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lances until the plaintiffs enter into the consolidation rule, and the English
consolidation rule is intended. No favor (as to examine witnesses de bene
esse,) will be granted till this be done. Classon v. Church, 422.

See IMPARLANCE. PRACTICE.

CONSPIRACY.

On an indictment for a conspiracy the conviction of one, when another who

is charged to have conspired with him is dead, and not convicted, is suffi.

cient as to him.
A special verdict offered, being wholly incompetent, was properly refused.
The court may dismiss a jury in a case of misdemeanor, where it appears
after a full experiment that they cannot agree.

The People v. Olcott, 512. See vol. 2, p. 301.

See INDICTMENT.

CONSTITUTION OF THE UNITED STATES.

The prohibition in the 10th section of the first article of the constitution of

the United States, does not extend to the municipal regulations of the
present states, which modify the process and proceedings relative to the
recovery of debts, as establishing jail liberties, 8c.

Holmes v. Lansing, 73. See 446, 535.
Cases and authorities, 75, n. (b), 76, n. (c.)

CONTEMPT.

Bringing Suit in the name of another.
It is a contempt of the process of the court to bring a suit in the name of an-

other without his privity or consent; and in this case an attachment was
granted against a person for so doing, and for costs.

Butterworth v. Stagg, 509. See vol. 2, p. 291.

CONTRACTS.

I. Nature.

1. General division.

2. Optional.
II. Consideration.
III. Construction.
IV. Rescission.
V. Lex loci not applicable to remedy.

1. Nature.

1. General division.

1. All contracts are by specialty or parol ; and if written, and not sealed,
they are parol agreements. Ballard v. Walker, 60-3, 532.

2. Optional.
2. A contract may be optional as to one party, and obligatory on the other.
Thus where A. agreed to deliver to B. by the 1st of May, from 700 to 1000

barrels of meal, for which B. agreed to pay on delivery, at the rate of six
dollars per barrel, and A. delivered 700 barrels, and also before the day
tendered to B. 300 barrels more, to make up the 1000 barrels, which B. re-

it was held that B. was bound to receive and pay for the whole
1000 barrels; the delivery of any quantity between 700 and 1000 barrels,
being at the option of A. only, and for his benefit.

Disborough v. Neilson, 81, 555. Cases and authorities, 82, n. (a.)
3. An agreement for the purchase of a negro boy, with a privilege to the
purchaser to return him within a certain time, is valid.

Giles v. Bradley, 500. See vol. 2, p. 256, n. (a.)

fused;

II. Consideration of.

4. Parol-not necessary to be expressed-may be proved aliunde, 65, n. (a.)

See Supra, I. 2.

IV. Rescission of.

5. A. signed a written agreement, reciting that whereas, he had sold to B. a

lot of land, who had agreed to pay him £300 by a certain day, and to exe-
cute a bond and mortgage to secure the payment; A. therefore, promised
and agreed to deliver to B. a good and sufficient deed for the land, on de-

livery of the bond and mortgage by B.
In an action brought by B. against A., on this agreement, it was held, that

this being a mutual agreement for the sale and purchase, there was a valid

consideration.
And that being a writing sigued by the party to be charged, it was sufficient

under the statute of frauds.
But four years having elapsed from the date of the agreement, before B. gavo

notice to A. that he should insist on the agreement, and five years before
he tendered a performance, on his part, it was presumed that the parties
had rescinded the contract; and though A. had, withi

a year after the
contract, sold and conveyed the land to C., so as to incapacitate himself to
perform his agreement with B., yet that circumstance was not held suffi-
cient to control the legal presumption, that the contract was rescinded.

Ballard v. Walker, 60-3, 532. Cases and authorities, 65, n. (6.)

V. Lex loci not applicable to remedy on.

6. Endorses against the maker of a promissory note given in Connecticut,

where by the lex loci it was not negotiable ; held, that this was no objec-
tion to an action here in the name of the endorsee. The lex loci must be
pleaded subject to the mude of redress by our law.

Lodge v. Phelps, 441. See vol. 1, p. 139, 140, n. (a.)

CO-PARCENERS.

Co-parceners may demise severally in ejectment. A mere servant or bailiff in
the possession of lands is not entitled a notice to quit.

Juck son, ex dem. Fitzroy v. Sample, 449. See vol. 1, p. 231.

CORPORATION.

Of their right to take the lands of Citizens for Corporate

purposes.
Where a special power is granted by statute affecting the property of indi-

viduals, it must be strictly pursued; and it must appear on the face of the

proceedings, that the directions of the statute have been strictly observed.
Where an inquisition taken under the second section of the act, amending

the act to establish the Columbia Turnpike Company, passed March 28,
1700, (sess. 23,) omitted to state a disagreement between the owner of the
lands mentioned, and the company, and that the judge who appointed the
commissioners was not interested, &c.. it was held defective and quashed.

Gilbert v. The Columbia Turnpike Co., 107, 541.

COSTS.

1. Plaintiffs.

1. In debt.

a. On bond conditioned for performance of Covenants.

6. Recovery of £100 and interest as damages.
2. In Trespass.

a. Assault and Battery-Certificate.

b. Quare dom. fregit.

3. In actions by Executors.
II. Defendants.

1. Against Attorney.

2. Against Executor Plaintiff.
III. In special cases.
IV. On new trial.

V. Certificate.
Vol. III.

92

VI. Security for.
VII. When they are a debt under the Insolvent Act.
VIII. Set-off- Judgment against.

I. Plaintiffs.

1. In debt.

a. On bond conditioned for performance of Covenants.
1. On a bond in the penalty of $500, conditioned to perform covenants ; on

the trial, the plaintiff recovered 6 cents only, his judgment must still be for
the penalty, and he is entitled to full costs.

Hodges v. Shufelt, 521. See vol. 2, p. 406, 407, n. (a.)

b. Recovery of £100 and interest, as damages.
2. On a recovery of £100 of debt and interest by way of damages; held,
that the plaintiff is entitled to full costs. Clapp v. Reynolds, 323.

2. In Trespass.

a. Assault and Battery-Certificate.
3. In assault and battery, a certificate to entitle the plaintiff to costs may be
given by the judge after the trial.

Vielle v. Towers, 444. See vol. 1, p. 221.

b. Quare dom. fregit.
4. In trespass qu. dom. fregit, and for an assault and battery, and impreg.

nating plaintiff's daughter, per quod, &c. ; the plaintiff recovered $10.
Motion for costs by the defendant, denied. The plaintiff is entitled to

Walrod v. Spalbergh, 438. See vol. 1, 162.

costs.

3. In actions by Executors.

5. Executors recovering under £10 in this court are not entitled to costs,
nor are they bound to pay costs.

Executors of Mahany v. Fuller, 489. See vol. 2, p. 209.

II. Defendants.

1. Against Attorney.
6. Application for costs against plaintiffs' attorney denied; one of the lessors

resided in this state at the commencement of the suit, and afterwards died.
Defendant ought to have applied for security for costs.

Jackson, ez dem. Lewis v. Powell, 482. See vol. 2, p. 67.

2. Against Executor Plaintiff.

See Supra, I. 3.

III. In special cases.

7. On a removal by habeas corpus, the plaintiff declared before the defendant

appeared and obtained a procedendo for not appearing, he can have no
costs for the declaration in this court, it being premature.

Murray v. Smith, 431. See vol. 1, p. 105.

IV. On new trial.

Seo Dole v. Rensselaer, 458, vol. 1, p. 279.

V. Certificate.
8. In an action of trespass, assault and battery, where the damages found by

the jury are under 5 dollars, the judge, notwithstanding the verdict or
pleadings, may, in his discretiou, refuse a certificate to entitle the plaintiff
to full costs, if he is salisfied, on the evidence, that the assault and bat-

tery were not sufficiently proved. Hunt v. Leon, 140. See 5+3, 557.
Authorities, 140, n. (a.)

See Supra, I. 2, a.

VI. Security for.

9. Security for costs denied, although it appeared that one of the plaintiffs

only resided in this state, and he was confined in jail and insolvent, and
had assigned the cause of action. Pfister f. Macomb v. Gillespie, 470.

VII. When they are a debt under the Insolvent Act.

10. Plaintiff, an insolvent, being discharged pending the suit, the accruing

costs included in a subsequent judgment of nonsuit, are recoverable from
him on the principle decided in the case of Frost v. Carter.

Whitaker v. Cone, 501.
See Frost v. Carter, 449, and Light v. Strang, 543.

VIII. Set-off of Judgment against.

11. On a recovery under £20, the defendant's costs were allowed to be set

off against the sum recovered. Spencer v. White, 430. See vol. 1, p. 102.

COSTS IN THE COURT OF ERRORS.

No costs or damages given in this court in case of a reversal against the party
coming to support the judgment or decree of the court below.

Le Guen v. Gouverneur & Kemball, 605. Seo vol. I, p. 436.

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