Abbildungen der Seite
PDF
EPUB

7. By turnpike company against delinquent stockholder. 8. By president and directors of literary fund against treasurer of school commissioners. 9. By jailor against creditor for jail fees. 10. By creditor against debtor for jail fees. 11. By client against attorney for money received. 12. Against sheriff for poor rates collected. 13. Against sheriff for failing to pay or render account of county levy. 14. Against officer for clerk's fees collected. 15. Against officer for not returning execution. 16. Against officer for not making other returns. 17. By creditor against officer for money received under execution.

Return of levy. Demand upon officer. Who is the creditor that can make the motion. As to motion against deputy sheriff. Against sureties of deputy. Against sheriff and his sureties. At what court motion may be made. Amount for which judgment should be rendered.

18. Against officer for surplus arising from sale under execution. 19. Against officer for money received in other cases.

20. By sheriff against deputy for amount of judgment against sheriff for deputy's misconduct.

Judgment must be for misconduct of deputy. Judgment against deputy and sureties jointly or severally. Amount for which judgment should be against deputy and sureties.

21. By sheriff against deputy for money received under execution. 22. By sheriff against deputy for taxes. 23. By sheriff against deputy for other monies. 24. By sureties of sheriff for execution against his lands. 25. By sheriff for execution against lands of deputy and his sureties. 26. By sureties of deputy sheriff for execution against his lands. 27. When the clerk shall indorse that no security is to be taken.

Chap. XXI. Attachments. 1. Against absconding debtor.

By whom complaint should be made. What complaint must be made. For what amount the attachment should be granted. When returnable and to whom directed. Bond taken before granting attachment. How attachment is served. Where debtor absconds on Sunday. Duty of officer to keep property attached. How attachment may be replevied. Proceedings after property is replevied. Proceedings in court where no replevy.

2. Where debt is under $ 20 and debtor removes his effects. 3. Where debtor removes before debt is payable. 4. Where tenant will remove his effects before rent will be payable.

Who may obtain attachment. By whom attachment may be executed. Proceedings after attachment is served.

5. Where tenant has actually removed his effects before rent is due. 6. Attachment against a vessel for penalty incurred by master under act concerning slaves.

CHAP. XXII. Civil causes affecting the public, not cognisable in the general court. 1. Overseers of poor against father of bastard child. 2. Petition by creditor of person whose lands have escheated. 3. Petition by person having demand against commonwealth.

Of what nature demand must be. Effect of act of limitations. Allowance of interest.

Chap. XXIII. Correction of errors by the court in which the same are committed. 1. Amendment on motion.

Rule at common law. Statutes in force before January 1, 1820. Stat. utes now in force. Decisions prior to January 1, 1820. Decisions since January 1, 1820. Where plaintiff may cure error by releasing excess in judgment.

2. Writ of error coram vobis.

Chap. XXIV. Mandamus, prohibition and habeas corpus. 1. Writ of mandamus.

In what cases mandamus will lie. When mandamus does not lie. Case in which statute gives mandamus. Mode of proceeding.

2. Writ of prohibition. 3. Writ of habeas corpus ad subjiciendum.

Chap. XXV. Wrils of error and supersedeas. 1. From circuit courts to county and corporation courts.

Transcript of the record. Who may petition. Nature of petition. Certificate of counsel. Necessity of judgment being final. Within what time petition shall be preferred. When order allowing writ shall be delivered to clerk. Upon what terms writ is issued. How execution is suspended before obtaining supersedeas. When writs of error and supersedeas are returnable. Form and effect of supersedeas. How supersedeas is scrved. Writ of error where petitioner cannot give security. Writ of certiorari. Plea by defendant in error. Death of parties. Effect of a dismission. Judgment of attirmance. Judgment of reversal. Party prevailing recovers costs. Such judgment as court below should have rendered. When a repleader will be awarded. When other proceedings are directed.

2. From court of appeals to circuit courts.

Certificate of counsel. Necessity of judgment being final. Within what time petition shall be preferred. When order allowing writ shall be delivered to clerk. Upon what terms writ is issued. How execution is suspended before obtaining supersedeas. How process is issued and when returnable. Judgment.

3. Proceedings after judgment in appellate court. Taxing costs. Certifying decision of appellate court. Execution according to decision. Where judgment in detinue is affirmed.

[ocr errors]

MISCELLANY.

Liability of Stage Proprietors for not forwarding a passenger. In the supreme court of New York at the sittings in New York, in Noveniber, 1832, Mr. Justice Ruggles presiding, an action was tried against Messrs. Rice & Baker, proprietors of a line of stages running from New York to Albany, under the following circumstances :

The plaintiff had, in March, taken a seat for Albany in one of the defendant's coaches; two carriages went on in company; when they arrived at Hudson, there remained but four of the original passengers; two of these, and five Hudson passengers, were put in a stage coach, upon the ground that the roads had been rendered impassable for coaches by heavy snow drifts, and that the coach going on would only proceed a few miles, when the passenger would be placed in a wagon, and the coach sent back. The driver insisted that the remaining passengers (including the plaintiff) should take an open wagon.

The plaintiff offered to go on in the coach as far as it went, and then, if the roads were found impracticable for that carriage, to take the wagon; but the driver refused, stating that the load would be too great for the horses. The plaintiff then suggested that the bag. gage should be transferred from the coach to the wagon, which would remove that objection ; this course was also urged by the passengers in the coach. The driver, however, refused to accord to it, stating that he had been directed to divide the passengers and baggage equally. The plaintiff then refused to go in the wagon, and hired a hack, but was delayed in reaching Albany considerably behind the arrival of the coach. It appeared that the weather was cold, and the evening dark and stormy. It also appeared, that two stage coaches arrived at Hudson from Albany the same day, which were full of passengers, and that in fact, the road between those two cities were the best part of the whole route. The circumstances were fully stated to Mr. Baker on the following morning, and the plaintiff ordered to discharge the defendants VOL. IX.-NO. XVIII.

62

from all liability, if they would pay the hack bill, ($10) this however, they refused to do.

The defendants attempted to establish, that the contract had been made with the proprietor of another line of coaches, but it appeared that both lines formed a partnership concern.

Mr. Justice Ruggles charged the jury, that the line of the defendants' was one of the post-coaches, and that they were bound, if practicable to send on passengers in these carriages. That it was practicable was evident from the fact, that the coach which they had sent on, had arrived at Albany the same evening.

Also, that the passengers taking seats at New York were entitled to a preference over the way passengers, as the prior contract was made with them. The jury found a verdict in favor of the plaintiff of $ 125.

N. Y. Com. Ado.

A slave of a foreign country coming to Massachusetts is entitled to his liberty. Supreme Judicial Court of Massachusetts ; Dec. 4, 1832. Before Shaw, C. J.; case of the negro Francisco.

A habeas corpus was brought against Mrs. Howard, a lady who had resided in the Island of Cuba, in order to have the body of Francisco, a colored boy, twelve or fourteen years of age, (whom it was alleged that the defendant intended to carry to the Island of Cuba, and there keep or sell as a slave,) brought before the Court.

The defendant, in her return to the habeas corpus, stated in writing, that the boy Francisco was her servant, that he was free, and that she did not claim him as a slave, and submitted herself to such order in the premises as the Court might see fit to make.

To contradict this return, several witnesses were produced, who proved that Mrs. Howard purchased Francisco as a slave, that she had held him as a slave at Havana, and had brought him with her from thence to this country, that she intended to carry him back to Havana, and that she had spoken of him since she had been here, as her slave, her property, &c., and had exhibited great anxiety lest he should be taken away from her while in this country. The evidence was strong to show that Mrs. Howard intended, or had intended, until this habeas corpus was brought, to claim him as her slave in Havana, on her return there.

On behalf of Mrs. Howard, evidence was produced to prove that the boy was very much attached to her, and she to him; that she had treated him with great kindness, and had no design to sell him; and that before leaving the Havana, she was admonished that he would become free on being brought into this country, and that the boy preferred going with her to remaining here.

Curtis, on behalf of Mrs. Howard, contended, that the court ought not to deprive her of the care of a boy, whom she had treated kindly, and who was attached to her, and desirous of going with her; that the boy was free, and would still continue to be free, on going to Havana; that his actual condition would probably be better, if he went with her, than if he was kept in this country; and her counsel further stated that she was perfectly willing to have the question, whether or not the boy should go with her, left to his own decision. In support of this course, he cited a case decided by Chancellor Kent, and another by the Supreme Judicial Court of Massachusetts, in the matter of a writ of habeas corpus, directed to the society of Shakers, to relieve a young person detained by them. The counsel also denied the authority of the court to interfere in a case where the respondent exercised no restraint over the person of the minor, and the minor himself made no complaints of restraint or detainment, but remained with the respondent of his own free will.

Sewall, on the other side, urged that Francisco, on being brought into Massachusetts, became free; that it was evidently Mrs. Howard's intention to make him a slave again, when she arrived at Havana; that he was entitled to the same protection of the court as any other free person in Massachusetts; and that the court ought to interfere to preserve him from slavery. His affection for Mrs. Howard, and his desire of going with her, were no sufficient reasons for sending him to a place where he would inevitably be deprived of his freedom. And the counsel requested, that as Francisco was too young to determine what was for his interest, the court would appoint a guardian to act for him in the case.

Shaw, C. J., after examining Francisco privately, and ascertaining that it was his desire to go with Mrs. Howard, delivered an opinion, of which the following is a very imperfect 'sketch.

The question before the court is one of great importance. The writ of habeas corpus is intended for the protection of personal liberty. If Mrs. Howard, in her return to the writ, had claimed the boy as a slave, I should have ordered him to be discharged from her custody. But it appears from her return to the

« ZurückWeiter »