party may have an action, unless he has performed or tendered a performance on his part. Sherman vs. Leaveret, &c. and Leav. eret, &c. vs. Sherman, 169 An action will not lie against a town, where a part only were indebted, although the adjustment of the balance was made by a committee of the town. Town of New-London vs. Town of Montville, 184 An action may be brought on the covenants of feizen and warranty in a deed. Seymour vs. Enfign, 210 An action will not lie against a juftice of peace for error in judgment. Ambler vs. Church, 211 No action may be brought on a judgment, only where the plaintiff cannot otherwife avail himself of the judgment. Welles vs. Dexter, 253 No action will lie against an officer for not returning an execution, after the fame is fatisfied and returned. Libret vs. Child, 264 Action of trefpafs on the cafe and not affumpfit, is the proper remedy where a pauper is unlawfully thrown upon a town. Somers vs. Barkhemfted, 262 An action lies against the feller of a public fecurity, which is counterfeit, where he affirmed it to be genuine. Turner vs. Tuttle, 350 An action is not difcontinued by an omiffion to call it, through miftake. Uftick vs. Jones, 439 An action is commenced upon the fervice of the writ. If one of the defendantss die before the writ is ferved, though after it bears date, the action doth not furvive. Clark vs. Samuel and what the land falls fhort of the quantity of acres in the deed, is not within the ftatute of frauds and perjuries. Mott vs. Hurd, 73 A defendant cannot avail himself of general demurrer. An ment executed on one part is not within the ftatute of frauds and perjuries. Clark vs. Brown and Same point decided, Ives vs. the Same point decided in cafe Noyes 204 A parole agreement to leafe lands Where a writ abates because one of the plaintiffs is an alien enemy, the other plaintiff may amend by Dddd ! trator is dead or has abfconded. Brattle vs. Thomas Guftin, 425 B Of Bail and Bonds for profecution. A bond given for the plaintiff for profecation, is not difcharged, by imprifening the plaintiff on the execution for the coft. County Treasurer vs. Biffel, 85 Special bail exonerated, by a judgment in favor of his principal, although, the judgment is afterwards reverfed for error, and judgment rendered against him. Butler vs. Biffel, A debtor in execution by paying the original creditor, doth not dif charge a judgment recovered by the officer against the bail, as to the coft and his fees. Seymour adminiftrator of Baker vs. Hine, 102 254 A bond for the profecution of an action, is discharged by the death of the plaintiff before any judgment entered against him. Williams vs. Francis, 259 A bondfman for a plaintiff upon the appeal of his caufe, is liable for the coft. Stillman vs. Adminiftrator of T. Hofmer, Ef 314 A bond for the profecution of an action not within the ftatute of limitation refpecting bail. Hezekiah Fitch vs. Burr, 365 The sheriff's bail is discharged if the body of the principal is taken by the execution. Johnson, fueriff, vs. Smith, 373 A bond taken upon a criminal profecution, by a juftice, that the par ty fhall appear, anfwer and abide judgment is a good bond. Coun ty Treasurer vs. Noadiah Burr, &c. 392 Sheriff's bail must be profecuted within twelve months after the judgment. Benjamin Howard vs. Miller, 428 The bail is exonerated by a judg ment in favor of the principal, al though a new trial is afterwards granted. Ainfworth vs. Peabody, Bonds given in a criminal profecu 469 tion may be chancered upon the fcire facias. Treasurer Colt vs. Eaton and Goodwin, 524 fendant has performed the conditions the plaintiff must fail, although the defendant may owe him on other accounts. Williams vs. Halfey, 418 Book Debt. An action on book lies to recover money paid on a note, which has not been applied. Brown vs. Talcot, 85 Money paid on a note which was not applied was charged and recovered in an action on book. Prentice vs. Phillips, 103 Intereft not recoverable in a book debt, by virtue of an agreement made more than three years before the fuit. Smith vs. Purdy, 129 248 Broom vs. Henman, This action lies for money paid on a note, which has not been applied and the interest. Hurd vs. Fleming, executor of M'Donald, 132 An order drawn for value received and delivered, may be charged on book. Stores vs. Stores, 139 The court will not affift a plaintiff to recover in this action upon an illicit tranfaction. Lockwood vs. Knap, 153 The pendency of an action on book no bar to the defendant's fuing the plaintiff on book, at the fame time. Ratcliff vs. Dewitt, 155 This action doth not lie where there was a special agreement to pay in a particular way. Harrifs vs. A book may not be altered after it hath been produced on oyer. Downer vs. Lothrop, 273 The pendency of an action on book no bar to the defendant's fuing the plaintiff on book. Allen vs. Rogers, 471 If the defendant recovers in the county court for debt, and the plaintiff appeals the action and enters and withdraws it, the defendant may enter and have judgment affirmed. Rebecca Belden, executrix of John Belden vs. Appleton Robbins, 524 Baftardy. It is requifite in order to recover maintenance for a baftard child, that the mother charge it upon the man accused of being the father in the time of her travail. Hitchcock vs. Grant, 107 Husband and wife may not join in a profecution for maintenance of a baftard. Checfborough vs. Bald win and Wife, 229 In order to recover maintenance for a bastard child it muft appear that the child is born. The mother must be examined on oath. Penfield vs. Norton, 345 Blank Endorsements. A blank endorsement on a note no evidence of an affignment or warranty until it is filled up. Brewf ter vs. Dana, 266 Same point adjudged, and alfo that a blank endorsement extends only to the note on which it is wrote. John Wadhams vs. John Albert Vanderworken, 385 C Bankrupt. Commiffioners on Infolvent Estates. It is the duty of commiffioners to report the balance due from the deceafed. Adminiftrator of Gen. Parfons vs. Thomas Brattle, 347 Same point adjudged, Mary Will iams, adminiftratrix of Nathan Whiting, Efq. vs. Executors of Thomas Darling, Efq. 356 No appeal lies from the report of commiflioners, by a creditor, be caufe his claim is not allowed. Same cafe. They can offset only the mutual claims between the creditors and the deceafed. Staniford, &e. vs. Hide, a creditor and adminiftrator of Stoughton, 397 Expenfes incurred fubfequent to the death of the inteftate not fubje&t to the confideration of commiffioners. Anna Greenleaf vs. Sabin, adminiftrator of Cofts. Welles, 468 Where the effect of the fuit is, that the plaintiff recovers the thing demanded, he fhall have full coft, although the jury find lefs than 40/damages. Brick, &c. executors of Brick vs. Reed, 136 Upon the reverfal of a judgment of the court of probate for the miftake or error of the judge, no coft is allowed. Mary Sloan, appeal from probate. 151 Coft taxed against a minor in an ap |