But where the error consisted in rendering judgment Blanchard v. Wild, against a defendant (who was out of the commonwealth at i Mas. Rep. 342. the time of the service of the writ) without granting one continuance; on reversal of this judgment, costs were allowed: But, in this case, it was the duty of the plaintiff in the original action to have suggested on the record the fact of the defendant's absence out of the commonwealth; for without such suggestion the court could not judicially know the fact. From these decisions, we may infer this distinction, that where the error in fact accrues by the wrong or negligence of the defendant in error, costs will be allowed, but where no wrong or negligence is imputable to him; in such case, costs will not be allowed. Stat. 1784, c. 28, s. 11. 6. If a plaintiff becomes nonsuit in consequence of not procuring a new indorser of his writ, when thereunto ordered by the court, in conformity to the statute; in such Where plaintiff becase, no costs shall be awarded against him. 7. In a scire facias against bail, where the bail are dis comes nonsuit in consequence of not procuring a new indorser. By the Court, in charged without surrendering the principal, no costs are champion v. Noyes, given to the plaintiff on the scire facias. V. Of costs in criminal cases. 1. How costs shall be taxed and payed in criminal cases. 2. Provisions for the disposal of poor convicts in service, for payment of costs of prosecution. 3. Provisions for the liberation of poor convicts from prison, on their giving their note to the county treasurer for the amount of fine and costs. 1. How costs shall be taxed and payed in criminal cases. It is enacted, that in all cases, wherein any costs may arise, in any criminal prosecution, commenced either before the supreme judicial court or court of sessions * in any * Since the enacting of this statute the criminal jurisdiction of the sessions has been transferred to the common pleas. 2 Mas. Rep. 488. Stat. 1791, . 53, 3. 2. county in this commonwealth, the court before whom such prosecution has been or may be so commenced, (having cognizance of the offence) shall have power to allow and tax such costs for justices, officers, and their assistants, jurors and witnesses, and for court and other charges, as have arisen 'or may arise upon such prosecution, and previous to its determination, not exceeding the fees that are or may be stated by law; except in cases which are or may be otherwise provided for by law, and in which a discretionary power is or may be given to the court, whether the person accused be brought to trial or not, or whether he be convicted or acquitted upon trial: And all such costs so taxed, shall be paid out of the county treasury; those costs which are taxed by the sessions, to be charged to the county. And the clerk of each of said courts shall attest and deliver to the county treasurer, copies of all bills of costs allowed by the court before the rising thereof, or as soon after as may be. II. Provisions for the disposal of poor convicts in service, for payment of costs of prosecution. By statute, it is enacted, that where there has been any person convicted for any crime, either in the supreme Such convict may be judicial court, or any court of sessions*, who has been 1799, c. 7. disposed of in service, or liberated on such imprisoned three months for costs of prosecution only, the conditions as the court ficial to the commonwealth. may think most bene- sessions for the county where the person has been imprisoned, may order the sheriff to dispose of such convict in service to any person whomsoever, for a term not exceeding two years, for payment of the costs for which he has been imprisoned; and if such disposal cannot be made, the same court may order the sheriff to liberate such convict on such terms, or on such conditions, as they may think most beneficial to the commonwealth and county. Ibid. And the said court of sessions may, on motion made, order the sheriff of their respective counties, to liberate * Since the enacting of this statute, the criminal jurisdiction of the sessions has been transferred to the common pleas. 花 Court empowered to direct the sheriff to any convict in such county, in manner as aforesaid, after his having been imprisoned three months for costs as effect the liberation aforesaid. Provided nevertheless, that where the costs aforesaid are not obtained by means of the liberation, they shall be paid as is provided by law for the payment of costs where there is no conviction. And the several sheriffs are required duly to execute the aforesaid orders, and to make return of their doings therein to the respective courts. of the convict. Ibid. How costs are to be paid where they are not obtained by the liberation of the con vict. 1802, c. 1. Persons convicted be By an additional act, the powers vested in the courts of sessions* by the statute of 1799, c. 7, are extended to authorize the liberation of persons convicted before a justice fore justices of the of the peace, in the same manner and upon the same con- ed. ditions, as if the persons had been convicted before either of the courts mentioned in the statute of 1799, c. 7. peace may be liberat Stat. 1804, c. 143, s. 16. Of persons convicted of larceny....How they may be disposed of in conditions liberated. In the case of a person convicted of larceny, it is provided, that if such person remain in prison only for costs, and he be unable to pay the same, upon application by the keeper of the jail to any two justices of the quorum, service....Or on what. within the same county, they are empowered to determine the sum to be paid, and to order such prisoner to make satisfaction by service, for such reasonable time not exceeding two years, as they may assign; for which time the keeper may thereupon dispose of such prisoner in service to any citizen of the United States: And if he or she cannot be disposed of after being confined three months, for costs, or fine and costs only, the justices of the court of common pleas within and for the same county, may, at their discretion, order such prisoner to be discharged, upon such security as they may judge proper. III. Provisions for the liberation of poor convicts from prison, on their giving their note to the treasury for the amount of fine and costs. By statute it is enacted, that the justices of the supreme judicial court may, at any term thereof, on mo * Since the passage of this act, the criminal jurisdistion of the sessions is transferred to the common pleas. 1805, c. 69, s. 1, Convicts may be discharged when they have been detained three months for fine and costs. Ibid. s. 2. pose, granted to the common pleas. tion made for that purpose, order the sheriff of any county in which said court may then be holden, to liberate from prison any poor convict who may have been committed to prison by order of said court, when it shall be made to appear to said court, that said convict has lain in prison for the term of three months for fine and costs only, and that he stands committed for no other cause, and that he has not estate sufficient to pay said fine and costs; upon condition, however, that said supreme judicial court shall order such convict to give his own note for the amount of said fine and costs, payable to the treasurer of said county, to the use of said county. So also, by the same statute, the justices of the several courts of common pleas within the commonwealth, are Powers for this pur authorized, at any term of their respective courts, on motion made for that purpose, to order the sheriff of said county to liberate from prison any poor convict, who has been committed to prison by order of any justice of the peace, or of the court of general sessions of the peace, or of the said court of common pleas, within said county, when it shall be made to appear to the said court of common pleas, that said convict has lain in prison for the term of three months, for fine and costs only, and that he stands committed for no other cause, and that he has no estate sufficient to pay said fine and costs; upon condition, however, that said court of common pleas shall order said convict to give his own note for the amount of said fine and costs, payable to the treasurer of said county, to the use of said county. Ibid. s. 3. The same powers granted to the municipal court. So also the judge of the municipal court in the town of Boston has the same power and authority in the county of Suffolk, which is by this act given to the justices of the courts of common pleas. TITLE XL. COVENANT. A COVENANT is an agreement, entered into by deed, to do a direct act, or to omit one. The party who makes the agreement is called the covenantor, and the party with whom such agreement is made, is called the covenantee. The legal remedy for a violation of such agreement denominated an action of covenant, wherein the party injured may recover damages in proportion to the loss sustained. 1. Of covenants considered as express or implied. 2. Of mutual and independent covenants. 3. Of contingent and dependent covenants. 4. Of concurrent covenants. 5. Of covenants secured by penalty, or bond, for performance. 6. Of void and illegal covenants. 7. Of joint and several covenants. 8. Of covenant in reference to assignees. 9. Of covenant in reference to heirs and executors. 10. Of covenants for quiet enjoyment; and to save harmless. 11. Of covenant for repairs. 12. Of covenants of seizin; and a right to convey. 13. Of covenants of warranty. 14. Of the exposition of covenants. 15. Of the pleadings on the part of the plaintiff, in actions of covenant. 16. Of the pleadings on the part of the defendant. 17. Of the damages. 18. Of the judgment. 3 Bl. Com, 156. 2 Selw. 384. |