and incident charges of fettling and felling the eftate. And the refidue to be paid to the feveral creditors who have made out and evidenced their claims according to the directions of this act, as aforefaid, in proportion to the fums to them refpectively owing.

Provided always,That notwithstanding the report of any fuch commithioners or allowances thereof made by the court of probate, it fhall and may be lawful to, and for the executors and administrators aforefaid, to conteft the proof of any debt at the common law,

And no process in law (except for debts due to this ftate, and for fickness and funeral charges) fhall be admitted or allowed against the executors or adminiftrators of any infolvent estate, sa long as the fame fhall be depending as aforefaid.

And in cafe judgment fhall be rendered against any executors and adminiftrators of any infolvent eftate, execution thereon shall be stayed until fuch eftate can be fettled according to this act : And the judgment creditor fhall take no more than his proportion of the faid infolvent eftate with the other creditors; and in cafe that be not paid on the fettlement of the estate, such creditor fhewing the fame, and producing a certificate of his proportion, the court fhall order execution on fuch judgment for no more than the proportion aforefaid.

And whatfoever creditior fhall not make out his or her claims with fuch commiflioners, before the full expiration of the time fet and limited for that purpofe, as aforfaid, fuch creditor fhall forever after be debarred of his or her debt; unless he or she can fhew or find fome other or further eftate of the deceased, not before difcovered and put into the inventory.

The executor or adminiftrator, at any time in the course of the adminiftration of the estate, when he difcovers it to be infufficient to pay the debts, may reprefent it to be in.folvent.

It has been adjudged, that a creditor to any amount cannot be a commiffioner, that while the commiffioners are acting within their power, and duty, no appeal can lie from the decree of the court of probate accepting of their report: and that their jurifdiction is final as it refpects the creditors. It has also been adjudged

adjudged, that where commiffioners exceeded their jurisdiction, as where they took into confideration matters arifing after the decease of the inteftate, that an appeal would lie where the commiffioners charged the claimant with the rents of land of the inteftate, arifing after his death, against a debt due antecedent to his death; and where they allowed the administrator his expenfes for fupporting the children of the deceafed, after his death. has been adjudged, that an appeal will lie in favour of heirs and legatees from the decree of a court of probate, accepting the report of commiffioners allowing a debt to the administrator ; because there is no perfon to contest fuch debt at law, as there is in the cafe of creditors, for the adminiftrator, who alone can con test debts, will not contest his own debt.

. Where there are mutual debts between the deceased, who died infolvent, and a creditor, they must be offsett: and this may be done by the commiffioners. The executor or adminiftrator cannot retain a note and collect the whole, fo as to fubject the creditor by book, to take his average, and in cafe they refuse to make the offsett, they may be compelled by a court of chancery:

and on the question of allowing to apply on the note, a fum fouad due by commiffioners, the adminiftrator or executor, may contek the allowance of the debt. If they fhould put fuch debt in fuit, the court before whom action is brought, may apply the fum allowed By the commiffioners, in payment of the debt. 9 If they collect fuch debt, a court of chancery will decree the payment of the fum which ought to have been offsett.

, Action on note was brought against an executor, who pleaded the infolvency of the eftate, to which the plaintiff replied the dif covery of estate not inventoried, but on demurrer, the court held that a general action in fuch cafe is not maintainable; but a special action adapted to the nature of the cafe.

The executor or adminiftrator are not refponfible for the rents and profits of the real eftate of the deceased, before it was reprefented infolvent, because it goes by law to the heirs or devifees; but they are accountable after the reprefentation of infolvency. VOL. I.

CRAP.

Staniford, &c. vs. Hyde, S. C. 1791. Fairwether vs. Curtice, .C. 1793. . Hofmer vs. Brattle, S. C. 1791. pHofmer vs. Merriam, S. C. 1792. Rofe vs. Clark, & Wife, S. C. 1790. • Jones's Ex'r. vs, Levenworth, S. C. 1789. Storer vs. Hinkley, S. C. 1790.

t

CHAPTER TWENTY-EICHTH.

OF INCORPOREAL PROPERTY.

INCORPOREAL

CORPOREAL property has already been defined to be an ideal right, ifluing out of fubftantial corporeal things, either real or perfonal. In England there are feveral things which are claffed under this defcription: but in this ftate, there is no right which can ftrialy be called incorporeal, but the right of ways: which is a privilege that one has to pass through the land of another. This right may be created in two ways, by prefcription, and by grant. Grants may be exprefs or implied. Au exprefs grant is where the proprietor of land by deed, conveys to another the right of paffing over his land or it may be grounded on a fpecial permiflion, or licence, as where the owner of lands, grants to another the liberty to pass over them to go to mill or to market, or the like. In this cafe the right is confined to the grantee alone, and cannot be affigned. Grants are alfo implied by operation. of law. If a man conveys to me a piece of land, which I cannot approach without paffing through his other lands,-as a piece în the middle of his field, he at the fame time, impliedly gives me a way to it, and I may cross his other land for that purpose: for it is a general maxim, that when the law giveth to one any thing, it giveth impliedly whatever is neceflary to enjoy the fame.

Aright of way by prefcription, is where the inhabitants of a town or village, or the owners or occupiers of a certain farm, have immemorially ufed to crofs fuch a ground, for a particular purpofe. This immemorial ufage fuppofes an original grant, which creates a right of way. Such is the common law : but this country has been fo lately fettled, that the right of prefcription, has hardly had time to operate.

#2 Black. Com. 35. " Co. Lit. 56,

APPENDIX.

APPENDIX.

CONTAINING FORMS AND PRECEDENTS.

KNO

DEFD.

To all People to whom thefe Prefents fhall come Greeting. NOW Ye, that For the confideration of received to my full fatisfaction, of Do give, grant, bargain, fell and confirm unto the faid To have and to hold the above granted and bargained Premifes, with the Appurtenances thereof, unto the faid Heirs and Af. ` figns forever, to and their own proper Ufe and Behoof. And alfo, the faid Do for fel Heirs, Executors and Adminiftrators, cove nant with the faid Heirs and Affigns, that at and until the enfealing of thefe Prefents, well feized of the Premises as a good indefeasible Ef tate in Fee Simple; and have good Right to bargain and fell the fame in Minner and Form as is above written; and that the fame is free of all Incumbrances whatsoever. And furthermore the fid do by these Heirs, forever to Warrant and defend the above the faid Heirs and Affigns, again In witnefs whereof have hereunto

Prefents bind fel

granted an bargained Premifes to
all Claims and Demands whatever.
Hand and Seal the

fet

Signed, fealed and delivered, in Prefence of

Day of

Anno Domini 179

WRIT of SUMMONS.

To the Sheriff of the county of H-his deputy, or to either of the Confta bles of the town of G-in faid county Greeting. By authority of the State of Connecticut, you are hereby commanded to fummen A. 5. of said Gto appear before the Court of Common Pleas to be holden at H-on the Tuesday of then and there to anfwer unto C. D. of Win a plea of which is to the damage of the Plaintiff the fum of lawful money, and to recover the fame with coft, the Plaintiff brings this fuit. Fan not, and make lawful fervice and return. Dated at Juice of Peace.

WRIT of ATTACHMENT.

To the Sheriff of the county of H-his deputy, or to either of the conữables of the town of G-in faid county Greeting. By authority of the State of Connecticut, you are hereby commanded to attach the goods, of cstate of A. B. in faid G-to the value of lawful money, and for want thereof attach his body, and him have to appear before the Court of to be helden at on the day of then and there to answer unto C, D, of faid G-- in a plea of which is to the damage of the Plaintiff' lawful money and to recover the fame with coft, the Plaintiff brings this fuit. fecution are given. Fail not, and make lawful fervice and

Bonds for proreturn. Dated

at

DECLARATIONS.

ASSAULT and BATTERY.

In a plea of trespass, whereupon the plaintiff declares and fays, that on or about the day of at the defendant with force and arms, did an af fault make upon the body of the plaintiff, and did him beat and flrike many tlaws whereby he was much wounded, and greatly injured, to his damage

Information

Information QUI TAM for an ASSAULT and BATTERY; and Warrant.

To A. B. E quire, Justice of the Peace for the county of H-comes C. D. of E-and complains and informs as well in the name of the State of Connecticut as in his own name, that F. G. of on the day of at with force and arms did an affault make upon the body of the complainant, and did him beat, and frike many blows which doings of the faid F G. are against the peace, and contrary to the ftature in fuch cafe provided, and to the damage of the complainant lawful money. Dated at C. D. To the Sheriff &c. By authority of the State of Connecticut, you are hereby commanded forthwith to arreft the body of the above named F. G. of and him bring before me the fubfcriber a justice of the peace for faid county of then and there to answer to the matters contained in the foregoing complaint of C. D. and be therein dealt with according to law. Bonds for profecution are given. Fail not &c.

at

SLANDER.

at

In a plea of the cafe, whereupon the plaintiff declares and fays, that from his youth to the prefent time, he has ever fuftained a good character, and has never been guilty of the crime of theft, yet the defendant minding and intending to injure and destroy the character of the plaintiff, did on malicioufly, fately, and openly, utter and publish in the hearing of fundry citizens of this ftate, the following falfe, and feandalous words of and concerning the plaintiff, (viz.) A.B. (meaning the plaintiff) is a thief and has folen my horfe (meaning the defendant's horse) and the plaintiff fays that by reafon of the defendant's fpeaking fid words, be has been greatly injured in his good name and reputation, has been put to great trouble and expense and exposed to a criminal profecution for the crime of theft, which is to his damage.

FALSE IMPRISONMENT.

In an action of trefpafs, whereupon the plaintiff declares and fays, that the defendant on at did with force and arms an affault make upon the body of the plaintiff, and him did beat and wound, and unlawfully imprifon, and detained and confined him in prifon for the space of twenty-four hours, and then and there did to him many other injuries, against the peace and to his damage.

MALICIOUS PROSECUTION.

In a plea of the cafe, whereupon the plaintiff declares and fays, that he has from his youth to the prefent time, fuftained a good character, and has never been guilty of perjury, of which the defendant was not ignorant, but contriving and malicioufly intending to injure the character of the plaintiff, and bring him to public fcandal and difgrace, did falfely and maliciously and without any reasonable, or probable caufe whatever, on the day of caufe and procure the plaintiff to be informed against, and indicted for the crime of perjury, in the following manner (recite the information or indiƐment with the whole froceedings and the acquittal.) And the plaintiff fays that he was innocent of faid crime of perjury charged in faid information, yet the defendant well knowing the innocence of the plaintiff, but intending to injure him did falselv, and maliciously, and without any reafonable or probable caufe whatever, caufe, and procure the plaintiff to be informed against indicted and profecuted for the crime of perjury as aforefaid, whereby the plaintiff has been greatly injured in his reputation, and has been put to great trouble and colt in his neceffary defence. To his damage.

TRESPASS for DEBAUCHING the PLAINTIFF'S DAUGHTER. In an action of trefpafs, whereupon the plaintiff declares and fays, that the defendant on the and at divers other times fince, did with force

day of

and