Page:United States Reports, Volume 1.djvu/39

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28
Cases ruled and adjudged in the

1776.

It has been ſaid, that it is obligor’s fault not to have the payment indorſed on the bond: but it is not in his power, for the money muſt be paid before he is entitled to a receipt; and then, if the obligee is a bad man, he may refuſe to indorſe it.

We are, therefore, clearly of opinion, that an aſſignee takes the bond at his own peril; and that he ſtands in the ſame place as the obligee, ſo as to let in every defalcation which the obligor had againſt the obligee, at the time of the aſſignment, or notice of aſſignment. The only intent of the act being to enable the aſſignee to ſue in his own name, and prevent the obligee from releaſing after aſſignment.

Judgment for the Defendant.

Townſhip of Fallowfield verſus Townſhip of Marlborough.

On Certiorari to Cheſter, to remove an order and judgment of ſeſſions, for the removal of James Heany.

Exceptions taken to the proceedings below—That it did not appear the pauper had been examined; nor was any reaſon ſet forth why he was not: That natural juſtice required he ſhould be heard before he was removed. And the following caſes were cited:—2 Salk. 488. to ſhew the examination muſt be by two Juſtices.—2 Stra. 1092. S. P. And. 238.—Sett. Cas. c. 18.

But it was anſwered: 1ſt. That it was not neceſſary that the examination ſhould appear on the face of the order. Juſtices are not obliged to ſet forth evidence, or every little circumſtance; that when nothing is ſet forth which appears to be wrong, the Court will make an intendment in favour of their order. An order to a common intent good. 1 Stra. 211. That it is not neceſſary to ſet forth the ſummons and examination of the party.—1 Stra. 474. 630. 211. 2d. Lord Ray. 1406.

2d. That even if it was neceſſary, there are words in the order equivalent, viz. on due conſideration, which implies due examination—3 Burn. Seſs. Cas. Alſo the words due proof. Alſo, the words on the examination of Samuel Henry “as otherwiſe.”

That in the caſes from Salkeld, there appeared a defect of examination on the order, it having been taken by one Juſtice inſtead of two.

By the Couty.—No caſe can be ſhewn, where an order was deemed bad, becauſe the examination did not appear on the face of the order.

Comb. 474. is a book of no great authority, and this caſe is contradicted by many others.—We are of opinion that it is not neceſſary that an examination ſhould appear on the face of the order; nor is it neceſſary that the examination of any perſon ſould be ſet forth. If any pauper was injured by a removal, the remedy might be
had