practice the constable endorses a return on the warrant, the law does not require it; but it seems useful and proper."

66

[S 22. Same as § 25 R. S., except that the concluding words after commenced," were added by the legislature.]

Original note. "New. The control of the justice and constable over the defendant is now wholly undefined, except by the vague expression in the 5th section, and that the constable serving such warrant shall detain the defendant in his custody, until discharged by due course of law.'"

[S 23, 24, 25, 26. Same as § 26, 27, 28, 29 R. S., except that in § 25, the words after "disinterested witnesses," were added by the legislature; and except also that in § 26, after "conditioned," the following words of the reported § were stricken out by them: "pay such defendant all damages and costs which he may sustain, by reason of the issuing such attachment, if no judgment be recovered thereon, within three months after the date of such bond."] Original note. "§ 23 and 25 varied to conform to chapter 5 of the second part R. S., and the penalty increased to correspond with the increased jurisdiction." [S 28. Same as § 30 R. S.]

Original note. " 23, varied. The act seems to authorize the seizure of all the defendant's personal property, however trivial the amount. There is great danger of abuse, and there is no more difficulty in a constable's attaching sufficient, than there is in his levying on sufficient to satisfy an execution. In the latter case, he would be punishable for an abuse of his authority; but not, it is presumed, under an attachment, as it gives no information of the amount of the claim."

[$ 29. Same as § 31 R. S., except that the words after "residence of the defendant," were added by the legislature.] Original note. "Varied so as to require an inventory, as well for the protection of the defendant as the constable (10 J. R. 129; 16 J. R. 121).” [S 30. Same as § 32 R. S., except that "three months" in the report, were altered to "six months" in the statute.] Original note. “Varied as to time when judgment shall be obtained." [S 32, 33, 34. Same as § 34, 35, 36 R. S.] "Necessary to carry out the previous provision."

Original note to § 34.

"ARTICLE III.-Of the appearance of parties."

[S 35, 36, 37, 38. Same as § 39, 40, 41, 42 R. S., except that in § 42 R. S. the words "shall not appear on the return day of such process, or if he," were inserted by the legislature.] Original note to § 35. "Declaratory." To § 36. "New." To § 37. "The latter part in conformity to 12 J. R. 434." To § 38. "See 2 Cowen, 430."

[S 39. Same as § 43 R. S.] Original note. "The two preceding sections are new, but in conformity substantially with the existing law."

[S 40, 41. Same as § 44, 45 R. S.] Original note to § 40. "See 9 J. R. 352, 354. To § 41. "New, as settled by supreme court, 1 Cowen, 256; 2 do. 421; 1 do. 113; 2 do. 429; 14 J. R. 369; 15 do. 246."

[S 42. Reported as "new; founded on 9 J. R. 140; 20 do. 309." It was partially adopted in § 46 R. S.]

"ARTICLE IV. Of pleadings and set-offs."

[$ 44. Same as § 47 R. S.] Original note. "New; but intended to avoid the uncertainty, embarrassment and injustice often produced by not joining issue before an adjournment. See 11 John. 69, and 16 do. 180."

[S 45. Same as § 48 R. S.] Original note. "First clause new in form: residue new, but deemed useful."

[S 47, 48. Same as enacted § 49, 50, R. S., except as follows: In 48, sub. 1, the words "judgment or," were inserted by the legislature before "contract."

Original note to Sub. 1. "Laws of 1824, 282, 1 R. L. 515. Bonds for the payment of money only, omitted in conformity to 5 J. R. 105." To Sub. 2. "5 Cowen, 231; 8 J. R. 152." To Sub. 3. "(1) 14 J. R. 165, 210; 20 do. 338. (2) These expressions are taken from the statutes of Massachusetts, v. 1, p. 451, and happily convey, as far as they go, the spirit of the decisions. Cowper 56; 3 J. Ch. R. 351; (3) 2 C. R. 33, 2 J. R. 150." To Sub. 4. "3 J. C. 145; 19 J. R. 322." To Sub. 5. "6 Cowen, 615, and the cases there collected. 5 J. R. 105; 3 do. 150." To Sub. 7. "6 Cowen, 615; 5 do. 231." To Sub. 8. "13 J. R. 9; 1 J. R. 319." To Sub. 9. "19 J. R. 342." To Sub. 10." Supplying a defect noticed in 5 Cowen, 231, and the cases there cited." To Sub. 11. "Conformable to § 7. Art. 8, Ch. 5, Part 2, R. S. and to the decision of the supreme court, 1 J. C. 51."

66

[$ 51. Same as 53 R. S. except that the words after "for his costs," were added by the legislature.] Original note. "§ 8, varied to allow a set-off of a part, in cases where it may be very proper, and never can be unjust to the plaintiff."

[$ 52. Same as § 54 R. S.] Original note. "§1 of act of 1824, excludes such cases from the jurisdiction of justices; and yet it is a matter that cannot be ascertained until the trial. The course here proposed will relieve the subject of much difficulty. (Vide 2 Cowen, 413.)"

$53. Same as § 55 R. S. except that the words "belonging to the defendant," were inserted by the legislature.] Original note. "20 J.

R. 137."

[$ 54. Same as § 56 R. S.] Original note. "By the construction given to the present law, 10 J. R. 366, judgment and execution for a balance due on a set-off, are against the executors, &c. personally. This is calculated to deter the bringing of suits that the executors may be bound to institute. The inconveniences anticipated from the existing law, are, in effect, removed by the provisions of Chapter VI. of the 2d Part R. S. in which ample remedies are given for the collection of debts from administrators, &c. The Revisers have therefore proposed the above change in the present law."

66

[$ 55. Same as § 57 R. S.] Original note. "§ 8 extended to a case clearly within its equity."

[$ 56. Same as § 58 R. S. except that subdivisions 1 and 6, were inserted by the legislature.] Original note to sub. 2. "See Cowen's Treatise, 455."

$57 as reported; not enacted. "§ 57. Judgments rendered cannot be set off against each other in any justice's court." Original note.

"Declaratory of what is perhaps doubtful. The discretion exercised by courts of record, could not be well vested in justices. Vide 14 J. R. 63, and 1 J. Ch. R. 91, for some of the cases of difficulty."

Original note to preceding sections, from § 48 to § 57. "An effort has been made in the preceding sections, to reduce the law of set-off to some certain and precise rules. Generally, they will be found conformable to the decisions of our courts; where they are not, the difference is pointed out and the reason assigned. It has been an object to supply some defects which have been very generally complained of. The obstacles to allowing a set-off against one who is not a party to the record, arising from our present statute, 1 R. L. 515, requiring the court to render judgment for the balance in favor of the defendant, has been removed, by allowing so much to be set off as will meet the plaintiff's demand. It is believed that all the cases to be found in our reports, will fall within some one of the foregoing provisions; so that the law on this subject may hereafter become certain. The greatest difficulty has been experienced in attempting to define liquidated demands. The rule proposed on that subject, although not so precise as might be desired, is perhaps as much so, as the nature of the subject will admit. It is believed, at all events, to express the present law, as construed by the courts. The expression in the present statute, 'if the defendant cannot gainsay the deed or assumption upon which the suit is brought,' has been omitted. It seems to impose, as a condition to the right of set-off, that the defendant shall admit the plaintiff's cause of action. Yet such has never been its construction. On the contrary, our courts have repeatedly said, that our statute is to receive the same interpretation that has been given to the English acts. But the words quoted are not to be found in the British acts of 2 Geo. II, ch. 22, or 8 Geo. II, ch. 24. They seem to have been first introduced in a colonial act, in 1714, (vide 1 V. Schaack, 95,) in which the defendant was required to plead payment, and give notice of set-off in support of it. This was consistent; and the law continued thus until the revision of 1801, when the notice was required to be given with the plea of the general issue, by which the defendant does gainsay' the deed or assumption, and which therefore was a contradiction of the expressions quoted. The Revisers have omitted it, as either calculated to mislead, or as being in direct opposition to the settled and consistent practice."

6

6

"ARTICLE V. Of adjournments."

[S 65. Same as § 67 R. S.] Original note. "See 8 J. R. 426. The words in italics, at the time of,' and 'or of joining,' in conformity to the construction of the supreme court. 2 J. R. 192; 15 do. 492."

[$ 66. Same as § 68 R. S.] Original note. "The existing law fully expressed, (See 2 John. 192; 15 do. 492;) excepting as to suits by warrant; in which there seems no reason for, and many against, allowing such a discretion."

IS 70, 71. Same as § 71, 72 R. S. except that in § 71 the words "for more than one day," before "on the application of the plaintiff," were stricken out by the legislature.] Original note. "Some of these sections are new. They are proposed to prevent, on the one hand, the

vexatious delay of a non-resident plaintiff; and on the other, the oppression of a defendant. The provision respecting testimony, is taken from R. S. Ch. 9, of the First Part, Title 10, § 157."

$ 74 as reported; materially varied § 75 R. S.

Original note. "Part of § 6, and language varied so as to conform to decisions of the supreme court. 2 John. 383; 11 do. 442; 9 do. 133; 13 do. 462; 15 do. 432; 12 do. 418; 13 do. 228; 14 do. 341; 2 Cow. 425."

[S 77. Same as enacted, except that the words "within ten days after the time," were substituted by the legislature for "at the time," as reported.]

Original note. "The two last sections are proposed, instead of the provisions on the same subject, in § 5 and 6, of the act of 1824, which are mere transcripts of those contained in § 4 and 5, 1 R. L. 389. The case in 1 Cowen, 253, will show the different construction upon those sections. It is supposed to be very desirable to have one uniform rule in all cases of the like nature. That here proposed seems very equitable, is conformable to the construction given to § 4, in 1 Cow. 246, and is calculated to avoid the difficulties which have heretofore arisen on these perplexing provisions. The provision that the execution should be issued, as soon as it can be, is inserted in conformity to the decision in 1 Cowen, 246. That part of the section requiring that it should have been issued against the person of the defendant, is in conformity to the decision of the supreme court, not reported, and is necessary to provide for those cases in which the person cannot be taken in execution. In such cases, the plaintiff is not injured by the defendant's not appearing, for the remedy against the property remains the same as if he had appeared."

"ARTICLE VI. Of compelling the attendance of witnesses, and of taking the testimony of those who are distant." [Title of Article altered.]

[S 81 as reported; enacted with additions § 82 R. S.] "$ 81. A subpœna may be served, either by a constable, or any other person; and shall be served by reading the same to the witness.”

Original note. "§ 11. The clause in italics new, and conformable to practice, although the existing law prescribes no mode of service."

[$ 84, 85. Same as § 87, 88 R. S., except that the words in § 88 R. S. "but such imprisonment shall not exceed thirty days," were added by the legislature.]

Original note. "The words 'and in default of payment thereof with costs,' and 'of the county, directing him,' new."

[S 86. Same as § 89 R. S.] Original note. "New in form only."

"ARTICLE VII.—Of the trial of issues of fact, and the incidents thereto."

[$ 95, 96, 97. Same as § 91, 92, 93 R. S.] Original note to § 97. "The words in italics by an examination of a witness, or the hearing of any other testimony,' new. See 1 J. R. 142; 1 Cowen, 88, 235."

[$ 98. Same as § 94 R. S., except that the words "and not exempt from serving on juries in courts of record," were inserted by the legislature.]

Original note. "§ 10, varied. The utility of the existing difference in the number of jurors, in the cases where the demand is under

twenty-five dollars, and where it exceeds that amount, is not perceived. The burthen upon jurors is severe, and tends much to prevent the best qualified from serving. It is believed that a better selection will be made, and the system improved, by reducing the number of jurors, in all cases, to six."

[$ 99. Same as § 95 R. S., except that the words "in writing," after "agree," were stricken out by the legislature.] Original note. "In principle conformable to the existing law."

[S 100, 101, 102, 103, 104. Same as § 98, 99, 100, 101, 102 R. S.] Original note. "§ 100 essentially varied in prescribing the duty of constables; § 101 slightly varied."

[S 108. Enacted with some variations 106 R. S.] _Original note. Ҥ 10, qualified according to the decisions. Vide 20 J. R. 144."

IS 109. Same as enacted § 107 R. S., except that the words "as to the competency of such witness," were added by the legislature.] Original note. "New; conformable to practice in courts of record." $ 110 as reported; materially varied § 108 R. S.

Original note. "§ 10, the words ' and under a sense and belief of your accountability to Him,' and in answer to the questions put to you,' new; inserted for the purpose of conforming the language of the oath to its real intent and its uniform construction, and for the purpose of expressing in itself the test of the competency of the witness."

[S111. Same as § 109 R. S., except that the words “without any meat or drink, except," &c., were reported as follows: "without any food, except such as shall be ordered by me, and without any other drink than water;" and except also that the words after "their verdict," were added by the legislature.] Original note. "§ 10, the form of the oath varied, so as to make it more explicit, and more conformable to actual practice. There will often be an absolute necessity for allowing food." “ARTICLE VIII.—Of judgments, and filing transcripts thereof."

[S 114. Same as § 113 R. S.] Original note. "Slightly varied.” $115 as reported; materially varied § 114 R. S.

Original note. "§ 13, varied by adopting the language of the act of 1818, p. 280, in reference to confessions in the supreme court; which having been the subject of decisions, will be better understood. It is much doubted whether the 3d sub. will not tempt to evasions; and it is submitted whether it should not be omitted, and the 4th extended to all cases of confession."

[S 116. Same as enacted § 115 R. S. except that the words "exceeding twenty-five dollars, exclusive of costs," after "for a sum,” were stricken out by the legislature.] Original note. "Conformable to 2 Cowen, 548."

[S 117. Same as § 118 R. S. except that the words "except where the defendant shall have been arrested by warrant," after "in any cause,' were stricken out by the legislature.] Original note. "New; suggested by a case in 1 Cowen, 84. Some provision seems necessary; the above appears just."

[S 119. Same as § 120 R. S.]

Original note. "Implied in existing law; but doubts exist whether a non-suit may not be entered, which this section is intended to pre