Bonds. damages and costs aforesaid,"] and kept and detained him in his custody from thence until the said C. D. so being and continuing under his said unexpired term sheriff as aforesaid, afterwards, to wit, on [&c.] last aforesaid, at [&c.] aforesaid, without the leave or license, and against the will of the said A. B. suffered and permitted the said I. K. to escape and go at large, and the said I. K. did then and there escape and go at large, wheresoever he would, out of the custody of him the said C. D., he, the said C. D., so then being and continuing under his said unexpired term sheriff as aforesaid; and the said sum of dollars in said writ and the indorsement thereon mentioned as aforesaid, being then and still wholly unpaid and unsatisfied to the said A. B., to wit, at [&c.]; and thereupon for and on account of the said misconduct of the said C. D. as sheriff as aforesaid, in permitting and suffering the said I. K. to escape and go at large as aforesaid, the said A. B. afterwards, to wit, on [&c.] at [&c.], commenced and prosecuted an action on the case against the said C. D. in the Court of Common Pleas of said county, to recover his reasonable damages sustained by him for permitting and suffering the said I. K. to escape as aforesaid; and such proceedings were had in said action, that the said A. B. afterwards, to wit, at the term of said court, in the year by the consideration and judgment of said court, recovered against the said C. D. the sum of — dollars, which were adjudged to the said A. B. in and by the said court for his damages by him sustained for the misconduct of the said C. D. as sheriff as aforesaid, in permitting and suffering the said I. K. to escape and go at large as aforesaid, and also dollars his costs, &c., as by the record and proceedings of said court will more fully and at large appear, and which said judgment last mentioned also remains wholly unpaid and unsatisfied to the said A. B., to wit, at [&c.], of all which said premises the said E. F. and G. H. afterwards and before the commencement of this suit, to wit, on [&c.] at [&c.], had notice and were then and there requested by the said A. B. to pay the said last mentioned damages, &c., so recovered by the plaintiff, which they and each of them refused to do. And so the State of Ohio in fact says, that the said C. D. did not faithfully discharge the duties of his said office of sheriff during his term of office aforesaid, [negativing the condition of the bond,] and that the said A. B., for whose use this suit is brought, hath been injured as aforesaid by the misconduct of the said C. D.; whereby an action hath accrued to the State of Ohio to demand and have of and from the defendants to this suit the said sum of [penalty of bond] dollars; yet the defendants have not, nor hath either of them paid the same or any part thereof, to the damage of the State of Ohio of dollars; and thereupon the said State sues, &c. And the said State of Ohio, who sues as aforesaid, brings into court here a copy of the aforesaid writing obligatory, with a copy of the aforesaid condition thereof underwritten, which are duly certified by S. S., the clerk of the Court of Common Pleas of said county, to be true copies of the said writing obligatory and condition lodged with and held by him. Bonds-Executors. Second Count, omitting averments as to the election, the issuing of a commission, and the approval of the bond. Also, for that, whereas, the said C. D., to qualify himself for the office of sheriff in and for said county, under the statute in such case made and provided, for the term of two years next after the second Tuesday of October, in the year and until his successor should be chosen and duly qualified, made and executed his other official bond, with the said E. F. and G. H. as his securities, and thereby heretofore, to wit, on [&c., date of bond] at [&c.], they the said defendants by the their said writing obligatory, commonly called an official bond, sealed with their respective seals, [setting forth the bond and its condition as in the preceding form, and then proceed as follows:] and which said writing obligatory, with the condition aforesaid thereunder written, was then and there received by the State of Ohio as the official bond of the said C. D. as sheriff as aforesaid, with the said E. F. and G. H. his sureties in the premises, and then and there lodged with the clerk of the Court of Common Pleas of said county by the defendants; and thereupon the said C. D. then and from thenceforth, until and at and after the misconduct of the said C. D. as sheriff of the county aforesaid, hereinafter complained of, took upon himself to discharge, and was then and there sheriff of said county, to wit, for the term of two years, computed next after the second Tuesday of October, in the year and until his successor was thereafter elected and qualified. And the State of Ohio, for the use of the said A. B., avers, that the said C. D. did not faithfully discharge his duties as said sheriff of said county, during his said term of office, [negativing the condition of the bond,] in this, to wit, that [Here set forth the judgment of A. B., execution, escape, action for the escape and judgment, and profert, &c., as in the preceding form; inserting, however, at the asterisk, if the facts be so, the following:] That the said A. B., on [&c.] at the county aforesaid, made application to one R. S. then and there one of the associate judges of the Court of Common Pleas of said county, to order a capias ad satisfaciendum to issue against the said I. K. upon said judgment, and thereupon such proceedings were had by and before said judge, that the said judge was then and there satisfied by the affidavit of the said A. B. and other testimony then and there presented by the said A. B. to the said judge upon the hearing of said application, that [Here state the particular in the affidavit which authorised the issuing of the capias; See Stat., 647 to 649;] and the said judge then and there ordered a capias ad satisfaciendum to issue in favor of the said A. B. against the said I. K. upon said judgment; and in pursuance of said order SEC. VIII. EXECUTORS. See commencement and conclusion, 190, 191, 193.] What has already been said in relation to common counts, &c., in debt, by and against administrators, Executors - Extortion, Reference to Forms - Highways, Obstructing. ante, p. 349, is equally applicable to executors, by substituting executor for administrator. The profert of the Letters testamentary should be added as directed, ante, 190, 191. See Forms in Assumpsit, ante, p. 271 to 274; 249 to 251; 311. SEC. IX. EXTORTION - REFERENCES TO FORMS. Actions of this nature so seldom occur, that it is not deemed necessary to incorporate any forms into this work. See Forms, 2 Chit. Pl., 8 Am. Ed., 501 to 504; 6 M. & Sel., 220. For Penalty, by Supervisor of Highways, for Obstructing. Court of Common Pleas of Of the term of The State of Ohio, County, in the year of our Lord, county, 88. A. B., supervisor of roads and highin said county of ways in and for district No. -, in the township of complains of C. D. in a plea of debt. For that the said C. D., on [&c.] and at and in said road district No. —, in the township and county aforesaid, (he the said plaintiff then and there being supervisor thereof,) and in a certain public highway theretofore and then remaining authorized by the laws of this State, there situate in said district and passing through the same, leading from to, unlawfully and injuriously did [Here state the nature of the obstruction, as thus: erect a rail fence upon and across said highway, of the height of four feet, and of the length of thirty feet:] and thereby the defendant then and there at and within said district, and whilst the plaintiff was supervisor thereof as aforesaid, did obstruct said public highway and [the same rail fence so erected] upon and across the highway aforesaid, at and within the district aforesaid, from the day and year aforesaid until the, (the said plaintiff during all that time then and there being the supervisor of said district,) he the said defendant unlawfully did continue, and suffer to remain and obstruct said highway, to the inconvenience of travelers, who could not pass and repass, and ride with their horses, wagons and other vehicles, upon and through the same highway at and in said district, as they were wont and ought to do, without great inconvenience; to the great nuisance of travelers and contrary to the statute in such case made and provided; whereby and by force of the said statute, an action hath accrued to the plaintiff as supervisor as aforesaid to demand and have from the defendant the sum of twenty dollars; yet the defendant hath not paid the same or any part thereof; and therefore the plaintiff, as supervisor as aforesaid, sucs, &c. Landlord and Tenant. SEC. XI. LANDLORD AND TENANT. (k) 1. Debt for Rent, on a Demise under Seal, not showing the Indenture specially. (1) For that, whereas, the plaintiff heretofore, to wit, on [date of lease,] at [&c.], demised to the defendant a certain messuage and premises, with the appurtenances, to have and to hold the same to the defendant for the term of years from the day of- A. D. thence next ensuing, and fully to be complete and ended, yielding and paying therefor during the said term to the plaintiff the yearly rent of dollars, on [&c., stating the days of payment,] by virtue of which said demise, the defendant entered into the said demised premises, with the appurtenances, and was possessed thereof from thenceforth until and upon the day of A. D. when a large sum of money, to wit, the sum of — dollars, of the rent aforesaid, for [one year] of the said term, ending on the day and year last aforesaid, and then last elapsed, was due and payable from the defendant to the plaintiff, to wit, at [&c.], whereby an action hath accrued to the plaintiff to demand and have of and from the defendant the said sum of dollars, being the said sum last mentioned, yet the defendant (although often requested so to do) hath not paid the same or any part thereof; to the damage of the plaintiff of dollars; and therefore he brings his suit, &c. 2. On a Parol Demise against an Assignee. Commencement as ante, p. 181 to 188.] For that, whereas, the plaintiff heretofore, to wit, on [&c.] at the county aforesaid, did demise and let unto one M. L. a certain messuage and premises, situate [&c.] for and during the full end and term of [&c.] at and under the yearly rent of (k) Where there is a lease under seal, the lessor, or his assignee or personal representatives, may maintain covenant or debt for rent against the lessee, his assignee or personal representatives. See 1 Chit. Plead. 125 to 133; ante, 48 to 53. Where the landlord has accepted rent from the assignee of the lessee. he cannot maintain debt against the lessee. 1 Saund. 241, note 5. Where the demise is not under seal, the landlord may sustain assumpsit or debt for rent. In debt on a lease under seal, the declaration may be founded specially on the lease, setting out the habendum, reddendum, and covenant, with a profert, as in covenant (see the form, post, in "Covenant "), or in the following form. Debt on a lease against he assignee, for rent, may be similar in substance dollars, to be to the form in covenant. In declaring in debt for use and occupation, proceed as in the Form 1, ante, 348, 349, stating the demand for use and occupation as in the Form 2, ante, 293. That debt lies for use and occupation, 6 T. R. 62, and note; 5 Taunt. 25; 3 M. & Sel. 380. Debt does not lie for non-repairs, &c. (1) Sce supra, observations. This is an anomalous form. It applies to a lease under seal, except in the case of a demise of incorporeal hereditaments; it will be observed, the lease is not set out. See 1 Saund. 276, n. 1, 202, 325, n. 4; 2 id. 297, n. 1; Atty v. Parish, 1 New R. 104, 109. The lease may yet be given in evidence to support the demand at the trial, if the demise be denied by the plea. Landlord and Tenant. therefore paid to the plaintiff by the said M. L. and his assigns, quarterly, by even and equal proportions; by virtue of which demise, the said M. L. after the making thereof, to wit, on [&c.] at [&c.], entered into the said messuage and premises so demised as aforesaid, and was possessed thereof. And the plaintiff saith, that the said M. being so possessed of the said messuage and premises, afterwards, to wit, on [&c., the day of the assignment, or if that were by parol, some day before the commencement of the suit] at the county aforesaid, during the continuance of the said demise, all the estate and right whatsoever of the said M. in and to the said demised messuage and premises, by assignment thereof then and there legally made, came to, and vested in the defendant; by virtue whereof the defendant afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, entered into the said messuage and premises so demised as aforesaid, and was thereof possessed and so continued until the [the day the last rent sued for became due] day of [&c.] to wit, at the county aforesaid. And the plaintiff saith, that the defendant being so possessed of said messuage and premises, to wit, on the day and year aforesaid, at the county aforesaid, the sum of dollars of the said rent so reserved as aforesaid for — of the said demise, ending on the day and year last aforesaid, became and still is in arrear and due to the plaintiff from the defendant; whereby an action hath accrued, [&c., as in preceding forms.] 3. Against a Tenant by Sufferance. After stating the defendant's original title as in any of the preceding or subsequent forms, say,] By virtue whereof the said defendant entered into the said premises with the appurtenances so as aforesaid demised, and was thereof possessed, and so continued from thence until the end and expiration of the said term so demised as aforesaid; and the said plaintiff further saith, that the said defendant always from the end and expiration of the said demise to the (m) - day of in the year continued in the possession, use and occupation of the said premises so demised, with the appurtenances as tenant to the said plaintiff, by the permission and sufferance of the said plaintiff, to wit, at the county aforesaid, whereby the said defendant afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, became liable to pay, and ought to have paid to the said plaintiff the sum of, for rent of the same, and that the same is still in arrear, unpaid and due to the said plaintiff, whereby an action, [&c., as in the last precedent. Add count in debt for use and occupation.] 4. Lessor vs. Lessee, on a Lease under seal. For that, whereas, by a certain indenture of lease, made on the - day of, in the year at the county aforesaid, between the said plaintiff of the one (m) The day on which the last rent sued for became due. |