Laws

Nat Brev 300; Speer v Post Date: Sun, 27 Jul 2008 19:54:43 +0000
The scire facias ought to recite the whole proceedings in the former action, or at least so much thereof as to make it appear that the judgment is warranted by the statute ; it must then suggest the further breaches, and the same proceedings are to be pursued under the scire facias as in the original action ; but it is not necessary there should be any other judgment than the usual one in a scire facias of an award of executio N 2 1 Western Bank v Sherwood, 29 Barb ( N Y) 383; State v Cooper, 79 Mo 464; State v Frank, 22 Mo App 46 Where, by agreement of the par- ties, the whole penalty has become due because of the nonpayment of an instalment of interest, the law will not permit the obligee to collect it if, on looking at the condition, it is found to be inequitable ; and the obligor's rights will be protected by controlling the execution, according to the law and practice prior to the cod e West- ern Bank v Sherwood, 29 Barb ( N Y) 383- When the sureties on an official bond are bound in different amounts, judgment in an action against them on the bond may be rendered against each of them for the amount for which he is liable and for all the costs, followed by an order that the plaintiff have execution, but not for a larger sum than that which has been found due from the principa L People v Love, 25Cal520 See Cairnes v Knight, 17 Ohio St 68 If judgment is rendered for more than the penalty of the bond, it is erroneous only and not voi d Free- man v Hart, 61 Iowa 525 2 Illinoi S Morhiners v Clinton County, 63 111 526 Indiana Schooley v Stoops, 4 Ind 130 Massachusett S Waldo v Fobes, I Mas S 10; Battey v Holbrook, n Gray (Mas S) 212, 2 Tidd Pr 1108 Michigan, Durfee v Abbott, 50 Mich 479; Bishop v Freeman, 42 Mich 533 Missour I Showles v Freeman, 81 Mo 540 New Hampshire Shepard v Parker, cited i N Pierce v Read, 2 N H 363 New Jerse Y Vreeland v Bruen, 21 N J L 214 Pennsylvania Sparks v Garrigues, 1 Bin N (Pa) 152; Duffy v Lytle, 5 Watts (Pa) 120; Montelius v Mon- telius, Bright (Pa) 79; Cochlin v Co M, ii W N C (Pa) 460 South Carolina Ellis v Sanders, 34 S Car 236 Tennessee Williams v Patterson, 2 Overt. (Tenn) 231 Ver Mont Williams v Willson, I Vt 266 West VirginiaState v Purcell, 31 W Va 44 Englan d Gainsford v Griffith, I Saun d 58 A bond in a penal sum executed within or without the state, and con- taining a condition to the effect that it is to be void upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceed- ings thereupon, as if it contained a covenant to pay the sum, or to per- form the act specified in the condition thereof But the damages to be re- covered for a breach or successive breaches of the condition cannot in the aggregate exceed the penal sum, except where the condition is for the payment of money, in which case they cannot exceed the penal sum, with interest thereupon, from the time when the defendant made default in the performance of the conditio N N Y Code Civ Pro, 1915 As to Boundaries in Other Connections, see COUNTIES ; DRAIN- AGE ; HIGH WAYS ; MUNICIPAL CORPORATIONS; PUBLIC LANDS; RIPARIAN RIGHT S I INTRODUCTORY JURISDICTIO N At common LW questions of boundary were settled through the medium of the actions of ejectment and trespas S 1 Equity jurisdictio N A court of equity has no power as of course to issue commissions to fix the boundaries of legal estate S Some equity must be superinduced by the acts of the parties to warrant chancery in taking jurisdiction over a boundary disput e 1 Statutory Eemedie S Most of the states have legislated on the sub- ject of disputed boundaries, and have provided a means of set- tling the question through the medium of processioners or commis- sioner S 2 The statute usually prescribes the practice which the pro- cessioners or commissioners must follow in ascertaining the bound- ar Y The courts, while liberal in the construction of their acts within their authority, are careful not to allow the processioners or commissioners to exceed their powers as conferred by the statut e 3 the bounds of distinct lordships or manors belonging to different parties, they might by consent obtain a writ de perambulatione facienda to ascer- tain the boundarie S I Spence E Q Jurisdiction 655; Reg Brev 157 6; Fitz. Nat Brev 300; Speer v Craw- ter, 2 Meriv 410 1 Pomeroy E Q Jurisprudence, 1379; Bispham Principles of Equity, 503; Wake v Conyers, I Eden 331; z Lea d Ca S E Q 362 " Under all ordinary circumstances the action of ejectment is an adequate remedy by which to settle disputed claims to legal titles and estate S" Pomeroy E Q Jurisprudence 2128, not e 2 Object of the Statute S The object of these statutes is not, by a summary pro- ceeding, to determine the title to land, or settle disputed or uncertain lines between adjoining proprietors, but to restore the marks of dividing lines that once existed, and have been dis- placed or destroyed, or have become obscur e West Hartford Ecclesiastical So C v First Bapt.

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Church, 35 Con N 117 Post Date: Sun, 27 Jul 2008 19:35:07 +0000
Church, 35 Con N 117; Plank v Reinhart, 81 Iowa 757 Processioning was designed to pre- vent controversies concerning bound- aries of land between adjacent owners, by having the lines around the entire tract of an applicant surveyed and marke d Processioners have no power to ascertain and fix new lines, but only to run and mark those which were formerly located and establishe d Watson v Bishop, 69 Ga 51; Amos v Parker, 88 Ga 754; Porter v Dur- ham, 90 N Car 55 The question with which proces- sioners or commissioners deal is one wholly of existing boundaries; they have no jurisdiction to establish a new boundar Y Cleveland v Treadwell, 68 Ga 835; Camp -v Cochran e 71 Ga 865; Christian v Weaver, 79 Ga 407; Martz v Williams, 67 111 307; Allmon v Stevens, 68 111 89 Proper AnsweROn a petition for the appointment of a commission to establish a lost or disputed corner, an answer from the defendants is proper, where they seek to deny that the cor- ner is lost or in disput e Harrah . Conley, 82 111 48 Georgia In Georgia the proces- sioning laws are intended for opera- tion upon the boundaries dividing rural lands onl Y Christian v Weaver, 79 Ga 406 3 Connecticut Fox v Beebe, 24 Con N 271; Wolcott v Robbins, 26 Con N 236; Wright v Wright, 21 Con N 329; West Hartford Ecclesiasti- cal So C v First Bapt. Church, 35 Con N 117; Hollister v Hollister, 35 Con N 241 Georgia Christian v Weaver, 79 Ga 406; Camp v Cochrane, 71 Ga 865; Martin v Cauthen, 77 Ga 491; Rattaree v Morrow, 71 Ga 528 Illinoi S Martz v Williams, 67 111 307; Tallon v Schempf, 67 111 472; Faucher W Tutewiller, 76 111 194 Iowa Tooman v Hidlebaugh, 83 Iowa 130; Anderson v Peterson, 74 Iowa 482; In re Harrington, 54 Iowa Kansa S Schwab v Stoneback, 49 Ka N 607 Louisiana Andrews v Knox, 10 La An N 604; Booth v Buras, 35 La An N 552 Nebraska Kittell v Jenssen, 37 Neb 685 North Carolina Carpenter v Whit- worth, 3 Ire d (N Car) 204; Miller v Heart, 4 Ire d (N Car) 23; Matthews I I KIND OF ACTIO N A proceeding to establish a disputed boundary line, if it is brought under a statute which prescribes the remedy, is a special proceedin g 1 Action on the Cas e Where the statute allows a recovery, unde-r certain circumstances, for the repairing of a boundary fence, the action should at common law be an action on the case, setting forth all the facts necessary to be established to fix the defend- ant's liabilit Y 2 II I REQUISITES OF COMPLAINT.

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And facts must be averred Post Date: Sun, 27 Jul 2008 19:19:44 +0000
A complaint to establish a boundary is bad if it does not contain an allegation of a previous request to establish such lin e 3 And in an action touching a boundary fence, care must be taken to so draft the complaint or declaration as that the cause of action, whether founded on a statute or arising at common law, will clearly appeaR4 v Matthews, 4 Ire d (N Car) 155; Hoyle v Wilson, 7 Ire d (N Car) 466; Wilson v Shufford, 3 Murp H (N Car) 504; Porter v Durham, 90 N Car 55; Britt v Benton, 79 N Car 177 VirginiaStuart v Coalter, 4 Ran d ( Va) 74; Howland v Brown, ( Ga 1893), 17 S E Rep 806 1 Yocum v Haskins, 81 Iowa 436; In re Harrington, 54 Iowa 33 Iowa A proceeding to establish a disputed corner and boundary line, under Laws 1874, C 8, is a special pro- ceeding, wherein the commissioner's report has the force of the verdict of a jury, and is reviewable on appeal only on errors assigne d Yocum v Haskins, 81 Iowa 436 The proceed- ing is triable as an ordinary actio N In re Harrington, 54 Iowa 33 A supplemental pleading, filed after the report of the commissioners, can- not change the issu e Mitchell v Wilson, 70 Iowa 332 Louisiana When the allegations and prayer sufficiently indicate the action to be one of boundary, its character will not be affected by the prayer that plaintiff be adjudged owner within the boundary assigned to hi M Andrews v Knox, 10 La An N 604 An action of boundary, in which defendant reconvenes, contesting plaintiff's title to the land, and claim- ing it with damages, on which plea plaintiff joins issue, is thereby changed into a petitory action, in which de- fendant becomes plaintiff, in the same manner as if the original suit had been for slander of titl e Blanc v Cousin, 8 La An N 71 2 Sanford v Haskell, 50 Me 86; Sharp v Curtiss, 15 Con N 526 Under the general counts in assump- sit for work, labor, and materials, it was held that the plaintiff could re- cover of the defendant one half the expense of building an undivided division fence between them, under an agreement that if the plaintiff would build such half the defendant would build the other half, or pay the plaintiff for the one half of what he should build the defendant having neglected to build any part. Strong v Slicer, 33 Vt 466 Compare Woodward v Purdy, 20 Ala 379; Tankersly v Wed- worth, 22 Ala 677; Blackburn v Baker, 7 Port (Ala) 284 New Hampshire Rev Stat C 207, 3 which provides that if any person shall throw down or leave open any bar, gate, or fence belonging to or in- closing any land holden in common, or belonging to any particular person, or shall aid therein, he shall for every such offense forfeit and pay treble damages to the person injured, and also a sum not exceeding fifteen dol- lars, according to the aggravation of the offense is a penal statute; and debt, not trespass, is the proper form of action founded thereo N Janvrin v Scammon, 29 N H 280 3 Morgan v Lake Shore, etc, RCo, 130 Ind IOT. And facts must be averred which present an issue as to boundary lines, and such a description must be given as will enable the court to establish the line S Morgan v Lake Shore, etc, RCo, 130 Ind 103; Forney v Will- iamson, 98 N Car 329 4 Where it was averred that, the plaintiff and the defendant being pro- prietors of certain adjoining tracts of land, the defendant neglected and re- Iv POINTS OF PBOCEDTTRE 1 Notic e Where a statute author- izes a court to appoint a commission to ascertain and establish lines and corners of land which are lost or are in dispute, it con- templates a notice of the application to be served on the defend- ant ; this notice is in the nature of original process to bring the defendant into court.

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Rattaree v Morrow, 71 Post Date: Sun, 27 Jul 2008 19:05:21 +0000
1 2 Partie S All persons interested in the settlement of a bound- ary dispute should be made partie S 2 3 Defendant's AnsweRIn a proceeding under the statute to permanently locate a disputed line or corner, an answer may be interposed to the petition, as in any other cas e 3 4 Report of Commissioner S It is the policy of the statute to make the report of boundary commissioners only prima-facie evi- denc e It is only the approving order of the court, upon the hearing of the parties and formal trial, that can give effect to the report and conclude the rights of those having intereSt 4 fused to keep in repair the divisional fence between those tracts, without any averment that it was the duty of the defendant to keep such fence in repair, it was held that such count was fatally defectiv e Sharp v Cur- tiss, 15 Con N 526 Where the statute allows the owner of adjoining land to fence against a railroad and recover the cost if the railroad does not fence within a cer- tain time, the complaint to recover the cost of so fencing must aver that the railroad did not fence within the time require d Lake Erie, etc, RCo v Lannert, i Ind App 102 See the following cases, where the complaint was held sufficient: Nichols -v Dob- bins, 2 Mont 540; U S v Bisel, 8 Mont 20 But where the action is founded on a statute, it is sufficient for the plaintiff to bring his case within the express provisions of the statut e Sharp v Curtiss, 15 Con N 526 1 Lee v Fox, 89 111 226 The defendant is entitled to service of notice before the petition is filed, so as to have an opportunity of an- swering the same and contesting every step in the case; the service of a scire facias on him after the survey has been made and reported, and before final decree, is not sufficient to give the court jurisdiction to enter an order confirming the report of the commis- sio N Lee v*. Fox, 89 111 226 The notice cannot be served by the petitioner, Lee v Fox, 89 111 226; but the entry of an appearance will waive notic e Tallon v Schempf, 67 111 472 As to the duty of the commissioners in giving notice when they are about to proceed with their duties in ascer- taining the boundary line, see Phillips v Chapman, 78 Ga 163; Voelz v Breittenfield, 68 Wi S 491; Neary v Jones (Iowa, 1893), 56 N W Rep 675; Geyer v Stratton, 29 Con N 421; Bruner v Palmer, 108 Ind 397; Chicago, etc, RCo v Abbott (Ind App, 1894), 37 N E Rep 557 Illinoi S In proceedings under the "act regulating inclosures," it is nec- essary that the justices of the peace before whom proceedings are had should notify the defendant of the sa Me Holliday v Swailes, 2 111 514 2 Irwin v Rotramel,68 111 n; Rol- lins v Davidson, 84 Iowa 237 In proceedings to establish the cor- ners of a section of land, all persons owning land within the section are en- titled to be joined as parties plaintiff or Defendant Rollins v Davidson, 84 Iowa 237 3 Harrah v Conley, 82 111 48 See McCormick v Tate, 20 111 334; Bech- tel v Neilson, 19 Wi S 49 4 Townsend v Radcliffe, 63 111 10 Upon objections being filed to the report of surveyors, denying its cor- rectness in fixing disputed boundaries of land, it is error in the court to re- fuse a trial by jury, when demanded, to try the issues mad e Huston v Atkins, 74 111 474 An objection to any of the commis- sioners appointed by the court is in the nature of a challenge, and should be brought forward when the appoint- 5 Questions of Law and Fact Questions of La W When the bound- ary lines of a grant are fixed by the grant itself, the question as to what these lines are is purely one of la W 1 Questions of Fa Ct But while it is the province of the court to con- strue a written instrument, yet it is the province of the jury, from all the evidence, to determine the boundary lines of land in con- troversy in legal proceeding S 2 ment is about to be mad e Miller v Heart, 4 Ire d (N Car) 23 When the court sustains objections to the commissioners' report, it may establish the boundary without again referring the case to the commis- sioner S Doolittle v Bailey, 85 Iowa 398 See Yocum v Haskins, 81 Iowa Where a protest is filed to the report of processioners by the party notified, and on the trial evidence is introduced on both sides, the applicant for the proceeding stands in the place of a plaintiff or party^moving in an ordinary cause, and is entitled to open and con- clude the argument. Rattaree v Morrow, 71 Ga 528 Georgia A protest to the return of processioners is to be filed with the clerk of the Superior Court, who is to enter the same on the issue docket like other causes; and it is to be tried in the same manner and under the same rules as other cause S Watson v Bishop, 69 Ga 51 1 Magee v Doe, 22 Ala 699; Bur- nett v Thompson, 13 Ire d (N Car) 379; Doe -v, Paine, 4 Hawks (N Car) 64; Den v Morgan, I Dev B ( N Car) 425; Doe v Fisher, i Jones ( N Car) HI; Cockrell v M'Quime, 4 T b Mo N (Ky)6 I When the calls of a survey are all ascertained and no resort to extrinsic evidence is necessary, it is for the court to fix the boundary; but where parol evidence has to be resorted to to identify the calls, the facts must be ascertained by a jur Y Ott v Soulard, 9 Mo 581 Although the true location upon the ground of a tract of land re- turned surveyed is ordinarily a fact for the iury, yet where there are no marks upon the ground, and there is no other evidence of an actual survey than is contained in the return, the true location must be ascertained from the situation of other tracts for which it calls, and the jury are to be gov- erned in the inquiry by legal princi- ple S In such cases the finding be- comes a deduction from rules of law, rather than the simple ascertainment of a fa Ct Mathers v Hegarty, 37 Pa St 64 Compare Ellithorpe v Buck, 17 Ohio St 72 2 Cochran v Smith, 73 Hun ( N Y)597- The true location of a disputed boundary is always a question of fact for the jur Y Brown v Willey, 42 Pa St 205 W T hether a monument or boundarv referred to in a conveyance is identi- cal with that found upon the ground, and which is supposed to answer to it when disputed, is a question of fact for the jur Y Doe v Cullum, 4 Ala 576 Where it is uncertain which of two roads is meant for a boundary, it is a question for the jury to determin e Ott v Soulard, 9 Mo 581 And where there is no patent am- biguity in the description of a bound- ary, it is the province of the jury to determine how far it is answered by the monuments on the ground, and to judge between discrepancies in the call S Nourse v Lloyd, I Pa St 229 Where a corner was described as being on the east side of a creek, and there was evidence tending to show that it was on the west side of the creek, it was held to be a question for the jury to decide on which side the corner was locate d Den v Belton, 10 Ire d (N Car) 358 It may be left to the jury to find whether the monuments or the meas- urements shall gover N Doe v Rives, 10 Ire d (N Car) 256 See also Buck- ner v Anderson, in N Car 572; Hunt v McFarland, 38 Pa St 69; Jordan v Payne, Peck (Tenn) 320; West Hartford Ecclesiastical So C v First Bapt.

Autor of the post: Undefined

Sometimes the removal Post Date: Sun, 27 Jul 2008 18:49:36 +0000
Church, 35 Con N 117 Variatio N The jury is the proper tribunal to decide whether any and what variation ought to be allowed in the location of land S Wilson v In- loes, 6 Gill (Md) 121 But where there is a total absence of the testimony in relation to vari- ation, the court ought not to instruct the jury on that subje Ct Wilson v Inloes, 6 Gill (Md) 121 6 Judgment. The judgment entered in a disputed boundary case should be specific and certai N 1 7 Appeal S The statute usually contemplates an appeal from the decision of the commissioners ; and where no appeal is ex- pressly provided for, if the decision of disputed boundaries is made by an inferior tribunal, a party is entitled, ex delictojustitice, to a certiorari to bring up for review all questions of la W 3 But the appellate court will not review the evidence if conflicting; and the findings of the court below on questions of fact cannot be disturbed for want of evidenc e It is only questions of law that the appellate court will consider on appea L 3 8 Cost S The costs of settling a disputed boundary line are apportioned equitably among all the parties according to their several interest S 4 v INDICTMENT. Sometimes the removal of a boundary mark or fence is punished as a crime by means of an indictment.

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Such information should also make Post Date: Sun, 27 Jul 2008 18:35:18 +0000
The in- dictment should allege all the essential ingredients of the offense as defined by the statut e 5 Illinoi S An appeal lies from the decision of two justices of the peace, under the " act regulating inclosure S" Holliday v Swailes, 2 111 514 3 Mitchell v Wilson, 70 Iowa 332; Vittoe v Richardson, 58 Iowa 575; Bohall v Neiwalt, 75 Iowa 109; Davis v Curtis, 68 Iowa 66; Williams v Tschantz (Iowa, 1893), 55 N W Rep 202; Yocum v Haskins, Si Iowa 436 4 Stevens v Allmon, 68 111 245; Bohall v Neiwalt, 75 Iowa 109 And the costs should be apportioned regardless of the benefits resulting from the proceedin g Bohall v Nei- walt, 75 Iowa 109 Where the proceeding for settling a disputed line was "commenced against three defendants, and the court found that one of the defendants was not in- terested in the line, it was proper to enter judgment for costs against the parties who were intereste d Faucher v Tutewiller, 76 111 194 5 State ?'. Coy, 47 Mo App 187; State v County Com'rs (N Car, 1887), i S E Rep 641; State v Big- gers, 108 N Car 760; Co M v Wal- ters, 6 Dana (Ky) 290; Ratcliffe v Co M, 5 Gratt ( Va) 657; Territory v Ashby, 2 Mont 89; State v Malloy, 34 N J L 410 An information for maliciously tear- ing down a fence, which lacks the al- legation that the fence belonged to the land it inclosed, is insufficient. Such information should also make it plain whether the land or fence belongs to the person in whom the property is lai d State v Coy, 47 Mo App 18;.

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McDonogh v De Gray S Post Date: Sun, 27 Jul 2008 18:17:00 +0000
1 In a controversy as to the real boundary between adjoining lands, the verdict adjudged that the true line be- tween the plaintiff's and the defend- ant's lines is the line run by M d's surve Y It was held that the judgment should be more specifi C Foreman v Redman (Ky, 1887), 5 S W. Rep556 A determination fixing the propor- tion of fence to be made and main- tained by each adjoining owner should apportion the whole, and not apart, of the dividing lin e Sheets v Connolly St RCo, 54 N J L 518 Louisiana In Louisiana a court having cognizance of a suit on the subject of limits must comply with the provisions of the Civil Code, art S 829, 837 No judgment can be pronounced until the report of the surveyor ap- pointed to inspect the premises and the plans made by him in execution of the order of survey are brought into court. McDonogh v De Gray S 4 La An N 33 2 Matthews v Matthews, 4 Ire d (N Car) 155; Miller v, Medlock, 68 Ga 822 See Plank v Reinhart, 81 Iowa 756; Atkins v Huston, 106 111 492; Tallon v Schempf, 67 111 472 But the proceeding to establish a disputed boundary line, being a spe- cial proceeding, is reviewable on ap- peal only on the errors assigned, and is not triable de novo as an equity cas e Yocum v Haskins, 81 Iowa 436 But although the statute may pro- vide for an appeal, this does not deny the right to bring a writ of erroRAt- kins v Huston, 5 111 App 326 I DEFINITIO N In its broad sense breach of the peace in- cludes any infraction upon the public order and tranquillity by any act or conduct inciting to violence, or tending to provoke or excite others to like condu Ct 1 While including other specific offenses it may be, and at times is, recognized as an offense in itself ; and only when so regarded will it be considered in this articl e I I COMPLAINT, INFORMATION, OR INDICTMENT certaint Y A com- plaint, information, or indictment for a breach of the peace must contain in its description of the offense some sort of conduct of the nature mentioned, set forth with the degree of certainty re- quired in criminal pleadin g 2 Fact S It should recite the facts constituting such condu Ct 3 1 People v Johnson, 86 Mich 175; The words "tumultuous and offen- Davis v Burgess, 54 Mich 514; People sive carriage, threatening, quarreling, v Johnson (Mich), 13 L R A 163 and challenging," are not in them- It thus includes assaults, affrays, selves statements of fact importing unlawful assemblies, disorderly con- with certainty a breach of the peace, duct, riots, and, in fact, every offense The facts constituting such tumultu- known to the law, which, in its essen- ous and offensive carriage should be tial ingredients, embodies some sort alleged, State v Matthews, 42 Vt 542; of violent as well as dangerous con- such as, that defendant did disturb and du Ct Rapalje Lawrence Law Diet, break the public peace by "tumultuous 149; Robison v Miner, 68 Mich 549; and offensive carriage" by "threat- People v Bartz, 53 Mich 493; Galvin ening, quarreling with, challenging, v State, 6 Cold W (Tenn) 294 assaulting, beating, and striking a 2 " An indictment charging a per- designated person," thus showing the son as a peace breaker, and not with means by which the offense was corn- any specified crime, would be good for mitte d State v Hanley, 47 Vt 290 nothin g" Per Campbell, J, in Robi- Language of Statut e In State v son v Miner, 68 Mich 549 Craddock, 44 Ka N 489, under the 3 Finch v State, 64 Mis S 461; To- statute of that state providing a fine peka v Heitman, 47 Ka N 739 or imprisonment for "every person Intent.

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R696 A justice Post Date: Sun, 27 Jul 2008 18:06:33 +0000
A breach of the peace being an act which necessarily implies intent, no direct allegation of intent is necessar Y 1 Abusive Language Tending to Breach of Peac e Under statutes making it an offense to use language tending to create a breach of the peace, the complaint, information, or indictment should follow closely all the statutory essentials to the offense with the particu- larity of an indictment generally ; for example, that the language was uttered in the presence and hearing of the person or persons naturally incensed thereby to such breach, 8 giving the names, if who shall wilfully disturb the peace and quiet of any person," etc, a com- plaint was held sufficient which de- scribed the offense in the language of the statute, except that the word " unlawfully "(" wilfully and unlaw- fully ") was use d To the same effect see State v Ramsey, 52 Mo App 668; State v Brumley, 53 Mo App 126 But where the statute does not con- tain words sufficient to define any of- fense, it is not sufficient to charge the crime in the general language thereof Finch v State, 64 Mis S 461 Vermont Statut e Rev Laws Ver- mont, 4228, prescribes several acts or offenses, distinct and different, any one of which might constitute a breach of the peac e In State v Archibald, 59 Vt 548, Royer, CJ, said: "An indictment un- der it must unquestionably charge, with the degree of certainty and par- ticularity required in criminal plead- ing, the commission of some one of these acts or offenses, and that the effect of it was to disturb or break the public peac e" And see State v Riggs, 22 Vt 321 Single Offens e In State v Mat- thews, 42 Vt 542, Wilson, J, in speak- ing of the Vermont statute referred to above, said: "The public peace may be disturbed or broken by one of these modes; it may be disturbed and bro- ken by all these modes, and yet con- stitute but one offens e A single count in an indictment, information or com- plaint, may contain a statement of facts which show upon the face of them that one offense, namely, a breach of the peace, has been committed by all the modes named in the statut e And where the tumultuous and offensive carriage, threatening, quarreling, challenging, assaulting, beating and striking are connected acts, done at the same time, they constitute but one offense, and all such connected acts, or so much of them as is necessary to constitute the offense, should be al- leged in one count. It is clear that, for such connected acts, the respond- ent could not be convicted of two or more offenses by setting forth, in two or more counts, the different modes by which he committed the offense, where the acts set forth in each and in all the counts were committed simultane- ousl Y The offense embraced in that section of the statute is a misde- meanor, whether it be committed by one of the modes or by all the modes named in the statute; and a conviction on an indictment alleging the offense to have been committed by one or more of the modes named would be a bar to any subsequent in- dictment for the same offense alleging it to have been committed by one or more of the other modes named in that section of the statut e Under a count alleging that the respondent dis- turbed and broke the public peace by tumultuous and offensive carriage, by threatening, quarreling, challenging, assaulting, beating and striking any other person, proof of a breach of the peace, in either of the modes alleged, would be sufficient to sustain the prose- cution, and the other modes, alleged and proved to have been committed at the same time, could be treated as matters or circumstances of aggrava- tio N" Public Place Schoolhous e In Par- sons v State (Tex Cri M App, 1894), 28 S W Rep 204, an indictment for a disturbance of the peace in a public place, which alleged that the defend- ant acted "in a manner calculated to disturb the inhabitants of said public place," the public place in this in- stance being a certain schoolhouse therein described, was held to suffi- ciently aver that people were there assemble d 1 State v Archibald, 59 Vt 548 2 Under the Arkansas statute, when the language is addressed to several, II I PROCEEDINGS TO PREVENT BREACHES OF THE PEACE 1 Natur e Proceedings to prevent breaches of the peace, such as the placing of a person under bonds to keep the peace, are not the prosecution of offenses committed, 3 and hence do not, it seems, come under the constitutional inhibition against a second jeopardy for the same offense ; 4 although, in the absence of a statute, the proceedings are criminal in their natur e 5 2 By Whom Conducte d Conservators of the peace, at common law, have authority to bind all breakers of the peace to keep it ; 6 and to demand sureties for that purpose for such a reasonable time as they think necessary ; r and that the party charged be imprisoned until the security is give N 8 Statutory tribunals may also be clothed with like authority; 9 or this power may be re- a complaint charging it as addressed to one of the company will sustain a convictio N Hearn v State, 34 Ark 550 1 Under the Minnesota statute (1881, C 134) the name of the person in whose presence the language was used must be given, if the same be known, and if not known, that fact must ap- peaRState v Clarke, 31 Min N 207 2 Steuer z/ State, 59 Wi S 472 Con- tra, State -v Moser, 33 Ark 140; Hearn v State, 34 Ark 550; State v Hutson, 40 Ark 361 While the case of Moore v State, 50 Ark 25, follows the above de- cisions, Smith, J, uses the follow- ing language: "It would seem, on principle, that an indictment for this offense should set forth the language used by the defendant, which is al- leged to be abusive, and tending natu- rally to provoke an assault, in order that the court might be enabled at the outset to judge whether any offense had been committe d The analogies of the law discourage putting the de- fendant on trial without a more minute specification of his offens e" 3 Fisher v Hamilton, 49 Ind 341; State v Cooper, 90 Ind 575; Arnold v State, 92 Ind 187 4 State v Vankirk, 27 Ind 121 5 State v Maners, 16 Ind 175; De- loohery v State, 27 Ind 521; State v Carey, 66 Ind 72 6 i Bl K Co M 355; State v Cooper, 90 Ind 575 In Haylocke v Sparke, I E L B L 471, 17 JuR731, 22 L J M C 67, an action of trespass against the person granting the warrant, it was held that justices of the peace had jurisdiction, in some cases of libel, to require sure- ties for good behavioR7 Prickett v Gratrex, 2 New Ses S Ca S 429, 8 QB 1021, 10 JuR566, 15 L J M C 145; Rex v Bowes, i T. R696 A justice of the peace is not author- ized to require a party to find sureties to keep the peace for an unlimited ti Me Prickett v Gratrex, 2 New Ses S Ca S 429, 8 QB 1021, 10 JuR566, 15 L J M C 145 8 Dunn v Reg (in error), 12 QB 1026, 13 JuR233, 18 L J M C 41, Exc H Cha M; In re Aston, i New Ses S Ca S 73, 12 M W 456, 8 JuR293; Doyle's case, 19 Abb Pr ( N Y Su- preme Ct) 269 Commitment.

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The proceeding is generally commenced Post Date: Sun, 27 Jul 2008 17:47:25 +0000
In re Aston, i New Ses S Ca S 73, 12 M W 456, 8 JuR293, where it was held that the warrant of commitment for want of sureties to keep the peace, based upon the use of language threatening bodily harm, need not show the nature of the bodily harm threatened, nor when the lan- guage was use d In Prickett v Gratrex, 2 New Ses S Ca S 429, 8 QB 1021, 10 JuR566, 15 L J M C 145, it was held that it need not contain the sum in which the party and his sureties are to be boun d And in Bradstreet v Furgeson, 23 Wen d ( N Y) 638, it was held unnec- essary to state the crime for the pre- vention of which the application for sureties of the peace was made; it was enough to state that the party was committed for refusing to give such suretie S 9 State v Cooper, 90 Ind 575; State v Murphy, 40 La An N 855 3 How Conducte d Proceedings for articles of the peace, as they are frequently termed, should not be so conducted as to unnecessarily trammel the defendant in securing his sureties, if necessar Y 2 Name of the stat e Unless a statute provides otherwise, the pro- ceedings are had in the name of the state, without a relator,-' 1 and are instituted by a formal complaint or affidavit. 4 4 The Complaint. The proceeding is generally commenced by an application to a magistrate for sureties of the peace, 5 by or at the instance of the person against whom the intended breach of the peace may be directe d 6 Contents The affidavit upon which such proceedings are based should state the threat, fact, or circumstance inducing the fear of the premeditated breach, that the court may judge of the suffi- ciency of the sa Me 7 It may include all the fears of the complain- 1 Doyle's case, 19 Abb Pr ( N Y Supreme Ct) 269 2 So held in an early English case, Rex v Wait e 2 BurR780, 2 L d Ke N 511, where such articles were rejected solely on the ground that " the exhib- itant had not applied or endeavored to apply to any justice of the peace in his own neighborhood, but had chosen to come hither, at such a distance from the defendant's residence, which method would put the defendant to the unnecessary inconvenience of be- ing brought up hither, instead of find- ing security in the countr Y" 3 State v Carey, 66 Ind 72 4 Bradstreet v Furgeson, 23 Wen d ( N Y) 638 5 Bradstreet v Furgeson, 23 Wen d ( N Y)6 3 8 6 State v Tooley, i Head (Tenn) 9 In this case it was held that a husband could demand surety, of the peace in behalf of his wife, and take the oath and conduct the proceedings to obtain the warrant, she being in- capable of so doin g Several Complainant S In Reg v Dunn, 12 A d E L 599, 4 p d 415, i A M H 21, 5 JuR721, articles of the peace were returned by certio- rari, and affidavits made by others than the exhibitants were subjoined on the same parchment, and the whole ended with the jurat, "Sworn by the several defendants," etc /7?A/, that it sufficiently appeared that the articles had been exhibited on oat H 7 State -v Goram, 83 N Car 664; Reg v Dunn, 12 A d E L 599, 4 p d 415, i Ar N H 21, 5 JuR721; Reg v Stanhope, 12 A d E L 620, not e Alternative Statement.

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3 Breach of Promise Post Date: Sun, 27 Jul 2008 17:33:44 +0000
In Steele v State, 4 Ind 561, a complaint which alleged that complainant verily be- lieved and actually feared, etc, that the defendant would kill him or do him great bodily injury, or procure others to do so, was held bad for al- ternativenes S Again, in the case of Collins v State, ii Ind 312, a complaint which expressed the affiant's fear of bodily harm to himself or some mem- ber of his family, was held sufficient, under the statute of that state provid- ing that a justice shall issue his war- rant whenever the complaint is made in writing, upon oath, that the com- plainant has just cause to fear that another will destroy or injure his property, or injure, by violence, him- self or some member of his famil Y Se^ also, as to fears of bodily harm, State v Bridegroom, 10 Ind 170 In Conklin v State, 8 Ind 458, it was held that an alternative statement did not necessarily render the com- plaint ba d The court said: "It is said the complaint is in the alterna- tive; and this has often been held, with more of technical precision than sound reason, to be fata L For it may often be that a threat is made on which a well-grounded fear of medi- tated injury may be indulged; and yet, from the terms employed, it might be difficult to determine whether the person or the property, or both, ant, of person, property, and family conjunctivel Y 1 statutory For M A statutory form, if given, should, of course, be followe d* Verit Y The facts thus stated are to be considered as true until the contrary appear S 3 Hence the prosecutor cannot be called upon to show cause why the articles should not be discharged ; 4 nor can the facts be controverted by counter-affidavit S 5 5 Trial and Verdi Ct The issue for trial is whether the com- plainant had just cause for the fears alleged when the affidavit was filed ; 6 or the defendant may waive an examination, which will be equivalent to a verdict against hi M 7 The verdict must respond to the issu e 8 6 False and Malicious Proceeding S Where the proceedings appear malicious, and the affidavit upon which they are based is untrue, further action may be stayed, and the complainant prose- cuted for perjur Y* 7 Appea L In the absence of any statute allowing it, no appeal lies in behalf of the state or the relator from the judgment of the magistrat e 10 were in dangeR* * * Here it is ob- jected that the disjunctive ' or ' is use d But we have repeatedly decided that 'or' means 'and,' and vice vers A" Metaphorical Languag e In Rex v Tregarthen, 5B A d 678, 2 N M 379, a motion was made to dis- charge the recognizance to keep the peace entered into before a magis- trate, on the ground that the language was used in a metaphorical sense onl Y The motion was denied, on the ground that the magistrate was the proper judge to determine in what sense the language was use d 1 Conklin v State, 8 Ind 458; Col- lins v State, ii Ind 312 2 Beckwith v State, 21 Ind 225 See also Davis v State (Ind, 1894), 37 N E Rep 397 % 3 Lord Vane's case, 13 East 172, not e 4 Reg v Mallinson, 16 QB 367, 15 JuR746 5 Lord Vane's case, 13 East 172, note; Rex v Doherty, 13 East 171; Reg v Mallinson, 16 QB 367, 15 JuR746; Lort v Hutton, 45 L J M C 95 Habeas Corpu S On habeas-corpus proceedings bringing up a party com- mitted by justices of the peace for failure to furnish sureties of the peace, affidavits controverting the facts alleged in the articles will not be hear d Reg v Dunn, 12 A d E L 599, 4 p d 415, i Ar N H 21, 5 JuR721; Reg -v Stanhope, 12 A d E L 620, not e 6 State v Sayer, 35 Ind 379; State v Steward, 48 Ind 146; Stone v State, 97 Ind 345 7 State v Low, 5 Ind App 261 8 In Long v State, 10 Ind 353, the statutory issue being " whether the complaining witness had just cause to entertain the fears expressed in his affidavit," a verdict of guilty was held too indefinite to meet the require- ments of the statut e 9 Rex v Parnell, 2 BurR806 10 State -v Long, 18 Ind 438; Co M v Oldham, i Dana (Ky) 468 I FOEM AND KIND OF ACTION Contra Ct The action for breach of promise of marriage is an Action ex contractu, not ex delicto,* un- less the declaration counts tort-wise for fraud and deceit upon special ground S 2 1 Greenup v Stoker, 7 111 688; tion on the case, where the defend- Smith v Brown, 37 La An N 225; ant was a married man and repre- White v Thomas, 12 Ohio St 312, 80 sented himself to be single, and as A M De C 347 such entered into a contract of mar- Breach of promise is sued for in riage with the plaintiff, a declaration assumpsit like any other agreement, counting tort-wise as for a fraud was Cathcart v Merritt T P, 38 Mich 243 held good on demurreRPollock v 2 Fraud Married Ma N In an ac- Sullivan, 53 Vt 507, 38 A M Rep 702 Attachment Where the remedy by attachment is confined to actions upon contracts, in which the amount to which the plaintiff is entitled can be specified in his affidavit and ascertained by some certain measure of damages, attachment does not lie in an action for breach of promise of marriag e 1 ArreSt A cause of action based simply upon a breach of promise to marry, without any charge involving fraud, is within the usual inhibition against imprisonment for Debt 2 I I MISJOINDER OF ACTIONS Breach of Promise and Defamation of CharacTer Breach of promise to marry and defamation of character are different causes of action ; the one is in contract, the other in tort. Both cannot be prosecuted in one suit. 3 Breach of Promise and Money Count.

Autor of the post: Undefined

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