When plaintiff may demand ant's book. SECT. 274. When the defendant, in any action of debt on book, oyer of defend. Shall have pleaded any plea, under which any book account in his favor, against the plaintiff, may be given in evidence, the court on motion of the plaintiff, made in reasonable time, may order that oyer shall be given to the plaintiff of the book of the defendant, either forthwith or within such time as the court may prescribe. When auditors ed. Defendant may plead that plain SECT. 275. In every action of debt on book, wherein the account may be appoint shall be alleged to be above seventeen dollars, the court before which such action is pending except when it is pending before a justice of the peace, may appoint not more than three able, judicious, and disinterested men to audit and adjust the accounts between the parties, who shall have the same power and be sworn and proceed in the same manner as auditors in a proper action of account. The party 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 the return and acceptance of the report, the court shall render judgment that the party in whose favor it is made shall recover the sum found to be due, with his cost, and no appeal shall be allowed on any judgment given on a report of auditors.* SECT. 276. In every action of debt on book, the defendant may tiff owes him. plead, in addition to the general plea, that he owes the plaintiff nothing, that the plaintiff is indebted to him, the defendant, to balance book account; and if it shall so be found on the trial, judg ment shall be rendered for the defendant, to recover of the plaintiff May recover bal- the sum so found to be due, with costs; and the party aggrieved by the judgment, on such plea, shall have the same right of appeal as he would have had if the action had been brought by the defendant, demanding the same sum as that claimed in said plea; but if in any such action brought before a justice of the peace, the defendclaims over fifty ant, in his plea, shall claim a greater balance than fifty dollars, such plea shall not be received unless the party making the same shall cause to be re- enter into a recognizance, with sufficient surety, to the adverse party, in a reasonable sum to remove said cause to, and pursue his plea before, the superior court next to be holden in the county, and to answer all damages in case he shall fail to make his plea good; which recognizance the said justice shall take, and, when taken, he shall record said plea; and if the defendant, having made the plea and having entered into the recognizance aforesaid, shall fail to enter the cause in the docket of the court to which it is removable, ance. Appeal. If defendant dollars, how moved. lender from charging loan on book: whether lender so precluded in taking note, depends on understanding of parties at time. Same. Several suits cannot be maintained on separate items of same book account. Avery v. Fitch, 4. C. R. 362. Book debt will lie for a due bill assigned. Hunt . Pierpont, 27 C. R. 301. Defendant may recover for services, in book debt, protanto, if full performance is waived by plaintiff. Dayton v. Dean, 23 C. R. 99. When there is non-joinder of defendant, rules of other apply. Johnson v. Ransom, 24 C. R. 581. Counts in book debt and assumpsit cannot be joined. 444. actions on simple contract Phelps v. Hunt, 81 C. R. *Court may appoint auditors without previous plea. King v. Lacy, 8 C. R. 499. Duties of auditors. Graves v. Lockwood, 30 C. R. 276. In remonstrance against report of auditors, what degree of certainty is required. Maples v. Avery, 6 C. R. 20. When two auditors appointed, parties not bound to submit case to one alone, but such submission, if made, operates conclusively as waiver of right to subsequent objection. Crone v. Daniels, 20 ̊C. R. 331. Court has no power to interfere with report of auditors on ground of mistake in evidence. Colgrove v. Rockwell, 24 C. R. 584. When auditors may open a case before report returned to court. Welles v. Harris, 31 C. R. 365. within the first three days of the term of such court, the plaintiff a greater sum than fifty dollars, he shall not be entitled to costs; subsequent suit SECT. 277. If any defendant in any action of debt on book, When plaintiff in shall neglect to exhibit his account on trial to be adjusted as afore- shall recover no said, and shall afterwards bring an action against the other party costs. for the recovery of such articles of book debt as might have been adjusted and settled in the trial of the former action, if he recover judgment for such debt, he shall not be allowed any costs, unless he make it appear, to the satisfaction of the court before whom the trial is, that he had no knowledge of the former suit before the time of trial, or was inevitably hindered from appearing and exhibiting his account as aforesaid.* use of lands. SECT. 278. The action of debt on book, shall be a remedy con- 1840. current and co-extensive with the action of general assumpsit for Book debt for the use and occupation of houses, lands, tenements, or other real estate.t IV. OF DISSEISIN. 1864. Persons entitled to the reversion or devised upon on breach of con SECT. 279. Whenever an estate in real estate shall be created by grant or devise, upon express condition, and the reversion of such real estate shall afterwards, and before breach of such condition, by of estate granted grant or devise by the grantor or his heirs, or otherwise, be con- condition, may, veyed to any other person or persons, according to law, such person dition, enter, or or persons, to whom such reversion shall be so conveyed, shall, on have the same breach of such condition, have the same right of entry upon such remedy as the real estate, and the same remedy for such breach, by entry, suit, or otherwise, as the original grantor, or those who legally represent him, would have, if such reversion had not been so conveyed or devised. original grantor. Tender of debt. action of eject SECT. 280. In any action of disseisin instituted by a mortgagee 1840. 1848. of real estate, or by any person holding title under him, to obtain with interest and possession of such estate by virtue of title derived by mortgage, costs, a bar to against the mortgagor, or any person holding title to said estate ment by mortunder him, the defendant may tender the amount of the debt, with the gagee. interest to the time of the tender, and the costs of suit, and such tender shall be a bar to the further prosecution of such action. disseisin to re court may take account be SECT. 281. In every action of disseisin to recover possession of 1848. lands of any defendant in possession, who has purchased the lands in actions of believing that he acquired an unconditional title by such purchase, cover possession or who holds under those who have thus purchased, or who has of day derived a supposed title by devise, inheritance, or otherwise, from an those who have thus purchased, and such defendant, or those under interest. whom he holds, or from whom he claims to have derived a title, have made valuable improvements thereon, under a belief that he or they acquired a good title by such purchase, devise, inheritance, *Defendant may sue pending the plaintiff's suit. Allen v. Rogers, 1 Root, 471. +Not so before this section was enacted. Beach v. Mills, 5 C. R. 493. A second mortgagee may maintain ejectment against the mortgagor. Savage v. Dooley, 28 C. R. 411. tween parties in Defendant to be plaintiff for use of land. or other conveyance, and the verdict of the jury shall be for the plaintiff, the court before whom such action may be pending, shall on motion filed by defendant or other parties in interest, on finding that such improvements have been made under a belief that a good title had been procured and was in the defendant, before rendering final judgment and issuing execution, proceed, by hearing, or committee, according to the rules in equity proceedings, to take an allowed for im- account between the parties in interest; and in taking such account, provements, and there shall be allowed to the defendant, or other parties in interest, the value of such improvements, and to the plaintiff a reasonable sum for the use of said land, as far as the same shall be equitably due from such defendant or parties in interest, and the court shall order and decree the balance so found due to be paid; and final judgment shall not be rendered in said action, nor the same avail the plaintiff for any purpose, until the sum so found due for such improvements be paid; but if the plaintiff shall elect to have the title confirmed in the defendant, and shall, upon the rendition of such verdict, make such election, and file his motion therefor, the court shall, by hearconfirmed in de-ing, or committee, ascertain the sum which ought in equity to be tion of plaintiff. paid by the defendant, or other parties in interest, to the plaintiff, and may, upon payment thereof, confirm the title in the party paying the same. Title may be fendant, by elec Mode of proceeding. Service of pro cess. 1858. er, how to be V. OF FORCIBLE ENTRY AND DETAINER. SECT. 282. Whenever any person shall make forcible entry into any houses, lands or tenements, and with a strong hand shall detain the same, or having made a peaceable entry, without the consent of the actual possessor, shall hold and detain the same with force and strong hand, the party thus ejected, or held out of possession, may exhibit his complaint to a county commissioner and one justice of the peace in the county where such houses, lands, or tenements, are situated, stating the injury of which he complains; and such commissioner and justice shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify and require him to appear at such place as they shall appoint, in the town where the injury complained of was done, within eight days at least, to answer to the matters contained in such complaint; which summons shall be served upon him by reading, or by leaving a copy at his usual place of abode, six days inclusive before the day appointed for trial; and if after service of such summons, the party complained of shall not appear and defend, such commissioner and justice, shall proceed in the same manner as if he were present.* SECT. 283. The issue joined in such complaint shall be tried by the Issue on fordble Court, unless one of the parties, before issue joined, shall move for a entry and detain- jury. If such motion is made, and the party making the same shall give bond with sufficient surety to answer all damages in case he fail to make his plea good, such commissioner and justice, shall make out a warrant, under their hands, directed to the sheriff of tried. *What is necessary to sustain a complaint. Phelps v. Baldwin, 17 C. R. 209; Raymond v. Bell, 18 C. R. 81. A writ of error will lie upon proceedings under this statute, and is generally a supersedeas. Stuart v. Pierce, 1 Root, 75; Dutton v. Tracy, 4 C. R. 79; Dutton v. Tracy, 4 C. R. 365. Various other points. Dutton v. Tracy, 4 C. R. 79. Justice need not be resident of town where land lies. Quinebaug Bank v. Tarbox, 20 C. R. 510. An entry with no greater force than the law implies in trespass not forcible. Gray v. Finch, 23 C. R. 496. moned. the county or his deputy, or to either of the constables of the town where the injury complained of was done, (such officer not being interested in the cause, or so related to either of the parties that he could not judge,) commanding him to summon twelve able and Jury to be sumjudicious electors of the county, qualified to act as jurors, to appear at the time and place appointed for trial; which jury shall be duly impanneled, and sworn according to law, to inquire into the forcible entry, or forcible detainer, complained of; and if a sufficient number of jurors, qualified to sit in the cause, do not appear, the sheriff or constable shall forthwith return a sufficient number of other able and judicious electors of the county, qualified to act as jurors, to fill the panel; and said commissioner and justice, shall proceed to make inquiry and shall hear all the proper evidence offered by the parties; and if the jury find that a forcible entry has been made into the Judgment. houses, lands, or tenements, or that the same are detained with force and strong hand, as complained of, such commissioner and justice shall render judgment that the complainant shall be restored. Talesman. to, and re-seized of, the premises, and shall award a writ of restitu- Writ of restitu tion accordingly; and the complainant shall recover his lawful tion. costs, of the person or persons complained of, and execution shall be granted therefor accordingly; but if the jury shall find the person or persons complained of not guilty, costs shall be taxed in their favor against the complainant, and execution granted for the same.* 1854. Jurors to be drawn and sum rors in superior court. SECT. 284. Whenever a jury is to be impanneled for the trial of such prosecution the jurors to compose such panel shall be, by the officer to whom the venire is directed, drawn from the jury boxes of moned as are ju the towns in the county, in which the trial is to be had, and shall be summoned, in the same manner, as jurors to serve in the superior court. SECT. 285. Not more than three jurors shall be drawn from the Three jurors only jury box of any town in such case; but in case a sufficient number to be drawn from of the jurors so drawn and summoned, and qualified to sit in the cause shall not appear, the sheriff, deputy sheriff, or constable in attendance upon the court, shall forthwith return a sufficient number of other able and judicious electors of the county, qualified to act as jurors in the case, to fill the panel. one town. ed. SECT. 286. No appeal shall be allowed from the judgment of No appeal allow.. such commissioner and justice, nor shall any complaint or action be Limitation of prosecuted for a forcible entry and detainer, but within six months time. after the making of the entry complained of. in another suit. SECT. 287. The judgment that shall be rendered, in such prose- Judgment no bar cutions, shall not affect the title to such houses, lands, or tenements, and shall not be a bar to a proper action brought for the trial of the same. SECT. 288. The party aggrieved may recover treble damages, Treble damages and costs of suit by action of trespass, against the defendant or de-recoverable. fendants, if it be found by verdict of the jury, or otherwise, in due form of law, that he or they entered into houses, lands, or tenements, by force, or, after entry, held the same by force.t Either party may peremptorily challenge two jurors. Quinebaug Bank v. Tarbox, 90 C. R. 510. Misconduct of officer in selecting jurors, good ground. of challenge to the array. Same. Plea in abatement inadmissible, when. Stiles v. Homer, 21 C. R. 507. 1859. Effects in hands VI. OF FOREIGN ATTACHMENT. SECT. 289. Whenever the goods or effects of any person who of trustee, &c., shall be made a defendant in any action at law, or proceeding in may be attached. equity, are concealed in the hands of his attorney, agent, factor, trustee or debtor, so that they cannot be found to be attached, or where a debt is due from any person to such defendant, the plaintiff in such action may insert in his writ a direction to the officer, to leave a true and attested copy thereof, at least twelve days before the session of the court to which it is returnable, with such defendant's attorney, agent, factor, trustee, or debtor, or at the place of his usual abode; and the officer, serving such writ, shall leave a copy thereof, according to such Time and mode direction; and from the time of leaving such copy, all the goods and effects of the defendant in the hands of such attorney, agent, factor, trustee, or debtor, and any debt due from such debtor to the defendant, shall be secured in his hands to pay such judgment as the plaintiff shall recover, and shall not otherwise be disposed of by such attor ney, agent, factor, trustee or debtor. Such service shall be sufficient notice to the defendant to enable the plaintiff to bring the action to trial, when the defendant is not an inhabitant of this state.* of service. 1850. What debts exempted. 1857. Service of pro ness in towns SECT. 290. So much of any debt which has accrued by reason of the personal services or labor of the debtor, as shall not exceed ten dollars, and all benefits which shall have been allowed by any association of persons in this State, towards the support of any member of such association, who, by reason of sickness or infirmity, shall have been rendered incapable of attending to his usual business, shall be exempted, and not liable to be taken on any process of foreign attachment or execution. SECT. 291. Whenever any corporation, engaged in, and transactcess on corpora- ing business in any other town, than the town in which the secretary tions doing busi- or clerk of such corporation resides, shall be named as attorney, other than that agent, factor, trustee, or debtor of the defendant in any action commenced by process of foreign attachment, due and legal service may be made upon such corporation either as specified in the two hundred in which the clerk resides. What is liable to this process. Franklin v. Larabee, 1 Root, 488; Pruden v. Leavenworth, 2 Root, 129; Starr v. Tracy, 2 Root, 528; Woodbridge v. Perkins, 3 Day, 364; Judah v. Judd, 5 Day, 534; Cole v. Wooster, 2 C. R. 203; Enos e. Tuttle, 3 C. R. 27; Risley v. Welles, 5 C. R. 431; Barber v. Hartford Bank, 9 C. R. 407; Knox v. Protection Ins. Co., 9 C. R. 430, Todd v. Hall, 10 C. R. 544; Gager v. Watson, 11 C. R. 168. What not. Spaulding v. Imlay, 1 Root, 551; Benton v. Dutcher, 3 Day, 436; Stanton v. Holmes, 4 Day, 87; Townsend v. Atwater, 5 Day, 298; Green v. Gillett, 5 Day, 485; Church . Knox, 2 C. R. 514; Starr v. Carrington, 3 C. R. 278; Fitch e. Waite, 5 C. R. 117; Risley v. Welles, 5 C. R. 431; Stillman v. Isham, 11 C. R. 124; Grosvenor v. The Farmers and Mechanics Bank, 13 C. R. 104; Jones v. Etna Ins. Co., 14 C. R. 501; Green v. Farmers and Citizens Bank, 25 C. R. 452. Process may be maintained for unliquidated damages on a contract. New Haven Steam Saw Mill Co., v. Fowler, 28 C. R. 103. Sheriff liable to this process for money collected by him in his official capacity. Same. A pecuniary corporation is liable to this process. Knox v. Protection Ins. Co., 9 C. R. 430; Vanbuskirk v. Hartford Ins. Co., 14 C. R. 141. A county is not. Ward t. County of Hartford, 12 C. R. 404. The point of time when debt is attached is the instant of service. Fitch . Waite, 5 C. R. 117. This statute should receive liberal construction for suppression of fraud. Treadway v. Andrews, 20 C. R. 384. What concealment of goods sufficient. Same. Whether this process will lie in all cases where suit brought for breach of contract. Same. Town may be held as garnishee. Bray v. Wallingford, 20 C. R. 416. Writ merely describing garnishee as debtor of defendants attaches only debt payable to all the defendants jointly. McBride v. Protection Ins. Co., 22 C. R. 248. Effect, as to garnishee, of amendment of writ against defendant. Same. |