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in another country, the plt. q. t., cannot have judgment though not objected to by plea: p. 81, Cro. El. 735; 21 Jac. 1, ch. 4, s. 38; the party grieved, may sue by bill or action, and where he pleases, if there be no statute to restrain him: pp. 81, 83, 59, 60, Cro. El. 645; a mere act of omission is not local : Hob. 251, Semble: an attorney is entitled to his local privilege in the proper court; pp. 49-141: where the offence is committed, partly in one county and partly in another, it may be laid in either, that is, where two facts are necessary to constitute the offence; p. 84, 2 D. & E. 241 : but where only the inducement to the offence has been in one county, and the of fence itself in another, the suit must be in the latter; p. 86, 2 Bos. & P. 381; 4 East. 385: the offence when local, must be proved where tried; p. 141: if a distress be taken in one county and impounded in another, the action may be in either; p. 85, 2 Taunt. 252.

3. Evidence on the general issue. Deft..need not plead the statute of limitations of one year or more, for if the suit be after the time limited, it is void: p. 78, 1 P. Wm. 437: but on nil debet the deft. cannot give evidence of a former recovery for the same offence by the plt. or another, or another suit pending for the same cause of action and offence, nor matter of record; either must be pleaded; pp. 131, 132. Bul. N. P. 197; 1 Stra. 701 and the true time of commencing each action may be proved; pp. 132, 133, 2 Stra. 1169; 2 Leo. 161; the time laid in the declaration, the plt. must prove in part, but he need not prove the whole time therein laid; but he recovers as far as his evidence goes within the time so laid in it; p. 145, Cro. J. 529, Cro. El, 835: a contract must be proved as laid; p. 146: parol evidence is used as in other cases; p. 147.

It is enough the record produced, substantially proves the plea it is adduced to support; a variance in a part not material to the issue will not vitiate; p. 147, Hob. 209.

If the action or information be on a penal statute, and another exempts the party from the penalty, it must be pleaded, and cannot be in evidence on the general issue of not guilty, or nil debet; p. 127, Bul. N. P. 225: aliter, as to a proviso in the same statute, for his case is on the whole statute; p. 127, Bul. N. P, 225: Sir W. Jones, p. 320; but the matter that is properly in evidence on the general issue must be a matter of fact, for if matter of law, it is to be pleaded; pp. 127, 128, 2 Roll. Abr. 683 but as to provisos and exceptions in statutes see ch. 196, a. 3, and in other parts of this work.

4. Who may be plt. &c.; not an infant; p. 19: nor a corporation, unless expressly made plt. by statute. There can be no informers or qui tam plts., but those constituted by the statutes, giving the penalties sued for. They are appointed as

VOL. IX.

58

VOL. V. CH. 148. Art. 14. Con.

VOL. V. CH. 148. Art. 14.

Con.

mere instruments to give effect to penal statutes, not on account of any rights or claims they have: nor is there any common informer or qui tam plts., at common law. But wherever a statute prohibits a thing under a penalty, and that, or any part of it, is given to him who will sue for the same, any person may sue for the penalty, with a few exceptions of those under legal disabilities, as above; pp. 18, 19, 20, Bul. N. P. 198; 2 Stra. 1241 and if an informer in the first statute, and others add penalties and do not name him, still he is an informer; p. 13: If a statute empowers a common informer to sue, he has debt; p. 56 but he cannot sue for less than the whole penalty; p. 119, Bul. N. P. 196; Cro. Jac. 496: but it is said he may sue for his own share only; p. 122: if he sue after the year, it may be well for the king's part, though not for his own; p. 76, Bul. N. P. 195: and an information is commenced as soon as it is in court; p. 135, Cro. El. 261: so is the action as soon as the writ is sued out, if regularly continued; pp. 135, 136, 6 D. & E. 617.

§ 5. Judgment, &c. : plt. or informer may have judgment for part as where he sues several persons jointly, for an offence against a statute, which in its nature may be committed by a single person alone, some of them may be acquitted, and some, by verdict, found guilty; for though the words of the information are joint, yet in judgment of law the charge is several against each deft.; so in cases of torts, less may be found where more is charged. Tort feasances are like trespasses: the verdict may find the deft. guilty of part, and not guilty as to the rest. Aliter as to contracts.

So if a declaration or information charges several offences against a statute, some well made, some not, the plt. may have his judgment for those well charged; pp. 149, 150, 2 Roll. Abr. 707; Cro. J. 104: as debt for usury. One count is, the deft. corruptly lent £40; another lent £20, but did not say corruptly: last bad, on nil debet, and verdict for the plt.: urged he should not have judgment for any of the sums; but judgment was given on the good counts for the plt. ; against him for those defective. If the jury find a general verdict for one penalty, for the plt. and he takes it on a certain count, and that is found bad in law, he is not allowed, afterwards, to apply it to another count, a good one, to which the evidence would warrant the application; p. 152, 3 D. & E. 446.

6. Statutes. Every declaration or information brought to recover a penalty, given by a penal statute, must state and show the plt. qui tam, or informer, grounds his claim on the statute: so he must show how the plt., &c., is entitled under the statute, and the purposes for which the penalty is given in the statute 90, 91: so the deft. must be so described as to appear

to be a person the statute intends, and so one who has incurred the penalty of the statute. 12 Mod. 77, 4 D. & E. 227; 4 Burr. 2018; 2 East. 333.

As to exceptions and provisions in statutes, it is unnecessary to add; so as to reciting and misreciting statutes.

$7 Several matters. Deft cannot plead double. Esp. 125,

4 D. & E. 701.

See

A replication of coven to a plea of a former recovery is good : 139: the government cannot defeat the informer's share. ch. 175, a. 12, s. 22: a license must be pleaded; p. 126.

§ 8. Eden on Injunctions, pp. 18, 19, Lord Thurlow said, 'where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principle intent of the deed, and the penalty only is accessional, and to secure the damage really incurred. But where the parties, instead of securing the performance of the agreement by a penalty, have fixed upon a certain sum by way of liquidated damages, to be paid in the event of the non performance of the agreement, a court of equity (except in certain cases of waste) refuses to interfere in restraining the recovery of such damages.' On these principles, courts of equity interpose to restrain proceedings at law, for the recovery of penalties; but not where forfeitures happen under the by-laws of corporations. See this distinction of damages liquidated or not, largely considered, ch. 28.

VOL. V. CH. 148. Art. 14.

Con.

com❜rs. of the

Lawson and

9. Debt on bond, conditioned to maintain a bastard child, Fairlie & al. in the penalty of $400. The plts. assigned breaches according Almshouse in to the statute, 1 R. L. 518. The defts. (one a surety) the city of pleaded payment of $264 25 cts., and non damnificatus be- New York v. yond that sum defts. proved payment of that sum. Held, Stanbury, 5 the plts. could recover only $135 75 cts, the balance of Cowen, 424, $400, though they proved greater damages on the principal, 425. a surety is not liable beyond the penalty: 2. The judgment on a penal bond, is properly for the penalty, in all cases, except where the demand is reduced by a set-off, within the 1 R. L. 515, 16: 3. If the penalty exceed $250 the plt. is entitled to supreme court costs, though the damages recovered on the assignment of breaches, be less than $250: 4. Interest cannot be taxed as costs on recovery on a bond, where the effect will be to compel the defts. (one a surety) to pay beyond the penalty of the bond. The same principles 6 Cowen, 57, 58, Harvey & al. v. Bardwell & al.

VOL. V.

CH. 149.

Art. 1.
Con.

CHAPTER CXLIX.

DEBT ON PROBATE BONDS, &c.

§ 2 con. This bond is given only to secure a surplus of the 1 Pick. R. 330, sales to be put at interest; the common administration bond secures the other parts of the proceeds of the sales.

1 Pick. 20.

13 Johns. R. 437.

Dubois v. Dubois, 6 Cowen, 494497.

3 Pick. R. 128

Head & al.

Debt on administrator's bond, conditioned to render an inventory, &c. Held, in stating a breach, in not returning one, or in not rendering an account, it must be averred he received some property of the intestate, though not necessary to state the

exact amount.

3 Pick. 265-268, White, Judge, &c. v. Swain, adm'x. After the estate had been settled twenty years, she received a sum of money under the Spanish treaty of Feb. 22, 1819, belonging to the estate of the intestate. The judge sued, at the request of a creditor, whose claim had been ascertained by the commissioners of insolvency. Held, the action lay, and was the proper remedy, being on the probate bond. The main objection was, that the administratrix, as agent of the heirs, claimed the money.

Debt lies on a probate decree of the surrogate, for the payment of a legacy, and against the executor in his own right, and he may set-off a debt due to him, in his own right from the legatee in his own right. Several cases cited: 2. The decree of the surrogate, unappealed from, is conclusive, and determines forever the rights of the parties.' 'It may be enforced by imprisonment, and is certainly evidence of a debt due:' 4. Execution must go against the deft. personally, as for a private debt.' § 13. Debt on probate bond. To support this action for the -148, Dawes, benefit of creditors, there must have been, if the estate be solJudge, &c. v. vent, a judgment ascertaining the debt, and a demand of payment on the administrator; if insolvent, an allowance of the debt by commissioners, a decree of distribution and such demand: 2. If a person domiciled, die in a foreign country, and there is administration, and here ancillary administration, and estate is insolvent, and commissioners appointed and claims allowed by them less than the assets here, the decree of the judge to pay the debt in full, is void, and no breach of the bond to refuse payment: 3. Two subjects of, and domiciled in a foreign country, and one is indebted to the other, and there is an administrator, and, here, an ancillary administrator, such debt, though contracted here, must be settled there: 4. If the estate of the deceased be not sufficient to pay his debts, the funds here collected, ought here to be retained for pro rata payments, on finding abroad what per centage the whole estate will pay 5. The ancillary 'administrator here, is only the dep

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uty or agent of the executor abroad.' The court did not decide that the funds here should, or should not be applied to pay our citizens their whole debt, though its leaning was, that they should view it as a delicate question not settled in this country as late as March 1825: cause turned on other points. It seemed to be agreed the rule is the same in this, and in bankrupt cases. Chancellor Kent has collected many decisions to show such funds, in these cases, ought to be so applied to pay our own American creditors. 37th lecture, pages 329, 330, &c., he cites Holmes v. Remson, 4 Johns. Ch. R. 460, in which, the assignees of a bankrupt in England, included his property in New York, and he thought it was right, as they were first appointed, &c.; but he adds, but whatever consideration might otherwise have been due to the opinion in that case, and to the reasons and decisions on which it rested, the weight of American authority is decidedly the other way; and it now may be considered as a part of the settled jurisprudence of this country, that a prior assignment in bankruptcy, under a foreign law, will not be permitted to prevail against a subsequent attachment by an American creditor of the bankrupt's effects found here.' Cites 1 Harris & Mc Henry; Bush v. Mc Kean; Wallace v. Patterson; same 463, Milne v. Moreton, 6 Binn. 358; 1 Mason, 381; Mc Niel v. Colquhoun; 2 Haywood, 24; Topham v. Chapman, Constitutional R. 288; Taylor v. Geary, Kirby's R. 313; Ingraham v. Geyer, 13 Mass. R. 148; Ogden v. Saunders, 12 Wheat.

218.

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How estate must be considered so, which was conveyed by the deceased to defraud creditors. 3 Pick. R. 168-170, Newcomb, Judge, &c., v. Wing and another.

VOL. V.

CH. 149.
Art. 1.

Con.

291-293.

$5 con. Debt on probate bond, special pleadings-Judge ART. 2. sued. Principal (executor) and sureties, after oyer had, plead Con. Winship, executor, omnia performavit. The plt. replied, 16 Mass. R. the executor did not account for certain property, valued in the inventory at $2,000. The defts. rejoined that the executor did account therefor, charging himself with $878, the proceeds thereof, and tendered an issue to the country. The plt. did not join it, but in his surrejoinder alleged the property was taken and sold on an execution against the executor; that he ought to have sold it for the full value, and not to have suffered it to be taken and sold on execution, and that he has not accounted for the full value thereof, as he ought, &c. Surrejoinder, held bad; on special demurrer thereto, stating causes. 1. Plt. did not, as he ought, join issue, &c. : 2. Did not confess the account, &c., in the rejoinder, nor avoid it, &c., but alleged matter foreign thereto : 3. Departure from the replication, &c., repeating the sale, &c., stated in the surrejoinder,

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