corded. SECT. 252. The officer shall cause such execution, with his Execution and proper indorsement thereon of such appraisal and his proceedings, doings to be reto be recorded at length in the records of the town clerk of the town where the land or real estate lies, and he shall have thirty-four cents for causing the same to be recorded, with additional fees for his travel; and he shall then return such execution into the office of Execution to be the clerk of the court from whence it issued, there to be kept on file; and all executions, served, returned, and recorded, as aforesaid, shall vest all the title of the debtor in the creditor, his heirs and assigns.* returned. 1832. Levy on equity of redemption of mortgage of both real and person SECT. 253. Whenever the debtor in an execution shall be the owner of the whole or any part of any equity of redemption in a mortgage of both real and personal estate, the creditor in such execution may cause the same to be levied upon the interest of the al estate. debtor, in both said real and personal estate; and such interest shall be appraised, and the whole or any part thereof may be set off to the creditor, in payment or satisfaction of such execution; and appraisers shall be appointed, and all other proceedings shall be had in the same manner as is, or shall be, by law provided for the levy of executions upon real estate. 1831. towns or coun SECT. 254. Whenever any real estate which lies in different towns Levy on real esor counties, is owned by tenants in common or joint tenants, the tate in differnet interest of such tenants in such real estate, may be levied upon by ties, owned by warrant or execution, by any proper officer, who may legally serve different tenants. civil process in any one of the towns or counties in which a part of said estate is situated, and set out in the same manner as if the whole of said estate were situated in any one town; and whenever the interest of a tenant in common, or joint tenant, in any real estate situated in different towns or counties as aforesaid, is levied upon by warrant or execution, in manner aforesaid, the same may be appraised by three indifferent freeholders of either of the towns in which any part of said real estate is situated, to be chosen and appointed in the same manner as is provided by the two hundred and fifty-first section of this act. where the town SECT. 255. Whenever an execution is levied on lands, tenements, 1837. or real estate, and the town in which such lands, tenements, or real Levy on land estate is situated is a party to, or interested in, such execution, if the is interested. parties, or either of them, shall neglect to appoint or agree upon any appraiser or appraisers, the officer making the levy may apply to any justice of the peace in the next adjoining town, who may by law judge between the parties in civil causes, and said justice shall appoint one or more appraisers as the case may require. mistake, too much land taken, remedy is in chancery. Hathaway v. Hemingway, 20 With what strictness requirements of statute must be obeyed. Metcalf v. Gillett, 5 Everything annexed to the freehold presumed included in the appraisal. Payne v. What returns sufficient. Beach v. Camp, 1 Root, 241; Church v. Russell, 2 Root, 434; Eells v. Day, 4 C. R. 95. Metcalf v. Gillet, 5 C. R. 400; Mather v. Chapman, 6 C. R. 54. Booth v. Booth, 7 C. R. 350; Whittlesey v. Starr, 8 C. R. 184; Isham v. Downer, 8 C. R. 232; Fitch v. Smith, 9 C. R. 42; Peck v. Wallace, 9 C. R. 453; Johnson v. Huntington, 13 C. R. 47; Finch . Bishop, 13 C. R. 576. Exact time of recording may be proved by parol, when. Burton v. Pond, 5 Day, 160. Until return of execution to clerk of court, proceedings under levy subject to officer's Officer is not bound to defer the return of execution till its expiration. Hall v. White, 1829. Levy on equity or counties. SECT. 256. Whenever any real estate which lies in different towns of redemption in or counties, is included in the same mortgage deed, the equity of different towns redemption in the whole of the mortgaged premises may be levied upon by warrant or execution, by any proper officer who may legally serve civil process in any one of the towns or counties in which a part of said real estate is situated, in the same manner as if the whole of said mortgaged premises were situated in any one Appraisers may in which any is situated. town. SECT. 257. Whenever the equity of redemption in any real es be of either town tate, situated in different towns or counties as aforesaid, is levied part of said land upon by warrant or execution, in manner aforesaid, the same may be appraised by three indifferent freeholders of either of the towns in which any part of said mortgaged premises is situated, to be chosen and appointed in the same manner as is provided by the two hundred and fifty-first section of this act. Excess of fees levy. SECT. 258. Whenever an execution shall be levied on lands, tenwill not vitiate ements, or other real estate, of the debtor, in all other respects according to law, except that the officer levying such execution shall, by mistake or otherwise, have indorsed on said execution, and have embraced in his levy other and greater fees than the said officer shall be entitled to, such levy shall not on that account be rendered void.* tion. 1826. SECT. 259. On the levy of an execution on real estate, there Fees on execu shall be allowed to each appraiser sixty-seven cents per day; to a surveyor, when necessarily employed, one dollar and fifty cents per day; to each chain-bearer, necessarily employed, sixty-seven cents per day; to a justice of the peace for administering the oath to the appraisers, and for appointing appraisers when necessary, twentyfive cents; to the town clerk for recording the execution and the returns thereon, twenty-five cents for each page thereof, consisting of two hundred and eighty words, which sums shall, by the officer levying such execution, be indorsed thereon, together with his fees. SECT. 260. Whenever any sheriff, deputy sheriff or constable Completion of shall not be re-elected, all levies of execution which shall have been begun by said sheriff, deputy sheriff or constable before the expiration of his office, may be proceeded with by him and service of the same be completed, in the same manner as though he had been reelected and continued in office. 1857. service when officer not re elected. CHAPTER XV. Appointment of auditors. OF CERTAIN PARTICULAR ACTIONS AND PROCEEDINGS. I. OF ACCOUNT. SECT. 261. Whenever a judgment shall be rendered against the defendant in an action of account, that he do account, the court shall appoint not more than three able, disinterested, and judicious men to take the account, who shall be sworn according to law, and shall * Meaning of the word "fees," as used in this section. Camp v. Bates, 12 C. R. 1. appoint the time and place for the hearing, and shall give reasonable notice thereof to the parties; and if the defendant shall refuse to attend at the time and place appointed, and produce his books, and render his account, the auditors shall receive from the plaintiff his statement of the account, and award to him the whole sum he claims to be due.* of auditors. SECT. 262. If the parties appear and produce their books, the Power and duty auditors shall administer an oath to them and examine them respecting their accounts, and inquire of any other lawful witnesses; and if either party shall refuse to be sworn, or to answer any proper questions respecting his account, the auditors may commit him to jail, there to continue till he will consent to be sworn and answer all proper interrogatories; and the auditors shall liquidate and adjust the accounts, and award that the party in whose favor they find the balance to be due, shall recover the same, and shall make report to the same or the next succeeding session of the court. The party Report. in whose favor the report is made, shall pay to the auditors their fees and expenses, which shall be allowed in the bill of cost; and on Auditor's fees. the return and acceptance of the report, the court shall render judg- Judgment. ment that the party in whose favor it is made shall recover the sum found to be due, with his lawful cost. And no appeal shall be allowed on any judgment given on a report of auditors. † peace to take ac SECT. 263. In actions of account brought before justices of the Justice of the peace, when judgment is rendered that the defendant shall account, count and ren they shall take and adjust the account, without the appointment of der judgment. auditors, and render judgment acccordingly. may have ae SECT. 264. An executor, who is also residuary legatee, when all When executor or any part of his legacy is withholden from him by his co-executor, count against may bring his action of account against his co-executor for the re- co-executor. covery thereof; and the like action shall be allowed to residuary legatees against executors. When two persons hold any estate as This action lies, when. Mumford v. Avery, Kirby, 168; Spalding v. Dunlap, 1 Boot, 319; Griggs v. Dodge, 2 Day, 28; Holly . Lockwood, 1 C. R. 180; Smith's Executors. Chapman's Executor, 5 C. R. 14; Oviatt v. Sage, 7 C. R. 95; Stannard v. Whittlesey, 9 C. R. 556; Lacon v. Davenport, 16 C. R. 331; Day v. Lockwood, 24 C. R. 185; Barnum e. Landon, 25 C. R. 137. A special demand need not be alleged or proved. Sturges. Bush, 5 Day, 452. How affected by statute of limitations. Pond v. Pond, 2 Root, 41. What evidence is admissible in this action. Hyde v. Park, 1 Root, 55; Hale v. Hale, 3 Day, 377; Huntington v. Rumnill, 3 Day, 390; Hughes v. Barney, 2 C. B. 704. Whether account and assumpsit may be concurrent remedies. Wetmore v. Woodbridge, Kirby, 164; Wales v. Wetmore, 3 Day, 252; Pettibone v. Pettibone, 4 Day, 175; Tousey v. Preston, 1 C. R. 175. For money had and received, ad computandum, assumpsit not sustainable. Collins v. Phelps, 3 Day, 506. General verdict good when part only of articles mentioned in declaration were received. Sturges v. Bush, 5 Day, 452. What the award of auditors must find. Thomas v. Alsop, 2 Root, 12. What it may find. Dickerson . Whittlesey, 2 Root, 131. Equity has concurrent jurisdiction. See equity. It must be determined whether defendant was the bailiff of plaintiff, before auditors are appointed. Day v. Lockwood, 24 C. R. 185. Matters pleadable in bar, cannot be pleaded before auditors, same. Report may be set aside when auditors have exceeded their commission, or made a mistake upon their own principles. Spaulding v. Dunlap, 1 Root, 413: And when they report that defendant has fully accounted. Spencer v. Usher, 2 Day, 116. May not be set aside for mistake in point of fact. Parker v. Avery, Kirby, 353: Nor On remonstrance to report, auditors may be inquired of. State v. Worthington, 1 Report established by plaintiff's entering remittitur for sums due defendant and im- Distinet and independent claims cannot be applied to extinguish each other. Starkey Peters, 18 C. R. 181. Auditors may take the account up to time of making their report. Day v. Lockwood. 24 C. R. 185. How justice of the peace must proceed. Bulkly. Lewis, 1 Root, 217. common against co-tenant. When tenant in joint tenants, tenants in common, or co-parceners, if one of them shall receive, use, or take benefit of such estate in greater proportion than the amount of his interest in the principal estate, he and his executors or administrators shall be liable to render an account to his co-tenant; and such co-tenant, his executors or administrators, may bring an action of account against such receiver, and recover such sum as he has received more than his proportion as aforesaid. Submission by rule of court. Award. Judgment. Suits may be re tors. II. OF ARBITRATION AND AMICABLE SUITS. SECT. 265. All persons, desiring to end any dispute or controversy by arbitration, may agree that their submission to arbitrators shall be made a rule of the superior court, or of any city court, and may insert their agreement in the submission; and an affidavit of such agreement, being produced and filed in court, shall be entered of record, and a rule of court shall thereupon be made, that the parties shall submit to, and be finally concluded by, such arbitration; or any persons desiring to end a controversy as aforesaid, may personally appear before the superior court, or any city court, and acknowledge that they have mutually agreed to refer all their matters of difference, or any particular dispute, to the arbitrament of cer tain persons, by them agreed on and named, and on their desiring such submission to be made a rule of court the same may be entered of record, and a rule of court shall thereupon be made, that the parties shall submit to and be finally concluded by such arbitration; and in either of the above cases, the award of the arbitrators being returned into court and accepted by the same, judgment shall be rendered thereon for the party in whose favor the award is made, to recover the sum awarded to be paid to him, with additional costs; and execution shall be granted accordingly, if the party against whom the award is made shall neglect or refuse to perform the same.* SECT. 266. When any personal action shall be pending in court, ferred to arbitra- if the parties desire to refer the same to arbitration, each may choose one person to be an arbitrator, and the court may appoint a third; and the award of such arbitrators, returned into court and accepted, * Award by rule of court a good plea in bar to subsequent suits. Park v. Halsey, 2 Root, 100; Bulkley v. Stewart, 1 Day, 130. Where parent submits to arbitration & trespass on his infant child, a gross sum may be awarded for injury to both. Beebe Trafford, Kirby, 215. Deed put into arbitrator's hands for their disposal becomes absolute on the award. Peck v. Goodwin, Kirby, 64. Whether award will be set aside, except for corruption of arbitrators. Parker . Avery, Kirby, 353; Hall v. Merriman, 1 Root, 197; Lewis v. Wildman, 1 Day, 153. A party cannot object to irregularities which affect others only. Nettleton v. Buckingham, 1 Root, 149. Equity will enforce an award, which provides a specific act other than the payment of money. Story v. Norwich and Worcester R. R. Co., 24 C. R. 94. Award need not be under seal, unless required by the submission, or by statute. White v. Fox, 29 C. R. 570. Authority to agent to sign a submission need not be under seal. Same. Administrator may submit to arbitration a claim of his intestate. Alling v. Munson, 2 C. R. 691. Conservator may submit to arbitration the claims of his ward. Hutchins v. Johnson, 12 C. R. 376. Arbitrators, when not restricted by the submission, may award costs at their discretion. Alling v. Munson, 2 C. R. 691. Relation of landlord to one of the parties does not disqualify arbitrator under this section. Fisher v. Tower, 14 C. R. 26. Previous controversy not essential to validity of submission and award. Brown v. Wheeler, 17 C. R. 345. shall be an end of such controversy, and judgment shall be rendered Award and judgpursuant to the same, and execution granted thereon, with costs.* ment. SECT. 267. When disputes shall be submitted to arbitration by Witnesses may act of the parties or rule of court, the necessary witnesses may be be summoned. summoned and sworn, and shall be responsible to the parties for refusing to attend, as in trials at law, and if guilty of false swearing, shall be liable to the penalties of perjury. 1848. Questions in be submitted to SECT. 268. Parties to a question in difference, which might be the subject of an action at law or in equity between such parties, may, difference may, without action, agree upon a case containing the facts upon which by agreement, the controversy depends, and present a submission of the same to the superior the superior court in the county in which either of the parties reside, court or in which a suit might have been brought to determine such controversy; but it must appear by affidavit of the parties, or their respective attornies, that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment thereon as if an action were depending. entered. SECT. 269. Judgment shall be entered as in other cases, but with- Judgment how out including costs. The parties shall, before any such case shall be entered on the docket, pay the court and clerk's fees, as on a trial. SECT. 270. Judgment in such cases may be enforced in the same How enforced. manner as if it had been rendered in an action. by court of er. SECT. 271. If either party to such submission shall desire a re- Questions of law view of any question of law arising thereon, and decided by such may be reviewed superior court, he shall have remedy by motion in error to the supreme rors. court of errors, in the same manner as is now provided by law in case of final judgment in the superior court, and not otherwise. borne. SECT. 272. All costs incurred in any such trial before the superior Costs, by whom court, or upon any such motion in error, shall be borne equally by the parties, claimant and defendant. III. OF BOOK DEBT. witnesses and SECT. 273. In all actions of debt on book, the parties and other Triers to conpersons interested may be witnesses to all matters admissible in sider credit of evidence; and the triers shall well weigh and consider the credit entries in books. of such witnesses, together with the entries of the parties in their respective books, and the other evidence.† *Referees may proceed ex parte if either party, on duc notice, refuse to appear; and their power, being irrevocable, cannot be controlled by agreement between parties. Bray. English, 1 C. R. 493. Referees, after expiration of time limited, cannot act without re-appointment. Belton v. Halsey, 1 Root, 221; Hall v. Hall, 3 C. R. 808. What may be charged on book. Minor e. Erving's Executors, Kirby, 158; Stores, Stores, 1 Root, 139; Stanton v. Wilson, 3 Day, 37; Hall v. Ives, 11 C. R. 469: This action will lie for a demand accruing after the commencement of a former action on book. Avery v. Fitch, 4 C. R. 362. When book debt is not merged in new promise. Humphrey. Oviatt, 8 C. R. 413. When book debt will not lie. Punderson v. Shaw, Kirby, 150; Bradley v. Goodyear, Interest when recoverable. Phenix v. Prindle, Kirby, 207: When not. Smith v. Money lent, charged on book, recoverable in this action. Clark v. Savage, 20 C. R. 8. The taking of memorandum note for such money does not, of itself, preclude |