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

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28
CASES ruled and adjudged in the


1776.

It has been faid, that it is obligor's fault not to have the payment indorfe on the bond : but it is not in his power, for the money muft be paid before he is entitled to a receipt ; and then, if the obligee is a bad man, he may refufe to indorfe it.

We are, therefore, clearly of opinion, that an affignee takes the bond at his own peril ; and that he ftands in the fame place as the obligee, fo as to let in every defalcation which the obligor had againft the obligee, at the time of the affignment, or notice of affignment. The only intent of the act being to enable the affignee to fue in his own name, and prevent the obligee from releafing after affignment.

Judgment for the Defendant.


TOWNFHIP of FALLOWFIELD verƒus TOWNSHIP of MARLBOROUGH.

O

N Certiorari to Cheƒter, to remove an order and judgment of feffions, for the removal of James Henry.

Exceptions taken to the proceedings below–That id did not appear the pauper had been examined ; nor was any reafon fet forth why he was not : That natural juftice required he fhould be heard before he was removed. And the following cafes were cited :–2.Salk.488, to fhew the examination muft be by two Juftices.–2 Stre.1092. S.P. And.238.–Sett.Cat.c.ı8.

But it was anfwered: ıth. That it was not neceffary that the examination fhould appear on the face of the order. Juftices are not obliged to fet forth evidence, or every little circumftance ; that when nothing is fet forth which appears to be wrong, the Court will make an intendment in favour of their order. An order to a common intent good. ı Stra. 2ıı That it is not neceffary to fet forth the funmons and examination of the party.− ı Stra. 474.630.2ıı. 22d Lord Rey. 1406.

2d That even if it was neceffary, thereare words in the order equivalent, viz.em due confideration, which implies due examination–3 Burn.Sefs.Cas. Alfo the words due proof. Alfo, the words on the examination of Samuel Henry at otherwife

That in the cafes from Salkeld, there appeared a defect of examination on the order, it having been taken by one Juftice inftead of two.

BY THE COURT.–No cafe can be fhewn, where an order was deemed bad, becaufe the examination did not appear on the face of the order.

Comb.474. is a book of no great authority, and this cafe is contradicted by many others.–We are of opinion that it is not neceffary that an examination fhould appear on the face of the order; nor is it neceffary that the examination of any perfon fould bee fet forth. If any pauper was injured by a removal, the remedy might be

had