Benjamin Swift (1781-1847) Litchfield, , Law School Notes MS*X 340 Sw54

Notes created in 2016 by Whitney Bagnall, Special Collections Librarian, Columbia Law School, retired

Biographical Note:

Benjamin Swift was born on 3 April 1781 in Amenia, N.Y., the sixth son of Reverend Job and Mary Ann (Sedgwick) Swift, though some sources list his date of birth as 9 April 1780. The family moved to Bennington when Benjamin was five years old. Swift completed preparatory studies and attended the Litchfield Law School, Litchfield, Connecticut, in 1801. He was admitted to the bar in Bennington County in 1802, and removed to Saint. Albans, Vermont, in 1809. He served in the Vermont House of Representatives 1813, 1825, & 1826, served as a member of Congress from Vermont, 1827-1831, and as U.S. Senator, 1833-1837. He married Rebecca Brown in 1809 and they had nine children, six surviving. His daughter, Catherine, married George F. Houghton in 1851. Benjamin Swift died in Saint Albans, Vermont on November 11, 1847.

Physical Description:

Single volume, 31 cm.; full calf binding, blind tooled edges, five raised bands on spine.

Written inside front cover: “This book was written by the late Hon. Benjamin Swift of St. Albans, Vermont, while in attendance upon the law lectures of Judge Reeve at the Law School in Litchfield Connecticut, and has been carefully used and preserved by the family. (signed) George F. Houghton, surviving partner of Swift & Houghton, attys.” Presented to William Hall by Charles B. Swift, May 2nd 1879

Provenance:

Gift of Chief Justice John H. Watson, , 1924 of Montpelier to the Vermont Historical Society. John H. Watson was on Vermont Supreme Court 1899-1929 and was Chief Justice 1919-1929. Name of Benjamin S is found written upside down on p. 350.

Organization:

Written on both sides of page; written in a very small hand; topical headers throughout, paginated in outer upper corner 3-772; missing first page of text and possibly a title page; watermarked laid paper E M & Co. Capital letters written at the bottom of pages for binding arrangement [A contains pp. 1-40 or 20 leaves. B pp. 41-88 or 24 leaves; C pp. 89-128 or 20 leaves; D pp. 129-152, or 12 leaves; E pp. 153-200 or 24 leaves; F pp. 201-232 or 16 leaves; G 233-280 or 24 leaves; H 281-324 or 22 leaves; J 325-376 or 26 leaves; K pp.

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377-432 or 28 leaves; L pp. 433-476 or 22 leaves; M pp. 477-512 or 18 leaves; N pp. 513- 556 or 22 leaves; O pp. 557-604, or 24 leaves; P pp. 605-659 or 24 leaves; Q pp. 653-674 or 11 leaves; R pp. 675-718 or 22 leaves; S pp. 719-734 or 8 leaves; T pp. 735-772 or 19 leaves.]

Pages were trimmed for binding with minor loss of text, e.g. p. 206, 221, 320. Pages 233 & 234 are stained as if from old coffee or tea mugs. Odd numbered pages 1-55 have alphabetical letters in the right margin.

No numbered or dated lectures, all titles are in essay form with citations written in text, not in margins; sub heads are underlined and often written in a bolder, darker script; lecturers are not identified unless they are quoted by name in text.

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[A = 1-40] 3-22 Municipal Law [Begins mid-text because first page missing.] But lastly, when the words are dubious, the most universal & effective way of discovering the true meaning is from the reason & spirit of the Law and the literal construction may be denied when it is absurd or contrary to the reason & spirit of the Law. 3 Unwritten law 4 The evidence of legal customs of the common law is contained in the records of the several courts of justice in books of reports and judicial decisions and in the questions of the learned in the law to be explained by the judges of the law and it is the province of the judges to take notice of these customs & laws 6 Particular laws 8 Written laws 17 Persons capable of prosecuting on a penal statute 18 Qui Tam actions; in what cases it will lie 19 Of popular actions 20 Of statutes generally 21 Of the distinctions between the common law & lex mercatoria [final sentence] At the common law by month is meant a lunar month, but the Law Merchant, a month means a calendar month.

23 Rights The subject matter of ML is divided into rights & wrongs. [final sentence] The private relations out of which these relative rights grow are 1 Husband & Wife, 2 Parent & child, 3 Guardian & ward, 4 Master & servant.

24-73 Husband & Wife [Mr. Reeve p. 64; 69 Marriage which is the institution of the relation of Husband & Wife & it is regarded by the common law as a civil contract or institution & the requisites are the same as in making any other contract, which are that the parties be legally capable of making the contract of marriage. 2nd 24 Of the wife’s choses in action 27 Of the chattels real of the wife 28 Of the real estate of the wife 31 Of the right of the wife to the husband’s estate 33 How a wife may be barred of dower 34 Paraphernalia 38 Of the liability of the husband on act of his wife [B = 41-88] 41 Of the power of the wife to contract 45 Of the wife’s power to bind the husband by her contracts 49 Of the contracts of the husband & wife during coverture 52 Of contracts made between the husband & wife before marriage 54 Rules that come under no particular head [these are not numbered.] 56 Of the mutual inability of the H & W to testify for & against each other 59 In what cases the Husband may sue alone or join the wife at his election

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60 Cases in which the husband must sue alone 62 In what cases the H & W must be sued jointly & in what cases he must be sued alone 64 Of the disability of a married woman to devise her property 66 Of the celebration of the marriage contract by common law 67 Of persons incapable of marrying 68 Law of Connecticut 69 Of the doctrine of divorce in England 71 Of the doctrine of divorce in Connecticut [final sentence] But when the property is not visible, the Court found more difficulty as they could not create a [word] against the Hus’d in favor of the wife. Yet as this power was given them, they were determined in some way to execute it….more…and such practice has been sanctioned by the Supreme Court of Errors. 74 blank

75-90 Parent & Child [Mr. Reeve, p. 75; Of the contracts of Infants. Every child under the age of 21 is called an infant & that period of time before they arrive at the age of 21 is called their minority. 79 Of the consequences which follow to a minor by rescinding his contracts 80 Of the power of an infant to convey his real estate How an infant may be bound by his contracts in Chancery 81 In what cases the Parent is liable for the Infant’s contracts 82 Of an infants liability for wrongs committed by him civiliter & criminaliter 84 How an infant must sue & be sued 85 Of the right of the parent over his infant child 86 Of the duty of parents to their children & the duty of children to their parents 87 Rules that come under no particular head 88 Of the settlement of children [with poem] [C = 89-128] 89 Of illegitimate children 90 Of the settlement of such illegitimate child [final sentence] So also, if the mother be in transit when such child is born, i.e., passing from place to place, the settlement of the child is the place from whence she came. 1 Bla 459.

91-94 Guardian & Ward There are 2 kinds of Guardians in Eng. viz. guardian in socage as common law guardian & testamentary guardian, which are not known either of them in Conn, tho some of the states allow of guardian in socage. [final sentence] If the guardian waste the estate of the ward, there will be an application by an injunction on him. Hardress Rep. 96.

95-99 Master & Servant [Mr. Reeve, p. 95, 1 Slaves have not been known in England since the abolition of villenage; in this country it depends on the law of different states. It is however, customary to hold Blacks in slavery in many states. It was never recognized by statute in Connecticut, though many were

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formerly thus holden & bought & sold. Some contended that it was legal while others contend that it is not. [Final sentence] So if a premium should be given to the Mr to instruct the servant, courts would order the premium to be restored in [word].

100-110 Sheriffs The office & power of the sheriff is high & important. [final sentence] Such refusal of the sheriff is neglect of his duty & therefor the proper remedy is by action on the case. Cro Car 196; 2 Rolle 361.

111-114 Innkeepers Innkeepers may properly be said to be civil officers & are as liable for a neglect of their duty as sheriffs & are liable like a sheriff i.e. at all events with the same exceptions that of the act of God & the publick enemies. 113 The remedies of the Innkeeper against his guest [final sentence] But we have no such custom here but the innkeeper would be obliged to pursue his remedy by action & might attach the property.

115-150 Executors & Administrators The duty of an executor & an administrator is nearly the same. An executor is appointed by will, an administrator is appointed by Ecclesiastical courts in England and by judges of probate in Connecticut for the purpose of settling the estate of a deceased person.

[D = 129-152] 151-152 blank

[E = 153-200] 153-191 Bailment Bailment is a delivery of goods by one person to another on a contract or condition expressed or implied that they shall be restored to the Bailor or according to his direction as soon as the purpose for which they were delivered shall be answered. 192-200 blank

[F = 201-232] 201-228 Contracts A contract is defined to be an agreement upon sufficient consideration to do or not to do a particular thing. 2 B.C. 442; Pow C.6. Many contracts are good in a court of law so as to bind the parties and a court of equity will at the same time treat them as void & will rescind them. 201 Who may contract 202 Persons legally ineligible to bind themselves by contract 204 Contracts made through mistake or error, when set aside 205 In what cases contracts will be set aside for fraud 208 Cases where the compensation for the fraud is the recovery of damages in a Ct of Law 1st Of sale by warranty of the vendor

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2nd Of false affirmation by the vendor 3rd The concealment of some fact y the vendor which he ought to disclose 210 In what cases Ct of Chan will set aside contracts for fraud which they infer from the transaction 211 In what contracts no recovery could be had in a Ct of Law that might be relieved against in Chan 212 Contracts made to impose on third persons 213 Of conveyances fraudulent as against 216 Of contracts obtained by undue restraint of one’s will or liberty 217 Of the confirmation of contracts obtained by duress 218 Of restraints no amounting to duress 219 Contracts void on the ground of some defect in them 220 Illegal contracts 222 Marriage brokage bonds 224 Unlawful conditions 228 Mode of computing interest 229-232 blank

[G = 233-280] 233-259 Contracts [Gould p. 239, 247, 233 Consideration of contracts 240 Of mutual considerations; mutual promises 242 Of contracts required to be in writing. By Stat 29th Car 2nd (commonly called Stat of Frauds & Perjuries), there is a distinction in several cases between written & parol contracts & many contracts are of no validity unless reduced to writing. 3 B.C. 159; Pow 269. 248 Contracts in consideration of marriage 249 Contracts for the sale of lands, tenement or hereditaments or any interest therein 256 Of contracts not to be performed within a year from the making of them 257 Of general rules applying to the several clauses of the Stat. The construction of this Stat of Frauds & Perjuries is the same in a Ct of Chan as in a Ct of Law 258 Who must sign this note or memorandum?

260-289 Covenant The words covenant, contract, promise and agreement are often used in law as synonymous and are so in this general 1 Pow 244-5. 260 Action of covenant broken 271 The rule of damages in an action of covenant broken 274 Rule of pleading in an action of cov’t broken. It is a rule of pleading in an action of covenant broken that the Plaintiff may assign as many breaches in a cov’t as he pleases. 275 Cov’ts which do or do not run with the land 280 Of Covenants to save harmless [H = 281-324] 282 Of pleading in the action of covenant broken 285 Of pleadings on the part of the defendant 288 Of joint & several covenantors & covenantees

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290-297 Action of Account The action of account is founded on an express or implied contract that one who had rec’d the property of another to account for will render his reasonable account.

298-360 Assumpsit Assumpsit is an action which was not known at Common law but was introduced by Stat of Westminster 2nd. It is commonly called action on the case or action of trespass on the case & before the making of this statute, no action would lie on a promise to do a certain act unless the promise were entered into covenant or deed. But this statute gave a remedy. 308 When a demand must be made 309 In what cases notice is necessary 310 Averments 311 Defence in the action of assumpsit 312 Tender: in what cases a tender may be made; the effects of a tender 315 What acts constitute a good tender 316 The place of tender Tender of collateral articles 317 Time of tender; to whom tender is to be mad 318 Of pleading a tender 320 Accord & satisfaction The requisites to an accord 322 Statute of limitations. There are certain statutes which limit the time for bringing actions which are different in different states. [J =325-376] 325 Award & arbitrament

361-363 Action of Debt

363-364 Detinue 365-366 blank

367-395 Powers of Chancery The general powers of Chancery are not very easily defined. The essential difference between a Ct of Chan & Law is said by Lord Kaimes to consist in two particulars, first that it is the province of the Court of Chancery to abate the rigor of the common law. Secondly, that a Court of Chancery decide according to the spirit of the rule and not according to the letter. Mitford 5. Again it is said that Fraud, Accident and Trust are particularly cognizable in Chancery. Fourthly it is said by some that Courts of Chancery are not bound by rules or precedents. 1 Roll 374; 10 Mod. 1. 368 Of the powers of chancery in [word] a specific execution of agreements 374 Of the powers of chancery to issue injunctions [K =377-432] 377 Their powers to enforce a specific execution 378 Their power of rescinding contracts For a mistake as to one’s rights

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379 For Fraud For imposition 380 For imposition on third persons For duress For illegality Of the confirmation of void contracts 381 Their power over usurious contracts 382 Their power of relieving against penalties 383 Their power over mortgages Their power over securities for compound interest 385 Their power of martialing assets Their power over trusts 387 Of bills for discovery of Evidence Of commissions for taking depositions 388 Their power over lost deeds or bond Their power of compelling partition 389 Their power of rectifying mistakes in contracts Their power of protecting the property of a feme covert 390 Their power of relieving against lapse of time 391 Their power of compelling a party to deliver up on obligation which is paid Their power of issuing injunction 392 Rules omitted & which come under no particular head. When two persons have multiplicity of suits growing out of one matter 396 blank

397-464 Private Wrongs 397 Slander Oral slander 398 Words actionable in themselves 402 Colloquium 404 The construction of slander 405 Of pleadings in slander 406 Of retailing slander Of the general issue 407 Of the justification of slander 408 When slanderous words are justifiable being spoken by counsel in an action 409 Words not in themselves actionable 410 Of slandering one’s title “to call the heir apparent a bastard is to speak anything Of giving similar words in evidence 411 Libels 412 Of publication of libels 413 Of words actionable when written 414 Libels sine scriptis Scandalum magnatum 415-416 blank 417 Action on the case for a malicious prosecution

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419 Of vexatious lawsuits 420 Trover 423 Replevin 427 Of the action of trespass vi et armis for false imprisonment 430 Of the liability of officers [L = 433-476] 436 Assault & battery 446 blank 447 Trespass vi et armis for injuries to personal property 455 Trespass on the case arising ex delicto 456 Trespass on the case

465-466 blank

467-475 Forms 467 Declaration on an officer’s receipt 468 Declaration on Note of Hand 469 Declaration on a receipt for property given to a Sheriff 471 Citation & petition for gaol delivery by poor debtors 472 Declaration in an action of assault & battery 473 Declaration in trespass upon the freehold Of Warranty Deed & Mortgage 475 Trespass upon the Statute 476 blank

[M = 477-512] 477-537 Pleas & Pleadings 477 Of the declaration [N = 513-556] 527 Writs of error 532 Error in fact 533 New Trials [13 causes for new trial are enumerated] Restrictions on the foregoing rules 538 blank

539-543 Writs of Audita Querula, Mandamus, Habeas Corpus, Prohibition

544-575 Lex Mercatoria/Law Merchant The law merchant embraces 1 bills of exchange; 2 promissory notes & negotiables; 3 policies of insurance; 4 charter parties; 5 partnership accounts; 6 factorage; 7 laws of navigation. [Nine points are enumerated to explain the differences between the common law and merchant law] 547 Of promissory notes negotiable & bills of exchange 549 How far an infant is liable by law merchant

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Bank notes 551 Acceptance of a bill of exchange 552 Mode of transferring a bill 554 The obligations of the drawer of a bill 555 The duty of the holder of a bill of exchange 556 The manner of giving notice [O = 557-604] 558 Acceptors liability 559 Mode of proceeding in suits by law merchant 562 Of proof 565 Consideration 565 Policies of insurance 569 Partnership accounts 570 Charter parties 572 Bottomry bonds Factorage 573 Laws of navigation

576-588 Law of Evidence The first & principle rule of evidence is that no evidence is admissible but the best evidence your case will admit of, i.e. that your particular case will admit of. 578 Person incompetent to testify 583 Rules omitted under the first division The number of witnesses require to prove a fact 584 Presumptive evidence Hearsay evidence 585 The mode of compelling a witness to appear in court 586 Protection of witnesses & suitors while attending on court & going to & from the same Records how proved 589 blank

590-614 Real Property Property is divisible into two kinds viz real & personal. Real property is immoveable as to place & perpetual as to duration; personal property is moveable as to place wherever the owner pleases & liable to stray & be destroyed. [P = 605-659] 615-616 blank

617-650 Mortgages

651-659 Descent 651 Of distribution under Stat. Car. 2nd. Real property is acquired either by purchase or descent [Q =653-674] 654 Distribution under the Statute in Connecticut

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656 Distribution under the statute of . All estates, both real & personal in the State of N.Y. goes exactly in the descending line according to the regulation of the Stat. Car. 2nd. 658 Of descent under the English law.

660-681 Devises The law of nature gives no one dominion over his possessions except for his own life. Therefore the right of devising depends wholly upon positive law. The law of England and Conn gives man this right of devising 664 Attestation 667 Who may devise 669 Revocations 670 Implied revocations 674 Republication [R = 675-718] 675 Executory devises 676 Parol evidence 679 Mode of proof 680 Vested remainders; contingent remainders 682-683 Executory Devises 684-688 Execution 686 Law in Conn

689-704 Deeds Alienation by deed is the most common method of giving title to real estate Requisites to a deed; consideration 692 Fraudulent conveyances 693 Voluntary conveyances 694 Warranty 696 Quit claim deeds 697 Escrows 700 Modes of conveyance 702 Of incapacity to alien 705-709 Trespass signifies any injuries to real property 710-712 Ejectment 713-714 Nuisance, spelled “Nusance” 715-723 Waste

[S = 719-734] 724-771 Criminal Law Publick wrongs or criminal law is some times called Crown Law or pleas of the crown because by the infraction of publick rights of a community, the King (if any) is supposed to be the person defamed & therefore the proper protector for every public offence. 4 Bla 2. 725 Punishment in general 726 Who are exempt from punishment

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728 Principals & accessories 732 Felony 733 Benefit of clergy 734 Homicide Justifiable homicide [T = 735-772] 735 Excusable homicide 736 Homicide se defendendo 738 Felonious homicide 739 Voluntary manslaughter 740 Involuntary manslaughter 741 Murder 747 Petit Treason 748 Arson 750 Burglary 754 Larceny 760 Mixed larceny 763 Forgery 765 Perjury 769 Of Bail in criminal cases 771 Cost in Criminal cases 772 [beginnings of an alphabetical index of topics; one column Abatement through Actions; followed by evidence that six leaves have been torn out] 22 blank leaves after the Index

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