R. L. 115, extended to all public officers, so as to include commissioners of common schools, &c. according to the act of 1820, p. 107, county superintendents of the poor, &c., and also so as to include persons specially deputed by courts or justices, who have always been held within the equity of the statute. The present statute is confined to actions of tort; it is proposed in the above section to extend it to all actions against public officers, as affording them a just and salutary protection."

[S 18. Introductory clause same as enacted.]

[Sub. 1. Same as enacted, except that the words "judgment or," were inserted by the legislature.] Original note. "§ 8. Laws of 1824, 282; 1 R. L. 515. Bonds for the payment of money only, omitted in conformity to 5 J. R. 105."

[Sub. 2. Same as enacted.] Original note. “5 Cowen, 231; 8 J. R., 152."

"Sub. 3. [Same as enacted.] It must be a demand for real estate sold (1); or for personal property delivered, or for money paid, or services done (2); or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation (3).”

Original note. "(1) 14 J. R. 165, 210; 20 do. 338. (2) These expressions are taken from the statute of Massachusetts, 1 vol. p. 451, and happily convey, as far as they go, the spirit of the decisions. Cowper, 56, and 3 J. Ch. R. 351. (3) 2 C. R. 33; 2 J. R. 150."

[Sub. 4. Same as enacted.] Original note. "3 J. C. 145; 19 J. R.

322."

[Sub. 5. Same as enacted.] Original note. "6 Cowen, 615, and cases there collected; 5 J. R. 105; 3 J. R. 150."

[Sub. 6, 7. Same as enacted.] Original note. "6 Cowen, 615; 5 Cowen, 231."

"Sub. 8. [Enacted with variations.] If the action be founded upon a contract which has been assigned by the plaintiff, a demand existing against the plaintiff, at the time of such assignment, and belonging to the defendant in good faith, before notice thereof, may be set off. to the amount of the plaintiff's debt."

Original note. "13 J. R. 9; 1 J. R. 319."

"Sub. 9. [Enacted with variations.] If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff, after it became due, a set-off to the amount of the plaintiff's debt, may be made of a demand existing against any person from whom, or through whom, such plaintiff derived his title to the note or bill, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him."

Original note. "19 J. R. 342."

[Sub. 10. Same as enacted.] Original note. "Supplying a defect in 5 Cowen, 231, and the cases there cited."

[Sub. 11. Same as enacted.] Original note. "Conformable to § 7 of Article 8 of Chapter 5 of 2d part R. S. and to the decision of the supreme court, 1 J. C. 51."

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