Volume 1 — Aikens's Vermont Reports (1825–1828)

<p>Separate considerations, proceeding from two covenantees, and separate interests to be received by them, do not make a covenant, otherwise apparently joint, a several covenant. Distinctive words qualifying the promise, and carrying it in the entirety to each of the promisees, as, to them and each of them, are also necessary to make it a several covenant.</p>

ERROR. — The defendant in error now moved the Court, that the writ be quashed, because it appeared from the record, that the same was brought to reverse a judgment of the County Court, from which judgment the plaintiffs in error might have appealed to this Court. Wherefore, he averred, that the said writ was improvidently issued, and ought to be quashed.

<p>THIS was an action of ejectment, to recover the seizin and peaceable possession of a certain piece of land, called No. 18 5, laid to the original right of Zebulon Frost, in the town of Burlington.</p> <p>To prove a right of possession, the plaintiff offered a deed from Samuel Lane to Joshua Staunton, dated June 22, 1792, and recorded the 29th October, 1792, the description in which is this: “ all my right, title, interest, property, and demand, “ of, in, and unto two hundred acres of land, situate, and “ lying and being in Burlington aforesaid, bounded as follows : “ beginning at a hemlock tree, spotted, standing on the south- “ ern bank of Onion river, which is the upper river corner of se- “ ven hundred acre farm, or tract of land which Samuel Lane “ originally purchased of Ira Allen ; thence south 30 degrees “ west, 254 rods, to a stake and stones; thence north 60 degrees “ west, 160 rods to a stake; thence north 30 degrees east, to a “ bass-wood tree, marked D. S. standing on the southern bank “ of Onion river; thence along the river, up stream, to the first “ mentioned bound, containing 206 acres, the said six acres is “ reserved for highways;” a deed from the said Joshua Staunton to Sally Peaslee, the daughter of said Joshua, dated January 14, 1804, and recorded in Burlington, February 1, 1804, and in Williston, on the 9th of February, 1804, of “the whole of that “ farm, lying and being in the towns of Burlington and Willis-“ton, in the county of Chittenden, aforesaid, containing one “ hundred and forty acres, be the same more or less, and is the “ same farm which I purchased of Samuel Lane, Esq. on which “ David Staunton formerly lived;” also the will of Sally Peaslee, the parts of which, material in the present case, are as follow, viz. “ I give, devise, and bequeath all my real and personal es- “ tate, property, and effects of every kind and description what- “ soever, wheresoever the same may be, whereof I have power “■to dispose, whether in possession, remainder, reversion or ex- “ pectancy, unto my friends, Stephen Mix Mitchell, Solomon “ Miller, and Charles Mitchell, to hold the same unto the use “ of them the said Stephen, Solomon, and Charles, their heirs, “ executors, administrators and assigns, forever, upon the trusts, il nevertheless, and to, and for the uses, &c. hereinafter limited, “ &c. that is to say, that the said Stephen, Solomon and Charles, “ shall hold the same, or any or every part thereof, or shall “ sell and dispose thereof, as they or any two of them, or the “ survivors or survivor of them shall deem most expedient, for “ the benefit or advantage of my children, according to the proM visions of, and in the manner hereinafter specified in my will.” —Then follow the dispositions of the property among her three children, and the conditions on which they shall hold the same; and, among other things, she gives to her daughter Lucinda Maria Peaslee, “ the exclusive benefit and advantage of my “ farm of land, lying partly in the town of Burlington, and partly “ in the town of Williston, and containing about two hundred “ acres; which said farm, or a part thereof, formerly belonged “ to my father Joshua Staunton, and was occupied, or some part “ thereof was heretofore possessed, by David Staunton.” “And “ my will is, that if either of the trustees herein before named “ refuse or decline to accept the trust, or shall die or become incapacitated, before the trusts are excecuted or performed, “ that then the other trustees or trustee may nominate and ap- “ point another or other trustee or trustees in his or their place “ and stead, who shall have like powers, and all the rights, es- “ tate and interests of the said trustees or trustee, so refusing, “ declining, dying, or becoming incapacitated; provided, that if “ such nomination or appointment becomes necessary, after ei- “ ther of my children shall attain the age of fourteen years, “ then the said appointment and nomination shall be made with “ the consent or approbation of my said child or children.”— Also, an indenture or conveyance' from Charles Mitchell to the plaintiffs,, of which the following extracts contain all that is material in the present case : “ This Indenture, made this 9th “ day of October, 1822, between Charles Mitchell of the first “ part, and Walter Mitchell and William W. Turner of the se- “ cond part, witnesseth, that whereas the said Charles Mitchell “ was, by the last will and testament of Mrs. Sarah H. Peaslee, “ widow of Zaccheus Peaslee, constituted and appointed one of “ the trustees of her estate, for the uses and purposes in the said “ will particularly specified, and Stephen Mix Mitchell, one “ other of the trustees, and acting executor, under the said will, “ hath since died intestate; and whereas Maria Peaslee, one of “ the children, and only daughter of the said Sarah H. Peaslee, “ hath desired the said Charles Mitchell, because, &c. to relin- “ quish the trust aforesaid, and to convey and transfer the same, “ and the estate so held for her use and benefit, unto the parties “ of the second part, so as to enable them to dispose of the said “ estate, as he the said Charles might or could at anytime have “ done; and whereas the said Charles is convinced, that the objects of the said trust can be better effected by the appoint- “ ment and nomination of the said parties of the second part, “ as trustees, in the place and stead of the said Stephen Mix ” Mitchell, deceased, and of the said Charles Mitchell, and by “ the conveyance and transfer thereof to the said Walter Mit- « chell and William W. Turner, for the purposes aforesaid ; now, “ therefore, this Indenture witnesseth, that the said Charles “ Mitchell, in consideration of the premises, &c. and of five “ dollars, &c. hath given, granted, bargained, sold, assigned, “ quit-claimed and set over, and by these presents doth give, “ grant, bargain, sell, assign, quit-claim, and set over unto the “ said Walter Mitchell and William W. Turner, all and singular “ his right, title, interest, claim, and demand whatsoever, of, in “ and to all and every part of the estate and property so as afore- “ said devised by the last will and testament of Mrs. Sarah H. “ Peaslee, for the use and benefit of her daughter, Maria Peas- “ lee, wheresoever the same may be situated, which estate and “ property, hereby intended to be transferred, is more particu- “ larly described and specified in the said last will and testament, “ to which reference is to be had for the description thereof, as “ if the same were herein particularly recited. To have, &c. “ in trust and for the uses and purposes set forth and specified “ in the said will, and for no other use or interest whatever. “ And the said Charles, under the power contained in said will, “ doth nominate, constitute and appoint the said Walter Milch- “ ell, as a trustee under the said will, in the place and stead “ of Stephen Mix Mitchell, deceased, which nomination is to be “ concurred in by Solomon Miller, &c. And the said Charles “ doth for himself nominate and appoint the said William W. “ Turner as a trustee under the said will, in the place and stead “ of the said Charles, and the said Charles doth hereby re- “ nounce and relinquish the trust aforesaid, in regard to the said “ estate so devised to the said Maria Peaslee, in favor of the “ said two above named appointees.”</p> <p>Also, a like conveyance from Solomon Miller to the plaintiffs, being, in substance, a transcript from the foregoing.</p> <p>The plaintiff also introduced parol evidence, tending to show that David Staunton and others, under the said Joshua, had entered upon a piece of land upon Onion river, within the bounds of the deed from Samuel Lane to said Joshua Staunton, and had continued said possession until the entry of the defendant; but did not attempt to show any title derived from the original proprietor.</p> <p>The defendant claimed to hold by virtue of a title from the original grantee: and, for the purpose of making out his title, read a copy of a deed from Zebulon Frost, the original grantee, to Edward Burling, conveying his right in said town; also, copies of deeds, conveying the same right-from Edward Burling to Samuel Burling, from Samuel Burling to Samuel Stone, from Samuel Stone to Thaddeus Tuttle and Stephen Pearl; and from Abraham Jones, sheriff and collector, to Thaddeus Tuttle; and an original deed from the said Thaddeus Tuttle and Stephen Pearl, to the defendant. The defendant introduced the record of the Proprietors of Burlington; from which it appeared, that the lands in said town had been divided into severalty, before the date of the deed from Joshua Staunton to Sally Peaslee ; that the tract of land contained in the deed from Samuel Lane to Joshua Staunton had been divided: one hundred and forty acres of which, marked on the place as No. 7, being set to the right of--, and the remaining sixty acres, being the land in question, was designated on the plan as No. 185, and set to the right of the said Zebulon Frost.</p> <p>To the reading of the deed from Joshua Staunton to Sally Peaslee, the defendant objected ; because it did not convey the land in dispute; but the court permitted it to be read ; to which the defendant excepted.</p> <p>The defendant also objected to the reading of the deeds, or indentures from Solomon Miller and from Charles Mitchell, for two reasons: first, because, by the terms of Mrs. Peaslee’s will, the trustees, having accepted, could not appoint other trustees in their own room; and, that the said appointment was not in conformity to the authority vested in said trustees. Secondly, because, at the time of the execution of said conveyances from said Solomon Miller and Charles Mitchell to the plaintiffs, and long before, the defendant was, and had been, in the actual possession of said land, claiming to hold the same adverse to the claim of the plaintiffs, and of those under whom they claim, and that said conveyance was therefore void; but the Court permitted them to be read. To which decision of the Court the defendant excepted.</p> <p>It is also agreed that it was proved on trial, that the defendant had been in possession of the premises about six years; had built a house, and cleared about twenty acres; claiming the same, adverse to the claim of the plaintiffs, and of those under whom they claim.</p> <p>The above case agreed to by</p> <p>in support of the-exceptions.</p> <p>The defendant contends, That by the deed from Joshua Staunton to Sarah H. Peaslee, nothing passed except the 140 acres, which is now known as No. 7.</p> <p>It is true, that in this deed, the land is said to be the farm where David Staunton formerly lived, and that the deed from Lane to J. Staunton, conveys 206 acres, being the said lot No. 7, and the land in question. But, it is to be observed, that the deed from Lane to Staunton was before any survey or plan of the town. When the town was surveyed, this tract was divided, and No. 7. was set to the right under which Staunton claimed, and the remainder, No. 185, to another right. There is no pretence that David Staunton ever lived on that part of the tract afterwards known as 185, or had any possession thereon. The expression, therefore, in J. Staunton’s deed to Mrs. Peaslee, “ the farm on which David Staunton lived, ” instead of conveying 185, must be understood as limiting the conveyance to No. 7. This is to be inferred, from the fact that he gives the number of acres in that lot; and it is not to be presumed, after the town was divided, that he claimed to have any right to 185.</p> <p>It may be inferred from the circumstances, that Staunton acquiesced in the division of the town. As he never had any possession upon 185, any possession upon that tract, now No. 7, could not be construed to extend to No. 185. After the division, when 185 was set to another proprietor, any possession of Staunton, on the other part, must be considered as ceasing, and from the division, he must be considered as having abandoned any constructive possession of 185, to the true owner of the land.</p> <p>2. The trustees under Mrs. Peaslee’s will had no power to appoint other trustees in their own stead. The will provides, that if any of the trustees shall refuse to accept, die, or become incapacitated, the remaining trustees may appoint in the room of the trustee declining, dying, &c. If the trustees had all declined accepting the trust, nothing could have been done under the will by them; they could make no appointment of other trustees. But the trustees did accept, and they had a right after the death of S. M. Mitchell, to appoint one in his room, and here their power ceased. The appointment of W. Mitchell majr be in conformity to the will; but the appointment of Turner is void, and the authority of thé other two trustees, S. Miller and C. Mitchell, still continues. It may also be observed, that the appointment of these new trustees is partial; they are only made trustees so far as concerns the interest of Maria Peas-lee, and for all other purposes have reserved their own authority.</p> <p>3. The conveyance from S. Millerand C. Mitchell to the plaintiffs is void by the statute, by the adverse possession of the • defendant.</p> <p>The indenture between these parties canpot be considered in any other light, than a conveyance of Maria Peaslee’s share. This is the language of the instrument, and it can have no other construction. The legal interest of Mrs. Peaslee was vested in the first trustees by her will, and every conveyance or transfer of that interest, must be subject to the laws of the land.</p> <p>The first exception taken by the defendant is, that Charles Mitchell and Solomon Miller, originally named trustees by Mrs. Peaslee’s will, having accepted the trust, had no power, bythe will, to transfer their interest in the trust estate, and make an appointment of other trustees.</p> <p>It does not appear from evidence, that the aforesaid trustees ever accepted the trust, or did any act under the will, except the transfer of their interest in the estate of Maria Peaslee, one of the legatees, and the appointment of Walter Mitchell in the place of Stephen M. Mitchell, deceased, and of William W. Turner in the place of the said Solomon Miller and the said Charles Mitchell. S. M. Mitchell, being sole executor of the will, and guardian fo the legatee above mentioned, had the whole charge of the estate until his death, and there was no occasion for the other trustees named in the will to accept or refuse, or take any part in executing the trusts. After the death of S. M. Mitchell, the other trustees being applied to, declined executing the trust committed to them, and at the request of the legatee above mentioned, transferred their interest, and made an appointment of other trustees as aforesaid.</p> <p>The will expressly authorises the trustees named in the will, in case either should refuse, or decline, or die, before the trusts are executed, the other trustee or trustees may appoint another or other trustee or trustees in his or their stead ; and who shall have all the power of the trustee or trustees so refusing, declining, &c. It is a settled rule of law, that wills shall be construed liberally and beneficially, and so as to carry the real intention of the testator into effect.</p> <p>In the present case, it appears that S. M. Mitchell, one of the trustees named in the will, had deceased, and that the other two surviving trustees, being unwilling to execute the trusts, exercised no other power than to supply the vacancy occasioned by the death of S. M. Mitchell, and to substitute other trustees in their own stead, and in the same instrument declining and surrendering the trust. It is contended that this power was vested in the surviving trustees, and necessarily exercised, for the purpose of carrying into effect the real intention of the testator.</p> <p>Second exception. That admitting the surviving trustees had power to transfer their interest, and make a new appointment of trustees, still the deed or instrument by which the transfer is made, is void under the statute “To prevent fraudulent speculations, and the sale of choses in actionthe defendant being in possession adverse to the plaintiffs.</p> <p>It is here admitted, that the legal estate vested in the trustees, and the equitable estate in the cestui que trust. The legal estate must always vest somewhere: it vests also in executors and administrators, and sales made by them, under the order of Court, acting as they do in the right of others, are not within the reason or letter of the law. — SwifCs Digest, 121.</p> <p>The design of the common law on this subject, is the same; to prevent maintenance and litigation, and the sale of disputed titles. Instead of a will, suppose it had been a deed in trust, conditioned to convey to the heir, and minor, on arriving at full age, at which time the trust was ended. In the mean time a person attains possession, holding the same adverse. Would a conveyance to the cestui que trust be void under the statute ?</p> <p>There are clauses in'this will which authorise the trustees, in their discretion, to deed to legatees, on arriving at full age ; but they have not exercised it. They have transferred the estate, and continued the trust in other hands, for the same uses which were originally designed by the testator, and it vests for the same legal and equitable purposes in the cestui que trust, as it did before the transfer. Here is no sale of a disputed title; no fraudulent speculation. The conveyance cannot come within the spirit and design of the law: nor do any of the mischiefs arise intended to be remedied by it.</p> <p>Third exception. That the deed from Joshua Staunton to Sally Peaslee does not convey the land in dispute.</p> <p>This deed conveys all Joshua Staunton’s farm in Burlington and Williston, which he purchased of Samuel Lane, containing 140 acres, more or less, and being the same farm on which David Staunton formerly lived. By recurring to the deed of Samuel Lane to Joshua Staunton, it appears that he conveyed, by a warrantee deed, 206 acres, by metes and bounds, and the same was recorded in June, 1792; which bounds covered the 60 acres in dispute. It appears that the town of Burlington was divided in 1798, and the 60 acres set to the right of Zebulon Frost, being 6 years after Lane’s deed to Staunton. D. Staunton deeded to his daughter, Sally Peaslee, in January, 1804, being short of 14 years from the time he received the deed from Lane.— His possessory title at that time was not complete, and was probably the reason why he conveyed 140 acres, more or less, and being all he purchased of said Lane. Mrs. Peaslee and her executor continued in possession, under her deed, until she was disseized by the defendant, about 8 or 9 years since, making a continued possession of 24 years, from 1792 to 1816.</p>

<p>ON the trial below, in which there was a verdict and judgnient for the plaintiff there, the defendant filed the following bill of exceptions:</p> <p>Ellis vs. Adams. Chittenden County Court, February Term, 1824.</p> <p>This was an action of trover in the common form, for an iron bound waggon.</p> <p>To prove the declaration, the plaintiff offered Paul Yarney, who swore, that in September, 18:9, he sold and delivered to the plaintiff, for 25 dollars, a waggon not ironed, and afterwards agreed with the plaintiff to get it ironed for him; that he engaged the defendant to iron it at the defendant’s shop, and told him the waggon belonged to Ellis. That the defendant did iron the waggon, and charged it to the witness, who charged it to the plaintiff. Price of ironing, 34 dollars.</p> <p>Also, George Robinson, who swore that he had a demand for collection in favor of Jonathan Bosworth, against a son of the plaintiff, and took the plaintiff’s note for the same, payable in a waggon; that Ellis informed him he had a waggon at the defendant’s shop for him ; that he called on the defendant, who told him that Ellis had a waggon at the defendant’s shop, which, being ironed in a particular manner, was worth only sixty dollars.</p> <p>The plaintiff then read the following deposition, “ I Jonathan Bosworth, of Berlin, in the county of Washington, of lawful age, testify and say, that on or about the 15th of February, 1821, I went to Mr. Robinson’s, at Burlington, for a waggon which he was to receive for me, of a Mr. Ellis of Colchester. Mr. Robinson being absent, I applied to Charles Adams, who I understood, was to iron the waggon, and inquired for a waggon which Mr. Robinson had there from Mr. Edlis. Mr. Adams informed me there had been a waggon there which Robinson and Mr. Ellis were concerned in; but he knew nothing about it; or there was none there then; or to that effect. If Mr. Robinson wanted a waggon, his order would be good.</p> <p>(Signed) “Jonathan Bosworth.”</p> <p>The plaintiff then introduced Peter Sharp, who swore that in the spring of 1822, and a few days before the commencement of the plaintiff’s action, he went with the plaintiff to the defendant’s office, where the plaintiff demanded the waggon. The defendant told the plaintiff that he knew nothing about his waggon, and cared nothing about it.</p> <p>The defendant proved that the waggon was ironed in the fall of 1819, and remained about his shop until the spring of 1821. That said waggon, with a number of others, on the 9th of April, 1821, was attached at the suit of John Abbott vs. the defendant; and was, by the attaching officer, put into the possession of Matthew Rice, near the defendant’s house, where it has ever since remained.</p> <p>The Court charged the jury, that, if the defendant did not object to the authority of Bosworth at the time he called for the waggon, he could not now dispute it.</p> <p>To which the defendant excepted; and his exceptions were allowed. Whereupon this writ of error was brought, in which the following errors were assigned :</p> <p>1. It appears by the proceedings aforesaid, that the County Court admitted the deposition of Jonathan Bosworth to be read to the jury, as evidence of a demand for said waggon, without its being shown that said Bosworth had any authority from said Ellis to make any demand: whereas, by the laws of this state, said deposition ought to have been rejected.</p> <p>2. It appears that said waggon has not been converted by said Charles; but that the same is where said Andrew can claim and receive it when he will.</p> <p>3. It also appears, that said Charles Adams requested said County Court to charge the jury, that, unless they found that Bosworth was authorized by said Ellis to demand said wag-gotl) they mils^ f°r the defendant; but that said Court charged the jury that, if the defendant did not object to the authority of Bosworth, at the time he called for the waggon, he couid not then dispute it. Whereas, said Court should have instructed the jury, that any demand by Bosworth was insufficient, unless he was .properly authorized by Ellis.</p> <p>4. The common error.</p> <p>There was no conversion in fact. The waggon being taken by the officer as Adams’ property, was no conversion by Adams. Ellis could call on the officer for the waggon, or demand compensation, as he pleased ; or, he could have taken the waggon from Mr. Rice’s shop, where it now is.</p> <p>There was no demand and refusal. The testimony of Bosworth was not sufficient to show any demand. He called on Adams for the purpose of making inquiry after the waggon, but did not make any demand, nor request to have it delivered to him.</p> <p>The Court erred in charging the jury, that, if the defendant did not dispute Bosworth’s authority at the time, he could not dispute it on trial.</p> <p>Bosworth did not pretend to have any authority, and it would have been idle to have disputed it. He inquired for a waggon, which Mr. Robinson had; and was answered, that Mr. Robinson’s order was good. He pretended to no authority from any one, much less from Ellis, whom, it would seem, he had not seen.</p> <p>It appears from the bill of exceptions, that the waggon remained in Adams’ possession from the fall of 1819, until April 9, 1821, when it was attached as his property; that Bosworth called for it February 15, 1821, and was told, that there had been a waggon there, in which Robinson and Ellis were concerned, but that it was not there then; or, that he (Adams) knew nothing about it. That Ellis called for it in the spring of 1822, and was told by Adams that he cared nothing, and knew nothing, about it; and that Adams knew by Robinson for what purpose it had been left. From these facts, the defendant in error contends, that the plaintiff has converted the property.</p> <p>1. If, when Bosworth called for the waggon, Adams doubted his authority, it was his duty to have informed him, that Bosworth might have an opportunity of satisfying him upon the subject; for as long as his authority was not questioned, he would, of course, presume that it was not doubted; and while a different reason was given for not delivering the property, would not deem it necessary to prove his authority. It therefore follows, as a necessary inference, that if the authority of the person demanding, is not denied at the time of making the demand, it is admitted, and can never afterwards be questioned. — 2 Esp. Dig. 203/</p> <p>2. The reason given for not delivering property when desnanded, (if any is given,) is the only one upon which, the person refusing can afterwards rely in his defence; and if he make any misrepresentation, or false declaration, by which the owner is misled or deceived, it is, in law, a conversion. Adams having ironed the waggon in the fall of 1819, and had it in his possession, in or about his shop, from that time until April, 1821, must be presumed to have known where it was when Bosworth called for it, in February, 1821; and declaring at that time, and under such circumstances, that there was no waggon there, or, that he knew nothing about it, he was guilty of a conversion.— 1 Esp. N. P. C. 83. 2 Esp. Dig. 204. 2 John's Cases, 411.</p> <p>3. The waggon having been attached as Adams’ property, by virtue of a writ against himself, and left by the officer near his shop and house, and having remained there, and these facts proved by his own witnesses, he must necessarily have known the situation of it. And when Ellis called for it in the spring of 1822, (if not before,) was bound to inform him on the subject. Declaring, therefore, at that time, that he knew nothing, nor cared nothing about it, and refusing to give it up, or give any information concerning it, amounted to a conversion, if it had not already been converted. His negligence in not informing the officer who made the attachment, that the waggon was not his, was a conversion. — 6 Jac. L. D. 311. 2 Esp. Dig. 204. 5 Burr. 2827.</p>

IN ERROR, HANNAH LILLIE, and one Zebina Lillie, administrators of Benjamin Lillie, deceased, had brought two actions of Trover, the one against the plaintiff in error, and the other against one Arzah C. Dean, for sundry articles, the property of the said Benjamin in his life time. The property sought to be recovered in those actions was afterwards returned, or otherwise accounted for, to Hannah Lillie; and she agreed to discontinue those actions, which was accordingly done.

SLANDER. — The declaration, after the usual introduction, but without any colloquium, proceeds: “Yet the said Lyman, well knowing the premises, but contriving and maliciously intending to defame and injure the said James, and to cause him to be brought into publick scandal and disgrace, and to cause him to be esteemed and suspected to be a person guilty of the crime of perjury, heretofore (to wit.) on the tenth day of February, 1825, and at divers other times previous and…

AT the January term of this Court, after a trial upon the general issue, and a verdict for the plaintiff, the defendants filed the following motion: And now the defendants, after verdict, and before judgment, move this Hon. Court, that said verdict may be set aside, and a new trial granted, for the following reasons, to wit: the action was ejectment. The plaintiff, in his declaration, claimed *he eas* 30, in the 2d division of land in Hines-burgh.

IN ERROR. THE record, in this case, discloses the following facts: That on the 30th of January, 1824, one Hiram Burnham gave his note to one Walter Cumber, payable to him, or order, on demand, for $47,87; that $6 were paid to said Cumber, and endorsed upon said note.

THIS was an action of assumpsit, brought to recover of the Bank of Burlington the sum of $800, said by the plaintiff to have been held by him in bills of the said bank, and to have been destroyed by… Held: that the holder may recover at law. — 2 Campb. 211. Chit, on Bills, 167,169. But there is no case, where there has been a recovery at law, for bank bills destroyed. All the cases relate to bills of exchange, promissory notes, or checks.

IN ERROR. Boston brought his action of assumpsit before the County Court, for certain services and disbursements, as the attorney of Pierson in two suits in the Court of King’s Bench, in Montreal.

<p>THE pleadings, in this case, were as follows:</p> <p>“Heman Lowry, of Burlington, in the County of Chittenden, is attached to answer unto Isaac Warner, of the same Burlington, in a plea of trespass on the case, for that, whereas, the said Isaac Warner, heretofore, to wit, at said Burlington-, on the 9th day of February, 1821, before George Robinson, Justice of the Peace, recovered judgment, in his, the said Isaac’s favour, against one Truman Barney, by the consideration of said Justice, and confession of the said Barney, for the sum of 118 dollars damages, and twenty-five cents cost of said judgment, as by the records thereof, in the said Justice’s office remaining, appears. And after-wards, to wit, on the 27th day of October, 1821, the said Warner took out a writ of execution, of the price and cost of 25 cents, in due form of law, on the judgment aforesaid, in favour of the said Warner, against the said Barney, for the aforesaid sums, dated the day and year last aforesaid, signed by said justice Robinson, made returnable within sixty days from the date thereof, and directed to the sheriff of Chittenden county, his deputy, or either constable of Jericho; in said county, and after-wards, to wit, on the 25th day of December, 1821, at said Burlington, the said Warner delivered the said writ of execution, the same then being in full life, and wholly unsatisfied, to Heman Lowry, who then, and for a long time before, and since that time, was, and still is, sheriff of said Chittenden county, duly appointed and authorised to serve, execute and return, all writs, processes and executions, to him directed, within said county of Chittenden; to serve, execute and return according to law. And the said Heman Lowry, sheriff as aforesaid, having received the said execution, not regarding his duty as such sheriff, but contriving, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said Isaac Warner in that behalf, and to deprive him of the benefit of his said judgment and execution, and prevent his collecting the said sums of money mentioned in said execution, did not execute and return said writ of execution, according to law, within sixty days from the date thereof; but wholly neglected and refused so to do — whereby the said Warner is greatly injured, and has wholly lost the benefit of his said judgment and execution.</p> <p>Second count,</p> <p>And whereas, the said Isaac Warner, heretofore, to wit, at said Burlington, on the 9th day of February, 1821, before George Robinson, Esq. one of the justices of the peace, &c. recovered one other judgment, in his, the said Warner’s favour, against the said Truman Barney, by the consideration of said justice, and the confession of said Barney, for the sum of 118 dollars damages, and 25 cents costs of said judgment; as, by the said record thereof, in said justice’s office remaining, appears. And afterwards, to wit, on the 27th day of October, 1821, the said Isaac took out a writ of execution, of the price and cost of 25 cents, on the said last mentioned judgment, in due form of law, in favour of said Warner, against said Barney, for the last mentioned sum of 118 dollars damages, and 25 cents costs, dated the day and year last aforesaid, signed, &c., made returnable, &c. and directed, &c.; and afterwards, to wit, on the 25th day of December, A. D. 1821, at Burlington, aforesaid, the said Warner delivered the said last mentioned writ of execution, (the same being in full life, and wholly unsatisfied) to Heman Lowry, who, &c., to serve, execute, and return, according to law. (*)And tbe said Isaac Warner, in fact saith, that the said Truman Barney, at the time of the delivery of the said last mentioned execution to the said Heman Lowry, so being sheriff as aforesaid, and from thence until the return day of the said last mentioned execution, was within the said sheriff’s precinct, and the said sheriff at any time during that time, might have arrested and taken the said Truman Barney, by virtue of the said last mentioned execution, in favour of the said Warner, if he would so have done; whereof the said Heman Lowry, so being sheriff as aforesaid, during all that time, had notice, to wit, at Burlington, aforesaid. Yet, the said Heman Lowry, so being sheriff as aforefaid, not regarding the duties of his said office, but contriving, and intending wrongfully and unjustly to injure, prejudice and aggrieve tbe said Warner, and to delay and hinder him in and from the collection of his said last mentioned execution, did not, nor would he at any time, within the life of the said last mentioned execution, although often requested so to do, arrest and take the said Truman Barney, and him commit to the jail of the said county, as by the said last mentioned execution, he was commanded, and by law he ought to have done; (there being no goods, chattels, or estate of the said Barney, shewn to the said sheriff, or found within his precinct, whereon to levy, or wherewith to satisfy the same) but wholly neglected so to do; whereby the said Warner hath been, and is greatly injured, and prevented from the collection of his said last mentioned execution, and hath wholly lost the benefit of his said last mentioned judgment and execution.</p> <p>Tima count.</p> <p>And whereas, also, [ the same as the second to the asterisk, (*) and then proceeds] — and afterwards, to wit, at said Burlington, on the 26th day of December, 1821, the said Heman Lowry, so being sheriff as aforesaid, by virtue of the said last mentioned execution, thereon arrested and took the said Truman Barney, and him committed to the jail of said county, within said prison, of which said Lowry is keeper, until he should pay and satisfy to the said Warner his said damages and cost, mentioned in the said last mentioned execution, for which the said Truman was committed to jail as aforesaid; yet the said Heman Lowry so being sheriff of said county as aforesaid, not regarding his duty as such sheriff, but contriving, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said Warner in that behalf, and to deprive him of the benefit of his said last mentioned judgment and execution, and of the benefit of the said commitment of the said Barney, to the jail of said county as aforesaid, until he should pay the said Warner his said last mentioned damages and costs, specified- in said last mentioned execution, did not make return on said execution last mentioned, of his said commitment of said Truman Barney, to the jail of said county, by virtue of the said last mentioned execution, at the return thereof, according to the precept thereof, and as by law he ought to have done; but therein wholly failed, and made default. And at the return day thereof, to wit, on the 26th day December, 1821, falsely and deceitfully made return upon said last mentioned execution, into said justice’s office, that he could find neither the body or property of the said Barney with» in his precinct, whereon to levy and satisfy said last mentioned execution; as by the said return endorsed on said last men» tioned execution, remaining in said justice’s office, fully appears; by means of which, the said Truman Barney hath béen liber» ated and discharged from his imprisonment, by virtue of the said last mentioned execution, in favour of said Warner; and the said Warner is thereby greatly injured, and deprived of the means of collecting the said sums of money, mentioned in the said last mentioned execution, and hath wholly lost the benefit of the same, which is still wholly unpaid and unsatisfied to the said Warner, &c.</p> <p>To his damage two hundred dollars, &c.</p> <p>Plea in bar to counts.</p> <p>And now the defendant here in Court, comes and defends the wrong and injury, when, &c. and pleads and says, that as to the first and second counts in the plaintiff’s declaration mentioned, he ought not to have and maintain his said action thereof against him, because he says, that although true it is, that the plaintiff recovered a judgment in his favour, against the said Truman, as set forth, and that one Prosper Blackman, a deputy of the defendant, received the said execution, issued on said judgment, on the day, and in' the manner and form set forth; yet, the said defendant saith, that before he received the said, execution of the plaintiff, for the purposes aforesaid, to wit, on the 25th day of December, 1821, he the said Prosper had arrested the said Truman Barney, and at the time of the said Prosper’s receiving the said execution, had the said Truman Barney in his custody, by virtue of a criminal process, to wit, a warrant, issued and signed by George Robinson, one of the justices of the peace in and for said county "oí Chittenden, in due form of law, founded on a complaint made and signed by Lewis Chapin, one of the grand jurors for the town of Jericho, in said county, therein charging the said Truman with having, with force and arms, impeded and hindered one Samuel Page, a legal executive officer, acting under the authority of this state, in the execution of his said office; which said complaint and warrant was directed to the sheriff of Chittenden county, or either of his deputies, to serve and return, and made returnable forthwith to the said Robinson, justice of peace as aforesaid. And the said Prosper Blackman, having said Barney in custody, by virtue of said warrant, did thereupon, on the day and year last aforesaid, at Burlington, aforesaid, surrender and deliver up the said Barney to the charge of said justice, then holding a court at said Burlington, on said complaint, to be dealt with according to law. And afterwards, to wit, on the 26th day of December, 1821, the said Prosper Blackman made diligent search throughout his precinct, and could not find either the body or property of the said Barney, whereon to levy and satisfy said execution; and thereafterwards, to "if, on the day and year last aforesaid, caused the said execution to be returned unto the office of the said Robinson, justice of the peace as aforesaid, with the following return thereon endorsed, made and signed by the said Prosper Blackman, one of the legal deputies of the defendant, to wit:</p> <p>“Chittenden county, ss. December 25th, 1821. Then received this execution, for the purpose of levying and collecting the same, and the within named Truman Barney, at the time of the receipt of this execution, as aforesaid, being in my custody, by virtue of a warrant issued by George Robinson, justice of the peace for the county of Chittenden, on a complaint signed by Lewis Chapin, one of the grand jurors for the town of Jericho, in said county, and made returnable forthwith before said Robinson, justice of the peace as aforesaid, at his office in Burlington; and thereupon, on the said 25th day of December, by virtue of said warrant, I did, in obedience thereto, deliver up said Barney to said justice, holding a court on said complaint, to be dealt with according to law. I was therefore unable to arrest the body of said Barney, or commit him to jail on the within execution, he being in legal custody on said warrant; and afterwards, on the 26th day of December, 1821,1 made diligent search and inquiry throughout my precinct, and can find, neither the body or property of the said Barney, whereon to levy and satisfy this execution: I do, therefore, return the same wholly unsatisfied.” All which the defendant is ready to verify and prove: wherefore, he prays judgment if the said plaintiff ought to have or maintain his said action thereof, against the defendant, and that he may recover his costs.</p> <p>By his attornies, Griswold and Follett.</p> <p>PIeatoM count and i*suo'</p> <p>And as to the third count, in the plaintiff’s declaration mentioned, for further plea in this behalf, the defendant pleads and says, that he is not guilty in manner and form as the plaintiff in his declaration hath alleged, which he prays may be inquired of by the county.</p> <p>By his attornies, Griswold and Follett.</p> <p>And the plaintifflikewise, by Allen, his attorney.</p> <p>To the defendant’s plea in bar, there was a demurrer, and joinder in demurrer.</p> <p>The question is, was it the duty of the sheriff to surrender his prisoner into the custody of the Court, or to hold him in custody before the Court, during his trial.</p> <p>On civil process, the defendant, unless out on bail, is supposed to plead in custody of the sheriff.</p> <p>If the sheriff surrenders his prisoner to the custody of the Court, in what capacity does the Court act ? Is he then a judicial or an executive officer ?</p> <p>The sheriff having Barney in his custody, the delivery of this execution to him, is a legal arrest of Barney upon it. — 2 Esp. N. Pi 607.</p> <p>Blackman was a proper officer, attending justice Robinson’s court; the justice, therefore, had no need, and, it would seem, from the words of the statute, no authority to appoint any one to supply his place.*</p> <p>It appears, by the pleadings, that plaintiff delivered the execution against Truman Barney, to the defendant’s deputy, with but one day’s life. That when received, Barney was in custody, upon a warrant, and was surrendered to the court for trial; that on the next day, the officer made search for said Barney, and not finding him, returned the same, unsatisfied.</p> <p>Defendant contends, that the plaintiff has no cause of action against him, because, 1. Barney was not subject to arrest, on said 25th December, 1821. — 3 Mass. 288. McNeils’ Case. — Meekins vs. Smith, 1 H. Blackstone, 636, and various authorities clearly show, that a party is privileged from arrest, eundo et redundo et manendo. If it should be said this is a personal privilege, it may be replied, that we are not to presume this privilege was waived; and without it was waived, it is clear, that the officer could not commit him, even if Barney had been attending a civil suit. But as he was attending a criminal prosecution, we contend,</p> <p>2. That the officer had not power to arrest him. This results from the necessity of the case. It would be futile to allow the officer to arrest, without the power of committing. Those who are arrested on criminal warrants, are in the custody ofthe state, for the time being; and the rights of creditors over the bodies of their debtors, are, pro hac vice, merged in the paramount claims of the state. It is not necessary to inquire into the nature of the crime, upon which, &c. as there must be some general rule, equally applicable to all cases, whether capital or inferiour, and if the sheriff, while transporting a convict to the state prison, is not to be deprived of his charge, it follows, that the officer, in this case, had not power to make the arrest.</p> <p>3. The officer did all which it was in his power to do, and is, therefore, to be exonerated. The officer could not be required to remain, waiting the termination of the suit before justice Robinson, in order to arrest Barney. It is to be presumed he had business in other places, and could not, consistently with his publick duties, remain through the day, to make this arrest.— There was no apparent necessity, nor did his duty as an officer require, that he should forego all other business, and remain through the day, to execute a process, then for the first moment thrust into his hands. If he in good faith, endeavoured to execute it in a reasonable time, the law will hold him harmless. It appears, that on the next day after receiving the execution, he made diligent search, &c. but not finding Barney, returned the execution, unsatisfied; and for all his trouble, gets nothing, except the vexation of this suit. — 4 Bac. Abr. 222.</p>

THIS was an action of assumpsit, upon a note, dated April 20, A. D. 1822, for the sum of $200, payable sixty-four days after the date thereof. It appeared in evidence, on the trial, that the said note was signed by the defendant, and also by Beeman and Clark, who were the two first signers. That Beeman and Clark presented the note to the bank for discount, which was refused, and they took the note away.

IN CHANCERY. THIS was a bill in equity, brought to foreclose the equity of redemption on a farm of land in North Hero. Robinson, one of the defendants, having died pending the suit, his death was suggested on the record, but his administrator had not been cited in. The facts in the case will sufficiently appear, from the following opinion of the Court, which was pronounced by

THIS was a case of petition for partition, brought under the act, entitled ‘4An act, for the partition of real estate, in certain cases.”* The petitioners set forth in their petition, that they were the owners, in fee simple, of fifteen sixteenths, and the petitionees; of one sixteenth of a certain tract of land in Brandon, containing an ore-bed, as tenants in common — and that they were desirous of holding and enjoying their portion thereof in severalty.

IN ERROR. THE original action was debt, on the Statute of 1817,* * in which Hall declared against Adams; for that he suffered and permitted his ram to go at large,off his premises;' and that said ram was found in the enclosure of Hall, among his sheep. 'f j,ere waS) first5 a plea in abatement, that the writ ought to abate and be quashed, because there was no minute or memorandum in writing, made by the magistrate, at the time of the commencing the suit, of the true day,…

<p>IN ERROR.</p> <p>THIS was a writ ®f error brought to reverse ft judgment of Rutland county court. The original action was an action on book account. Judgment to account being given, and a reference to auditors had, the auditors made a special report, deetailing the evidence, upon which their report was founded. From the report it appeared, that the plaintiffs’ account against the defendant, amounted to $151,36, which was not disputed. That the defendant’s account against the plaintiffs, was $33,40; and his account against one Lucinda Burt, a sister of one of the plaintiffs, was $123,41, making in the whole the sum of $156,81. That on the hearing before the auditors, the defendant insisted, that Charles Burt, one of the said parties, had agreed with the defendant, that he might take up goods, at their store, to the amount of the account against Lucinda Burt, and that the account should be received in payment. That he gave evidence tending to prove this fact; the most material part of which con sisted of the depositions of the said Lucinda, now Lucinda Stone, and of William Stone, her husband, which were as follows:</p> <p>“I, Lucinda Stone, of &c. testify and say, that Charles Burt was at Rockingham, and told me, that he had settled the demand against me, in favour of Doctor Joel Green, it being the said Dr. Green’s bill for medicine and attendance on me during a fit of sickness in the fall of 1816, and the winter and spring of 1817. My brother Charles said, that he refused to settle Dr. Green’s bill, on account of its being so high, but that the doctor finally reduced it down, till he closed it with him. And I further depose and say, that Doctor Joel Green has this day, under his hand and seal, given me a' discharge' in the words and figures following, to wit.:</p> <p>‘I, Joel Green, of Rutland, in the county of Rutland, for divers good causes and considerations, do hereby release William Stone and Lucinda Stone, from all liability or claim for medicine and attendance, furnished the said Lucinda, before her intermarriage ; and will hereafter look to Charles Burt, or Fay and Burt, for my pay for the same.</p> <p>‘Witness my hand and seal, this llt^i day of Nov. 1823.</p> <p>‘Joel Green, (l. s.)’</p> <p>“And further this deponent saith not.</p> <p>(Signed) “Lucinda Stone.”</p> <p>“I, William Stone, of, &c. testify and say, that some time in August, 1818, Charles Burt, of Rutland, in the county of Rut-land, was at my house in said Rockingham, and in conversation w^h mJ w^e Lucinda, the said Charles declared, that he had settled a demand against the said Lucinda, (being a doctor’s bill for medicine and attendance of Dr. Joel Green, of Rutland, ¿ur¡ng sickness of the said Lucinda, in the fall of 1816,) and paid the said demand to the said Joel Green; and in the course of the Conversation, the said Charles remarked, that Green’s bill was too much, and that they compromised for a less sum than Green first demanded ; and, from his conversation, I understood, that his partners and the said Burt paid ; and at the time of my marriage with the said Lucinda, it was understood, that judge Benjamin Burt was to pay the said Charles the necessary bills, during the sickness of the said Lucinda; and I have heard Judge Burt say, that he is willing to pay the said Charles the said bill, and that the said Charles is now indebted to him. And I further depose and say, that I have received a full discharge from the said Green, previous to making this deposition, and further the deponent saith not.</p> <p>(Signed) “William Stone.”</p> <p>To the admission of these depositions before the auditors, the plaintiffs objected, on the ground of the .interest of the deponents ; but the auditors overruled the objection, admitted the depositions, and reported, that they found no balance due to either party, and that the defendant ought to recover his costs.</p> <p>Upon the return of the report into Court, exceptions were taken thereto, upon the facts disclosed therein; but the Court accepted it, and rendered judgment for the defendant thereon, which is the judgment now sought to be reversed.</p>

IN ERROR. Francis Slasson commenced his action before a justice of the peace, against Josiah Davis and William, Davis, on a note of hand, by them executed to him ; which action went by appeal to the county court. At the county court, the defendants pleaded, first, the general issue: and. secondly, a plea in offset, of a book account, in favour of Josiah Davis against the plaintiff, which issues were joined to the Court.

<p>In 1805, the legislature of Vormont passed an act, entitled “An act, incorporating certain Turnpike* Companies in the Westorn Counties in this State,” containing, among others, the following provision: “ That eachcorporation shall be liable to pay all damages which may happen to any person, from whom toll is demandable, which may arise from neglect of any bridge, &cc. within their respective limits, after t)ic same has been made and approved, &c.</p> <p>Hold — That where one of said companies, having erected a long and high bridge with railings, after-wards permitted the same to be travelled, with no other muniments on the sides than a line of timbers eighteen inches square, it was a neglect of said bridge, within the meaning of the act.</p> <p>Held, also, that where, from the extraordinary fright of a horse, from a cause not chargeable to the corporation, it is doubtful whether a common railing would have restrained him from going off said bridge; still, as the corporation were guilty of neglect, they were answerable for the loss occasioned by his running off the side of said bridge.</p>

IN ERROR. THE plaintiff brought his action against the defendants, before a justice of'the peace, in which he declared against them, in a plea of the case as follows: “For that, whereas, heretofore, to wit. on tbe 12th day of August, 1824, at, &c. in consideration that the plaintiff, at the special instance and request of the defendants, would deliver to the defendants a certain horse of him the said plaintiff, of great value, to wit. the sum of eighty dollars, in exchange…

THIS was an action of ejectment, brought to recover the seizin and possession of lot No. 11, in the 7th range of lots in Williamstown. Plea, Not Guilty. On the trial of the issue, there was a verdict for the plaintiff;' and the defendants took the following EXCEPTIONS. The plaintiff read in evidence letters of administration, and proved the defendants to have been in possession of the lot in question, when the writ was issued and served.

SCIRE FACIAS — reciting a former judgment against the administrator, the issuing of two executions against the goods, chattels and lands of the deceased, in the hands of the said administrator, and a return of nulla bona thereon — suggesting a devastavit, and citing the said Isaac Kimball to show cause, if, &c. why execution should not issue against him.

THE question arising in this cause was brought before the Court in the following case slated. Supreme Court, January Term, 1824. This was an action of debt on a penal bond, alleged in the declaration to have been lost, by time and accident. The plaintiff proved the existence of the bond described, and then offered himself as a witness, to prove the loss of it.

THIS was an action on book account, in common form. The defendant, after praying oyer of the plaintiff’s book, demurred to the plaintiff’s declaration and account read to him on oyer, and for special causes of demurrer, he set down the following, to wit. First.

IN ERROR. THESE were two writs of error, both sued out at the same-time, and both brought to reverse the same judgment; the one assigning for error, an error in law — the other, an error in fact. The defendant, in both cases, pleaded the pending of the one suit in abatement of the other; to which pleas there were demurrers, and joinders in demurrer.

IN ERROR. THE bill of exceptions, which was tendered on the trial of the issue in the Court below, and which became a part of the record there, was as follows Chittenden county Court, Sept. Term, A. D. 1823.

<p>THE facts in this case will sufficiently appear, in the follow- ' ing opinion of the Court, delivered by</p>

THIS case was submitted the same day, and is nearly allied to, the foregoing case of Page vs. Hurd and Whitney, trustees of Thayer. The judgment of the county court was rendered by nihil dicit against Langworthy, the defendant, and after a hearing, in damages, they were assessed, and the defendant .appealed to this Court. The plaintiffs now moved to dismiss the appeal, so as to retain the judgment they recovered in the court below.

THIS was a writ of audita querela, by which the complainant sought to set aside a judgment which the defendant had obtained against him, and an execution issued thereon, upon which a sale of his property was threatened.

THE plaintiff declared against the defendants, in a plea, that to the said Asa Fuller, treasurer as aforesaid, they the said defendants render the sum of ten thousand dollars, which to the said Asa, as treasurer as aforesaid, the said defendants justly owe, and from him as treasurer as aforesaid, unjustly detain, for that, whereas, at the session of the legislature of this state, holden at Montpelier, in October, A. D. 1820, the said Shiveric Holmes was duly appointed…

IN ERROR. Bartlett Mahoney brought his action of tresspass before a justice of the peace, against Rodney Durkee, for taking and driving away twenty-four swine, alleging them to be his property, and of the value of one hundred dollars; which action was appealed to Chittenden county court, and there tried, upon the general issue, at their February term, 1825.

THIS was an action of debt, on jail bond. The commitment of the defendant to the common jail in Chittenden county, upon an execution in favour of the plaintiff against him, was alleged to have been on the 1 ‘¡tth day of May, 1817; the execution of the said bond, on the same day: an escape from the liberties of said jail, (which was the breach assigned,) on the 1st day of November, 1819, and the assignment of said bond by the sheriff to the plaintiff, on the 30th day of…

THIS was a motion for a new trial, founded on exceptions to the opinions of the judge expressed in his charge to the jury, and which were certified as follows: This was an action of indebitatus assumpsit, claiming three hundred dollars, for so much money had and received by the defendant, to the plaintiff’s use. Plea — the general issue, and verdict for the .plaintiff.

IN ERROR. THE plaintiffs below brought their action of assumpsit against Sawyer, on a note of hand. Pending the action in the county court, the same was referred, by the agreement of the parties, to referees, who, at the next term of said court, returned their report, which was in common form, finding for the plaintiff the amount of the note.

THIS was an action of debt, on bond, dated the 4th day of May, 1811, and executed by Howard, as principal, and Peters, as surety, to the plaintiffs, for the penal sum of one thousand dollars, conditioned as follows: “The condition of the above obligation is such; that, whereas, the said Elias Howard did, on the second day of May, instant, pray out a writ of replevin against the said John Frothingham, Samuel May, Arthur Tappan, and Henry D. Sewall; now'if the said Elias…

IN ERROR. AN action on book account was brought by Barlow against Reed, before a justice of the peace, and by appeal, was removed to the county court, where judgment to account, by confession of defendant, was rendered, and the cause sent to an auditor, who made report to the Court in favour of Barlow, (the plaintiff below,) for the sum of one hundred dollars, which was objected to by the defendant, but accepted by the Court, under a rule, that same should be set aside, in…

THIS was a writ of replevin, to replevy animals taken damage feasant, and impounded. The defendant pleaded in abatement, that the plaintiff had not given security for costs of prosecution, in the same manner as is provided in the case of the issuing of writs of attachment, agreeably to the act of the 25th October, 1822. Demurrer and joinder in demurrer.

THIS was a motion for a new trial, founded on exceptions to the opinion of the Court, as expressed in the charge to the jury, on the trial of the issue at the last term. The action was brought to recover damages, for a breach of the covenant of warranty, contained in a deed of land, from the defendant to the plaintiff. Plea, non infrégit convcntionem, concluding to the country, and issue joined. On the trial, the plaintiff read in evidence, to the jury, 1.

IN ERROR. THE plaintiff brought bis action of trespass against the defendants, before a justice of the peace, for taking and driving away three cows and three heifers, of the value of one hundred dollars, which action was carried, by appeal, to the county court.

IN ERROR. THE case below was trespass, for taking a cow and a heifer, which was brought by appeal from the judgment of a justice to the county court. [In the county court, there was first a plea in abatement, which was overruled, on the ground that it did not appear from the record, that such plea had been interposed before the magistrate.

IN ERROR. ERROR, from the judgment of the county court, upon a verdict for the defendant. The material facts in the case, and the grounds upon which the judgment was reversed, will sufficiently appear, in the following opinion of the Court, which was delivered by

THIS cause came before the Court on a motion for a new trial, filed by the plaintiff, founded on exceptions taken on the trial of the issue, which were allowed, and certified as follows: The action was ejectment, brought to recover the seizin and peaceable possession of “thirty-six acres of the south-east corner of lot No. 277, in the town of Grand-Isle.” Under the issue of not guilty, the plaintiff showed title to the premises, in Alexander Gordon, and his representatives,…

THIS was an action on book account; for articles delivered to the said Sally, previous to her intermarriage with the said Elisha Reynolds.

THIS was an action of indebitatus assumpsit, for 'money had and received. The questions reserved on the trial of the issue. were brought before the Court, on the following case stated.

IN ERROR. The plaintiff below declared against the defendant there, in a plea of the case.

IN ERROR. REUBEN WHEELER brought his action of assumpsit against Abel Tomlinson, late sheriff of the county of Addison, charging that he recovered a judgment before the city court, inVergennes, on the first Tuesday of November, 1822, against one Friend Adams, of Panton, in said county, for $1207,21 damages, and for $43,46, cost; that on the 6th day of said November he obtained his regular writ of execution upon said judgment, directed to the sheriff of said county of…

THIS cause came before the Court, on a motion to set aside the verdict, and for a new trial. The fficts in the case, and the' points relied upon by the counsel in argument, will sufficiently appear in the following opinion of the Court, which was delivered by

IN ERROR. THE plaintiff below brought his action before a justice of the peace, in which the defendant below, was attached to answer, “in an… Held: used, occupied, and enjoyed; and beiDg so indebted, he the said Eleazer, in consideration thereof, after-wards, to wit, on the day and year first aforesaid, at Bristol, aforesaid, undertook and faithfully promised the said Zina, to pay him the said sum of money, when he should be afterwards thereto requested. Second count. .

THIS was a motion by the plaintiff, for a new trial, founded upon exceptions taken to the decision of the county court, of certain questions of law, arising .upon the jury trial, and placed upon the record by the agreement of the parties; and which passed to this Court, fora final decision, agreeably to the twelfth section of the act,, in addition to The Judiciary Act, passed November 18, 1824.

<p>THE question arising in this cause, came before the Court in the following case stated.</p> <p>Ejectment, for the east half of lot No. 7, in the 3d division of lands in said town of Sheldon. The right of the plaintiffs to recover in this case, is admitted, unless the following facts constitute a valid title in the defendant, to the land in question:</p> <p>By the charter of the town of Sheldon, one full share or right of land is granted to the first settled minister in said town, and' the lot in question was legally severed to said right. Some time in the fall of the year 1815, Stephen Beach, then residing in Fair-field, in said county of Franklin, an ordained priest in the episcopal church, was, at said Fairfield, by the bishop of the eastern diocess, in which is included the state of Vermont, instituted a priest over the episcopal churches in said Fairfield and Sheldon, by the approbation of said churches. Afterwards, in the spring of 1817, said Beach removed into said town of Sheldon, and continued there until the spring of 1823-, (during all which time he officiated as priept or pastor over said two churches) when he removed out of tliie state. In December, 1820, said Beach deeded the land in question to the defendant. He was at all .times subject or liable to be removed b,y order of said bishop, and did remove, under and by order'of such bishop.</p> <p>■ If, from these facts, the defendant has made out a title to the land in question, judgment is to be rendered for his costs; otherwise judgment to be rendered, for the plaintiffs to recover the land, with ten cents damages, and their costs.</p>

INDICTMENT for malicious mischief.-^The first count in the indictment, charged, “that the said Briggs on, &c. with force and arms, at, &c. did maliciously, mischievously and wickedly put, place and confine in a certain yard, or enclosure, then and there belonging to him the said Arnold Briggs, and by him oc'cupied and possessed, two three years old bay gelding colts, and one two years old bay mare colt, the property of one Davis Durfee, of, &c. and of the value of one…

THIS was an appeal by a creditor to tbe estate oí John Burlingame, from three decrees of tbe probate court for tbe district of Rutland, touching the settlement of said estate. The appellant assigned several causes, appearing in the record of the probate court, for which he claimed a reversal of the several decrees aforesaid; to which there was a demurrer by the administrator.

COVENANT BROKEN. — Samuel Wetherbee was attached, to answer unto Azarias Williams, in a plea of covenant broken, wherein the said Azarias complains, for that the said Samuel, by his certain deed in writing, signed by his hand, and sealed with his seal, by him well executed, dated the 26th day of June, A. D. 1802, and acknowledged and recorded in due form of law, for and in consideration of two hundred dollars, paid to him the said Samuel, by one Daniel Howe, of, &c. did…

THIS was an appeal from an order of two justices of the peace, for the county of Windsor, made at Hartland, in said county, on the Sth day of May, 1824, for the removal of Daniel Badger, Phebe Badger his wife, and Aaron Badger and Bucina Badger their children, as paupers, from said town of Hartland, to said Williamstown.

IN CHANCERY. THIS was a bill in chancery, in which the orator stated in substance, that on the tenth day of October, 1817, he and the said William Nelson entered into a partnership, as manufacturers of stove-pipes and tin and sheet iron wares, for the term of five months.

<p>it is no sufficient reason for not setting aside an erroneous judgment, that the material facts wer* ioply.testified to, by incompetent witnesses 5 for non constat, but they may he proved .by other witnesses, or the incompetent witnesses be purged of their interest.</p> <p>The cause of action against an officer, for not paying over monies collected on execution, does not ac■crue till demand made; and that is the period at which the stature of limitations commences to ■ run against such action.</p> <p>An action on the.case for neglect of duty,«in not paying over monies by him collected, does notji* against a deputy sheriff, but the remedy of the party injured is against the sheriff only.</p> <p>The distinction between the liabilities of a sheriff and those of his deputy to thq party injured, is, that while each are liable for a misfeasance, the former, and not the latter, is liable for a non-feasance of such deputy, in the duties of his office.</p> <p>Aildif.a deputy may maintain an action on-a receipt for property by him attached, it is not in virtu» of his office, but in virtue of the personal contract between him and the receipt-man.</p>

<p> IN ERROR. </p> <p>THE judgment sought to be reversed by. this writ of error, was rendered by the county court of Windsor county, in an action oh the ease, brought to recover the penalty for forcibly passing a turnpike gate, wijj^ut having first paid toll, cowary to the provisions of the 8th section of the act incorporating the Green Mountain Turnpike Company. On the trial below, the defendant having pleaded not guilty, with notice of special matter, the plaintiff, to prove the issue on his part, read in evidence the act incorporating said company, passed Nov. 2, 1799, in which it is enacted, among other things, “that if any person shall attempt forcibly to pass any gate on said road, without having paid the legal toll at said gate, such person shall forfeit and pay a sum not exceeding fifty dollars, nor less than one dollar, together with double damages and costs, to be recovered by the treasurer of said corporation, to and for the use thereof, in an action on the case, before any court having competent jurisdiction.”</p> <p>The third section of the act also provides, “that no person shall be obliged to pay any toll at either of said gates, who shall be going to or from publick worship, or to or from any grist mill, or saw mill, or on militia duty, or on the ordinary domes-tick business of family concerns.”</p> <p>It was admitted that the corporation had performed all the conditions of the act, so as to entitle them to the benefit of all the provisions thereof, and that the plaintiff below was their treasurer.</p> <p>He also offered in evidence the deposition of one Zebrah Wright, taken at Ludlow, in which it was certified by the magistrate, as the cause of taking, that the deponent was rendered incapable of travelling and appearing at Court, by reason of bodily infirmity. The defendant below objected to the reading this deposition, and offered to prove to the Court, that the deponent was not at the time of taking the deposition, nor at any time since, rendered incapable of travelling and appearing at Court by reason of bodily infirmity, and that the plaintiff knew the same. But the county court rejected the proof, and admitted the deposition.</p> <p>The plaintiff, further to maintain the issue on bis part, produced Stephen Wright, the toll-gatherer, as a witness, who testified, that on the evening of the fifteenth day of February, eighteen hundred and twenty-three, the defendant drove up in a sleigh drawn by two horses, to the east side of the toll-gate, in said Ludlow, and demanded to pass said gate, free of toll* and assigned as a reason, that he was exempted from paying toll, by the act of 1822, hereafter referred to; that the said Wright stated to him, that he was not thereby so exempted, and that the defendant thereupon forcibly passed said gate; that after he had so passed, said' defendant stated that he had been to mill, to Cavendish; that the said Wright then stated to him, that he had passed in the morning of that day without paying toll, and that now if he was coming from mill, he ought to pay one toll, which the defendant refused to pay. And the said Wright further testified, that the defendant had bags of flour or meal in said sleigh at said time, and that he saw no other loading. And it was acfmittpl by the defendant, that he «Égsed said gate at the times mentioned, without paying toll. «</p> <p>And the defendant, to maintain the issue on his part, offered to read in evidence to the jury, an act of the legislature of the state of Yermont, passed on the 21st day of October, 1822, entitled “an act, authorizing the Green Mountain Turnpike Company to re-survey and alter their road,” in which it is provided, among other things, that the inhabitants of Mountholly (of whom the defendant is one,) shall have the liberty of passing the turnpike gates in Ludlow and Shrewsbury, free of toll; and also offered to prove, that said act was passed with the consent and by the procurement of said company, and that after said act was passed, the said company accepted the same; to prove which acceptance, the defendant offered no other evidence than that the said company had made a survey of the road, as contemplated to be altered by said act, but that they had not recorded said survey. And the defendant further offered to prove,*that just previous to the passing of said act, said company did agree with the defendant, that if he would not oppose the passing of said act, that he and the inhabitants of Mountholly should pass toll-free at said gate. To all which the plaintiff did object, and said Court thereupon'did decide, that said act and proofs should not be given in evidence to the jury.</p> <p>The defendant then gave evidence to the jury, from which it appeared, that he went from home, for the purpose of going to mill at Cavendish, for a Mr. Nathaniel Pingry; that he carried a grist for the said Nathaniel, which he brought back in flour, and also some bags of flour for a son of said Nathaniel Pingry, and at the same time carried a part of a load of ashes, to Proctor’s store, near said mill; that the village at Proctor’s, in Cavendish, was the place where he usually went to mill, and for the purposes of trade, and to get his mechanick’s work done; that, in going to Cavendish, the route would be through said gate.</p> <p>After the defendant’s evidence was closed, the plaintiff offered the said Zebra Wright as a witness upon the stand, to testify in chief. To this the defendant objected, but the county court overruled the objection, and admitted the witness, who, in addi» , tion to the facts contained in her deposition, testified to other matteVs, tending to impeach the testimony produced by the defendant. And the plaintiff thereupon withdrew the deposition.</p> <p>The defendant did insist to the jury, that from the testimony, they ought to find, that the defendant, at the times of passing said gate, was going to or from a grist-mill, or on the ordinary domestick business of family concerns, and that at each of said times, he informed the toll-gatherer of the same, before passing said gate. And the defendant did, on trial, insist in point of law, and did request said Court so to charge the jury; that if they found that the defendant, at the time of passing said gate, was going to or from a grist-mill, or on the ordinary domestick business of family concerns, within the meaning of the act aforesaid, he was not liable to the penalty of said, act; and also that if they found as aforesaid, he was not liable to the penalty, even though he neglected to clal^fkhis privilege, unless actual force was used in passing the gate, and that the proof did not show that such force had been used at the first passing said gate, on said day.</p> <p>But said Court did refuse so to charge said jury, but did give in charge to said jury, that it was necessary for the defendant, noi only to prove that he was entitled to the privilege by reason of going to or from a grist-mill, or on the ordinary domestick business of family concerns, but that he must also prove, that he gave notice of and claimed such privilege, to the toll-gatherer, before passing the gate; and that if the jury believed the notice was not so given in the morning, at the first time passing said gate, they ought to find for the plaintiff, even if they found that such notice was given before the second passing. And if they believed he then opened said gate, as stated in the deposition, that it was a forcible passing the gate.</p> <p>To all which decisions of the Court, in admitting and rejecting testimony as aforesaid, and the charge of the Court, the defendant did except.</p> <p>A bill of exceptions being thereupon allowed, this wi’it of error was brought, and the following errors were assigned :</p> <p>1. That said county court did reject the evidence offered by said Pingry, to prove that the said Zebrah Wright was not, by reason of bodily infirmity, rendered incapable of traveling and appearing at court, of which the said company had notice, and that said court did admit said deposition.</p> <p>2. That said court admitted the said Zebrah Wright to be sworn, and give evidence in said cause, after the said company had read her deposition, in evidence.</p> <p>3. That said court rejected the evidence offered by the said Pingry, touching the act of 1822.</p> <p>4. That said court, in their charge to the jury, mistook and misstated the law- in the premises.</p> <p>And now, after argument, at this term, the opinion of the Court was pronounced by</p>

ASSUMPSIT. — The plaintiffs, in their first count, declared upon the instrument set forth below, as upon a promissory note.

THIS was an appeal from a decree of the probate court fpr the district of Fairhaven, accepting.the report of Tilly Gilbert, Isaac Cutler and Samuel Moulton, a committee appointed bv said court, to set off the dower of the said Rebeccah, in the estate of the said Alexander, of whom she was late the widow.

IN CHANCERY. ELIJAH DEWEY, the testator, on the 25th June, A. D. 1816, having devised to his grandson Elijah Dewey Hubbel, and to Dan-, iel Me Eowen,the husband of the testator’s grand-daughter… Held: her legacy was not vested, and could not be raised, although an annual maintenance was given them, until 21 years of age.

THIS was a motion for a new trial, founded upon the following CASE STATED. This was an action of debt, on judgment; plea, the statute of limitations; replication, that the defendant was out of the state; rejoinder, that the defendant came and returned within the state, &c. surrejoinder, traversing the last plea of the defendant.

<p>Parol proof cannot be admitted to contradict the record of a town clerk.</p> <p>A town clerk may correct an error which he has made in his record, so that it be according to the truth.</p> <p>An act of the court, which is not judicial, although requested by a party on trial, is not the subject of error.</p>

IN ERROR. The defendant below was attached to answer to the said Henry Soper, in a plea of the case, for this, to wit, that whereas at said Bristol, on the 8th day of July, 1820, the defendant was indebted to the plaintiff, and one Enos Soper and Uriah F. Arnold, in the sum of $81,14, as the balance due them as the consideration of the purchase before that time made by the said Philip of the said plaintiff, Enos and Uriah, of a certain piece or parcel of land in said…

THIS was a motion by the appellees, for anew trial, predicated upon the exception taken on the trial, which appears in the following case, as allowed by the Court. Held: that where a particular form of notice was prescribed by statute, it must appear to have been precisely pursued, and that a defective notice was not cured by the appearance of the party. The same principle was adopted in Commonwealth vs. Sheldon, 3 Mass. Rep. 188.

THIS cause came up on a motion for a new trial, predicated upon the exception appearing in the following. CASE STATED. This was an appeal from an order of removal. Plea, that the pauper was unduly removed, and issue joined.

IN ERROR. THE action below was an action of debt, upon a recognizance entered into by the defendants in the sum of $100, in due form of… Held: that it was no defence to an action on a note against the the surety, that he had requested the payee of the note to commence an action against the principal while he was solvent. He said that all the cases of relief of surety have gone ^1e ground, that time was given to the principal by contract, without the consent of the surety.

<p>IN ERROR.</p> <p>ERROR, to reverse a judgment of Washington county court, rendered at their September term, 1825.</p> <p>The plaintiff in the Court below, declared against the defendant, on two promissory notes, made payable to him or order, averring in his declaration, that the notes were lost. There was also a count for money had and received.</p> <p>Plea, 1. The general issue. 2. Non assumpsit infra sex annos; to which last plea, the plaintiff replied, that the cause of action did accrue within six years, &c. and issue joined to the country.</p> <p>On the trial, the counsel for the plaintiff offered the plaintiff’s affidavit, in evidence to the Court, to prove the loss of the notes declared upon, and also the testimony of one A. Loomis, to prove the existence and execution thereof, for the purpose of laying a foundation for the introduction of secondary proof of their contents. The affidavit and testimony were rejected by the Court, and a verdict passed for the defendant.'</p> <p>The errors assigned in this writ, were</p> <p>1. The refusal of the county court to admit the affidavit of the plaintiff, to prove the loss of the notes declared upon.</p> <p>2. The rejection of the testimony of A. Loomis.</p> <p>3. The common error.</p> <p>Here the counsel inquired, if the Court would hear an arguHient upon the first question presented by the record, since the decision at Burlington ?*</p> <p>By the Court. Though that was a case of a lost bond, the Court were not unanimous in the opinion there given, and will not now refuse to hear.</p> <p>insisted, 1. That the first error was well assigned. Evidence of the loss of a written instrument, so as to lay a foundation for the introduction of inferior proof of its execution and contents, is adduced solely to the judge, who is to determine exclusively, without the intervention of a jury, whether it is sufficient to authorize the admission of secondary evidence, and in this and in similar cases, the rules in relation to testimony to a jury, do not apply; but the judge may admit the evidence of an interested witness, oí even of the party to the cause, to prove the loss of the note or deed. — 16 Johns. R. 193 — Peake's Ev. 40, 98, 154 n. — Phil. Ev. 356, n. b.</p> <p>In Forbes vs. Wale, (1 BLR. 532 — 1 Wms. Abr. 162) the issue was nonest factum, in a suit on a bond. It became necessary to prove,-that the subscribing witnesses were dead, and the plaintiff himself was examined as a witness to that point, and as preparatory to the proof of the hand-writing.</p> <p>In Brown et al. vs. Messita, (Maulé and Selwyn, 281) the bill of exchange was stolen from the pocket of the attorney, and he could not find it; the Court upon the production of the copy verified by the oath of the plaintiff’s attorney, referred it to the master, to see what was due for the principal and interest.</p> <p>In JDouglassvs. Saunderson, (2 Balls. 116) the Court held, that the plaintiff was a good witness to prove the death of the subscribing witness, in order to let in evidence of the hand-writing.</p> <p>In Chamberlain vs. Gorham, (20 Johns. R. 144) the Court held, that a party in interest may be a witness to prove to the Court the loss of the note or instrument, upon which the suit is brought, in order to introduce parol proof to the jury, of the contents of such note or instrument.</p> <p>In Kensington vs. Inglish, 8 East, 273 — 3 D. & E., 151 — Esp. R. 337 — N. York Cases, in error, 27 — -3 Term. R. 151 the same doctrine is established.</p> <p>2. The affidavit clearly makes out the loss of the notes. All the law requires, is, that the loss be made out with reasonable ■ certainty.</p> <p>In Kensington vs. Inglish, before cited, the witness recollected that an application had been made to him, for the paper, and that he made search for it among his papers, but he did not recollect whether upon such search he found it, though he did not think that he found it. The Court held, that this evidence satisfied the law, in respect of search, and established with reasonable certainty, the fact of the loss.</p> <p>In Jackson vs. Frier, (16 Johns. R. 193) the Court said, that diligent search and inquirjr was sufficient to answer the law.</p> <p>Jn Jackson vs. Naley (10 Johns. R. 374) the same principle is recognized.</p> <p>In Jones vs. Fales, (5 Mass. R. 101) the court held, that the testimony of a person to whose care a paper has been entrusted, that he had made search and, could not find it, is evidence of its loss.</p> <p>3. We insist that the county court erred, in excluding the testimony of A. Loomis. '</p> <p>In Jones vs. Fales, before cited, the court held, that parol evidence was admissible, to prove the contents of promissory notes which were lost. — Taunton Sf South Boston Turnpike Company vs. Whitney, supports the same doctrine.---See also, 16 Johns. 193 — 8 East, 273- — Peake’s Ev. 154 — 10 Mass. 327 — 11 Mass. 2S2.</p> <p>4. If the plaintiff cannot recover in this action, he is remediless. Chancery will give no relief upon a lost note. If a bond be lost, relief will be given in equity; but not upon a lost note, and the reason is, that at lawr, the party could not recover without a proferí, and giving over of the bond. — 1 Mad. Ch. 22 — 3 Ves. '238 — 16 Ves. 432 — -2 Ves. 41 — 5 Ves. 238 — v 1 Ves. 393, 341.</p> <p>The Court declined hearing the counsel on the other side, and</p>

<p>EJECTMENT, for a mill-lot and privileges, in Moretown.</p> <p>Plea, not guilty, and verdict for the plaintiff.</p> <p>At this term, the cause came on, to be argued upon a motion for a new trial, on the ground of surprise; and also upon a motion fur a new trial founded upon the exception taken.on the trial, which appears in the following case, as allowed by the judge.</p> <p>On the trial of the issue, joined between the parties in this cause, the plaintiff, to maintain the issue on his part, gave in evidence,</p> <p>1. A deed of mortgage of the undivided moiety of the premises, mentioned in the plaintiff’s declaration, from David Bancroft, jun. to the plaintiff, dated January 16,1810, and acknowledged and recorded the same day.</p> <p>2. A lease from the plaintiff to Cephas Carpenter, dated August 21,,1813, of the premises sued for.</p> <p>3. A deed of quit-claim of the premises, from Stephen Pierce to Jacob Jones and Thomas Reed, dated August 29,1818, and</p> <p>4. A deed of quit-claim of one third of the premises, from the said Jacob Jones to tke defendant, dated August 26, 1819, which deed, and the several other deeds aforesaid, are made a part of this case.</p> <p>The plaintiff also proved, by the testimony of Stephen Pierce, that the premises sued for had been sold for the payment of one of the direct taxes, under an act of Congress of the United States, and that the same were purchased by Cornelius P. Van Ness, who had made an agreement with the said Cephas Carpenter, to quit-claim to him the title he should derive from said sale, in case he should obtain a deed from the collector; that the said Cornelius P. Van Ness did obtain a deed from the collector, and by the order of the said Cephas, executed to him the said Stephen the quit-claim deed aforesaid, the said Stephen having become surety for the said Cephas, to James H. Lang-don, for the sum of two hundred and thirty dollars; that some time after the said Stephen had taken his deed from the said Cornelius P. the said Jacob Jones called upon the said Stephen and said he understood that the title to the premises was in him the said Stephen; to which the said Stephen replied, that he had a vendue title only, and that his tide as it respected Jonathan Arms’s moiety of the premises was bad, and that he the said Pierce told the said Jones, that he bad taken the said deed from the said Van Ness, to hold for the benefit of said Carpenter, and for his own security for the said claim against him, as surety as aforesaid, and also for a further sum of about $100, due him from said Carpenter; that if the .said Jones wished to purchase, he must agree with said Carpenter; but that he, Pierce, would not execute a conveyance until he was indemnified for his said liability, and secured for the demand aforesaid ; that Jones did make a bargain for said premises with said Carpenter, and paid and secured to him the said Pierce, his lien upon said premises, upon which, the said Stephen executed to the said Jacob Jones and Thomas Reed the deed of quit-claim aforesaid ; that about ten months before the purchase and conveyance last mentioned, the mills on the premises were burnt down, and that until burnt down, one moiety of said premises was occupied by a tenant under the said Jonathan Arms, and the other moiety by ^ie sa^ Cephas, under the plaintiff; and that said Carpenter' was in possession of said premises when Pierce conveyed said premises to Jones and Reed as aforesaid, and that said Jones received the possession on that occasion from said Carpenter.. It appeared also, that the defendant went into possession on receiving his said deed from said Jones, under said last mentioned deed. And that though legally demanded, he did, before the commencement of this suit, and still does refuse, to admit the plaintiff into possession.</p> <p>It was admitted by the counsel for the plaintiff, that the defendant held a valid title to one undivided moiety of the premises mentioned in the plaintiff’s declaration, derived from the said Jonathan Arms’; and the defendant offered evidence to show that the title to the other moiety of said premises was in one Brigham Howe, under whom the defendant now claims to hold, and not in the plaintiff, which evidence so offered, the Court refused to admit. To which opinion of the Court, in rejecting said evidence, the defendant excepts.</p>

<p>THIS was an indictment for forgery, under the statute, consisting of five counts. The first count was in the words following.</p> <p>St„Lp.g56 cii.ái, §to ’</p> <p>The grand jurors, &c. present, that James McLeran, of, &c. on, 8lc. with force and arms, at, &c. did wittingly, falsely, and deceitfully, forge and alter, and did procure to be forged and altered, a certain promissory note, of the tenor following, that is to say—</p> <p>“Barnet, August 21, 1821.</p> <p>“For value received, we jointly and severally promise to pay James Melaran, or his order, sixty dollars, to be paid in beef cattle, the 1st Oct. 1822, or grain, the 1st January, 1823, with interest.</p> <p>EPHRAIM CHICK,</p> <p>ROBERT MORRISON.</p> <p>Attest, Harvy S. Robinson.”</p> <p>On tlie back of which .promissory note, was then and there endorsed twenty dollars, in part payment thereof. And the said James McLeran, said endorsement then and there being on the hack of said note, and the balance of said note being then and there due, and no more, with force and arms, wittingly, falsely and deceitfully, did alter said note, by then and there wittingly, falsely and deceitfully separating said endorsement from said note, with intent to defraud and deceive the said Ephraim Chick and R. Morrison, to the great damage of the said Chick and Morrison, to the evil example of others in like cases offending. contrary to the form, force and effect of the statute, in such case made and provided, and against the peace and dignity of the slate.</p> <p>The second count charged the forgery, as consisting in the alteration of the endorsement, by severing it from the note. •</p> <p>The third count, after setting forth the note and endorsement, treated them as constituting an obligation in writing, for $40, and charged the forgery to consist in altering the said obligation by severing the endorsement from the note.</p> <p>The fourth count treated the note at an obligation in writing, with an endorsement upon it, and charged the forgery to consist in an alteration thereof, by severing the endorsement from it.</p> <p>The fifth count charged the respondent with having Mitered and published, as true, the said altered obligation.</p> <p>To this indictment there was a general demurrer.</p> <p>The offence charged, is not within the statute.</p> <p>It is necessary so to frame án indictment, as to bring the of-fence clearly within the statute. — 1 Mass. Rep. 517, Commonwealth vs. W. McMonagle.</p> <p>No intendment or conclusion will make good an indictment, which does not bring the fact prohibited or commanded, in the doing or not doing of which the offence consists, within all the material words of the statute. — 2 Mass Rep. 131, Commonwealth. vs. J. Morse.</p> <p>The offence is, to “forge, or alter.”</p> <p>To “forge” is to form new, that which before had no existence ; hence the necessity of introducing the word “alter” into our statute. An altered note is not a forged note, the note having had an existence before the alteration.</p> <p>The question then is, did the defendant alter the note; it is denied that he did, for the endorsement of part payment on the back of the note, is no part of the note. — 2 Mass Rep, 397, Slate vs. Ward.</p> <p>A note is an entire thing, a promise in writing, made by the signer to the payee for a certain sum of money at a time stipulated, and if payable in produce, is not a note within the letter of the law.</p> <p>It is the evidence of the payee or his assigns, and to operate on the maker.</p> <p>An entry of part payment on the back is no part of the note, but collateral thereto, and is the evidence of the signer, and to operate upon the payee or his endorsees.</p> <p>It does not alter the case, calling it an obligation in writing, as in the third and fourth counts, for the same reasons as in case of a note; and for a further reason, that the instrument is not an obligation. — Shep. Touchstone, 367-8.</p> <p>It is not “forging or altering” an endorsement on the note, for an “endorsement” of a note is to transfer it to another. To endorse is to transfer a general or limited interest in the thing enr dorsed. It is a mercantile phrase, expressive of a transfer, and so treated in the statute, Ch. 31, Sec. 19.</p> <p>Further, it would be a subversion of language to call it an alteration. It is understood, when a thing is altered, that it assumes a shape or character different from that which it was altered from. But what form or character can a thing assume, which is itself destroyed?</p> <p>It has been said, that the note set forth, with the endorsements, or in other words, the offence charged, fell within that clause of the statute, “forging or altering the evidence or assurance of money or other thing whatever.” It is a sufficient answer, that there is no count in the indictment, charging the “forging or altering the evidence or assurance of money.” And “the other thing” yet remains to be brought forth by our legislature, and christened, before it can be recognized by courts as legitimate.</p> <p>In all offences created by statute, the indictment ought to charge the offence in the words of the statute. — Commonwealth vs. McMonagle, 1 Mass. Rep. 517.</p> <p>Therefore, the other limb of the statute — “any acquittance or receipt for money, goods, or other things,” cannot aid the indictment.</p> <p>He acknowledged that he found difficulty in charging this offence, and bringing it within the statute. He contended, however — 1. That the note and endorsement constituted but one instrument, previous to the act of the respondent, to wit, an obligation for the balance. 2. That the expression “on them,” in the statute, has reference to the evidence of part payment. If an assignment had been-intended, the expression of them would have been used. 3. That the fifth count is good, in that it charges the uttering and publishing, as true, an altered obligation.</p>

THIS was an appeal from a decision of the commissioners of claims on the estate of the deceased, taken and allowed by the probate court, (after the time prescribed by law for granting appeals in such cases,) by virtue of a special act of the legislature, passed Nov. 6, 1823, entitled “an act granting to Daniel Staniford an appeal from the judgment of commissioners on the estate of John Barry, late of Colchester, deceased, to the Supreme Court.” On presenting his petition to…

<p>A general demurrer reaches the first defect in pleadings.</p> <p>By the provisions of the act restraining swine from going at large, (Stat. 454, ch. 55, No. 2) swine are not made liable to be impounded under all circumstances, when found at large on the highways or commons, but only sub modo, when suffered to run at large by the owner. And the word “suffer” as used in that statute, means to allow or permit.</p> <p>If swine are at large through the negligence of the owner, or his servants, or are permitted to continue at large, after notice of their escape from his enclosure, they are liable to be impounded; but if the owner exercise ordinary care and diligence in restraining them, and they are at large against his will, and without any fault in him, they are not subject to be impounded, (unless taken damage feasant.)</p> <p>Hence, it is necessary for a defendant in replevin, who avows the taking of swine, and would justify impounding them under this statute, to aver, in his avowry, that the swine were SUFFERED to run at largely the plaintiff. And an averment, that the swine were running at large on the highway, contraformam statuti, &c. is insufficient.^</p> <p>But quere, whether the avowantmust prove this averment, or whether the swine being at large would be prima facia sufficient to throw the onus upon the plaintiff, of proving, facts to exempt themfrom the liability to be impounded i</p>

<p>AUDITA QUERELA — in which the complainant set forth, that heretofore, the said Daniel and John Barry, late of Colchester, deceased, in the life time of said John, and at the time of his decease, had mutual and unsettled claims, existing between them, and after the decease of the said John, to wit, on the 8th day of September, 1819, the said Hannah, who before that time had been appointed administratrix upon the estate of the said John, represented the estate insolvent, and the judge of probate appointed Moses Catlin and Davis Stone commissioners, &c.— that on the 10th day of February, 1820, the said Daniel presented his claim against the said John Barry, before the said commissioners, for examination and allowance. And the said administratrix presented for examination and allowance the claims of the deceased against the said Daniel; and the said commissioners thereupon found, upon the adjustment of said mutual claims, a balance due upon the whole, of $7,35, in favour of said estate, against said Daniel. And afterwards, to wit, on the 23d day of May, 1820, the said commissioners made report, &,c. which was accepted. And on the 17th day of August, 1820, the said Hannah sued out a writ in her favour, as administratrix, against the said Daniel, made returnable to Chittenden county court, at their September term, 1820, setting forth,that before the 14th day of March, 1818, in the life time of the said John, the said Staniford recovered a judgment against the said John Barry, for $90,33, and had committed the said John to jail, by virtue of an execution issued upon said judgment, and the said Barry, while in prison, conveyed to said Staniford, one share in the Winooski Turnpike, being No. 56, in full satisfaction of said judgment. That a new trial had been granted to the said John, and that the said administratrix, by the consideration of the Supreme Court, at their December term, 1819, recovered a judgment for her costs; and such proceedings wrere had upon the writ aforesaid, that the said Hannah, administratrix, &c. by the consideration of the said county court, at their February Term, 1821, recovered judgment against said Daniel, for $94,10 damages, and $12,95 cost, as the value of said turnpike share; and the complainant avers, that the claim of said administratrix for said share, existed at the time that said commissioners found the said balance 'of $7,35, as aforesaid. And afterwards, the said administratrix ou^ an0^ier writ of attachment in her favour against said Daniel, founded on the judgment so rendered, &c. and such proceedings were had thereon, that the said Hannah, adminisjratriX) by the consideration of Chittenden county court, at their September term, 1823, recovered judgment against said Daniel, for $70,60 debt, and $10,08 costs. And after the rendition of said last judgment, the said administratrix took out execution, &c. and that said Daniel is in danger, &c. And the said complainant further shows, that by an act of the general assembly of the state of Vermont, passed Nov. 6,1823, entitled “an act granting to Daniel Stamford an appeal from the judgment of commissioners on the estate of John Barry, to the Supreme Court,” the said Daniel is authorized at any time previous to the first day of January, 1824, to enter an appeal from the decision of said commissioners, to the next term of the Supreme Court, &c. and the proceedings before the Supreme Court and the court of probate, are, by virtue of said act, to be the same in all things as though the said Daniel had entered his appeal within the time allowed by law. And the said Daniel has, by virtue of said act, entered his appeal in the probate court, &c. according to the directions of said act. — By all which the said Daniel is greatly injured, &c.</p> <p>Demurrer, and joinder in demurrer.</p> <p>The cause was submitted, on the briefs of counsel, without argument.</p>

THE defendants were attached to answer unto the plaintiff, in a plea of covenant broken, for that the said Amanda, heretofore, to wit, at Williston aforesaid, on the 29th day of May, A. D. 1818, while the said Amanda was a feme sole, by her deed of that date, signed by her hand, and sealed with her seal, witnessed, acknowledged, recorded, and every way executed in due form of law, and ready in Court to be produced, for and in consideration of the sum of $443, then and there…

<p>THE facts in this case will sufficiently appear, from the following opinion of the Court, pronounced by</p>

This was a writ of scire facias, brought to the county court, upon a recognizance of ten dollars, originally entered into by the defendant, before a justice of the peace, conditioned that one Samuel Eastman, who had brought an action against the plaintiff, before said justice, should prosecute the same to effect, and answer all damages, if judgment should be rendered against him.

THIS was an action of debt on jail bond, in common form ; but it appeared from the declaration, that the execution, by virtue of which the judgment debtors were committed to the custody of the plaintiff as keeper in chief of the jail, was issued more than a year and a day after the rendition of the judgment against them, and no reason was assigned in the declaration for the delay. General demurrer, to the declaration, and joinder in demurrer.

IN ERROR. THIS was a writ of error, brought to reverse a judgment of Franklin county court. Plea, in nullo est erratum. The case was submitted on the record and briefs of counsel, without argument. The error assigned will distinctly appear from the following opinion of the Court, which was pronounced by

IN ERROR. ERROR. — The judgment which the plaintiff complained of as erroneous, was rendered in an action of trover, brought against the defendant, for converting certain cloth, described in the declaration.

IN ERROR. THE action below was assumpsit. The declaration contained two counts — the first stated, in substance, that in December, 1809, the defendant was appointed administrator to the estate of one Nathan Colgrove, then deceased; that Eunice Fillmore, the wife of the defendant, was entitled, as one of the heirs of the said Nathan, fo a distributive share in his estate; that on the 18th of June, 1810, the defendant and his wife, for a valuable consideration, sold and…

THIS was a petition for partition. The petitioner set forth in his petition, that he was seized in fee simple, as tenant in common, of certain real estate, situate in Pownal, bounded, &c. being the sawmill, sawmill-yard, sawmill-pond and the utensils, belonging to said mill, known by the name of Brown’s mill, (setting forth his title to two undivided third parts thereof) and that one Amos Turner, late of said Pownal, now deceased, was seized in his life-time of the other…

ACTION on book-account — referred to auditors, February term, 1 825. The auditors reported a balance in favour of the plaintiff, of $8,90. Annexed to their report and forming a part thereof, were the respective accounts of the parties, with minutes in the margin, of the sums allowed and disallowed on the several items of charge. Among the items allowed in the plaintiff’s account, were the following:— 1818. To cash paid Nathan Whiting, for Re- jig.

AUDITA QUERELA. — Stanton Eddy and Edward Cochran having each obtained a judgment against the other before a justice of the peace, and appealed their respective actions to the county court, to be holden at Bennington, on the first Monday of December, 1820, previous to that day entered into a written agreement to take their actions out of court, and submit them to the arbitrament and award of Eli Pettibone, and Luther Stow-ell, with power to choose an umpire; the said…

AUDITA QUERELA. — The complainant set forth in bis writ, in substance, that he had a certain action pending in Orleans county court, against the said Cook, which, for aught that appeared by the records of said court, stood open for trial, and that be, believing that be had a right to a trial, appeared with his witnesses, and offered to support his said action; but the Court refused him a hearing, and entered up a judgment against him, for the defendant to recover his costs.

IN ERROR. ERROR from a judgment oí Orleans county court. The nature of the action below, the facts appearing on the trial there, and the errors in law relied upon here, for reversing the judgment, will sufficiently appear from the following opinion of the Court, which was delivered by

THIS was an action of trover, brought to recover the value of a certain quantity of hay.

IN ERROR. THE action below was assumpsit, on a warranty upon the sale of a mare, commenced before a justice of the peace. From the record, it appeared, that after several continuances, the defendant below pleaded non-assumpsit, and judgment was rendered for the plaintiffs, whereupon the defendant below appealed to the county court.

IN ERROR. THE action below was an action of trover for a horse, originally commenced before a justice of the peace. The writ was dated May 23, 1825, and served on the same day, and made returnable before the said justice on the 8th day of June, 1825.

<p>The plaintiff at law recovered a verdict against the defendants, upon atrial in which the defendants had neglected to plead in offset, or give in evidence, sundry receipts of the plaintiff, for monies paid towards the debt in suit, and the Court rendered judgment thereon, for the whole debt, under a rule, (entered into by the parties) llthat certain sums of money, specified in receipts signed by theplaintiff, should bede&uctcd from said damages.” The defendants neglected and refused to produce the receipts to the clerk, and the plaintiff thereupon took execution for the whole judgment, but collected only a part. The defendants afterwards lost their receipts, and the plaintiff brought an action of debt to recover the balance of said judgment. The defendants thereupon brought their bill in chancery, praying for a discovery, an account and relief, and the same was sustained.</p> <p>But no costs were decreed to the defendants, for that they were the first in fault, in not suffering their receipts to bo applied upon the judgment, under the rule.</p>

<p>— IN CHANCERY.</p> <p>CHARLES HOLDEN, in the year 1820, being about the age of seventy-two years, was a very weak minded man. Though in the earlier part of his life he had been an industrious, discreet person, and had acquired a real estate in Westminster, of the value of $2500,00, which he still possessed, yet, for the last twenty years or more, he had led a roving sort of life, absenting himself much from his family, and going to the city of New-Yorlc and other distant places, where he engaged in peddling and other small traffick, and gambled in lotteries, having imbibed an impression that he could, by means of dreams, divine the fortunate numbers. He left his business at home principally to the management of his wife and family, sometimes appearing to be fortunate in his speculations, and at other times the reverse. In October, 1813, such were his habits and practices, that the selectmen and civil authority of Westminster complained to two justices of the peace, that by absenting himself from his wife and family, and by gambling and idleness, he was so spending and lessening his estate, as thereby to expose himself and family to want, and the town of Westminster to their support. This, however, was said to have been done at the instigation of his family. But the justices to whom the complaint was exhibited, having heard the case, did adjudge that the said Charles Holden came within the description, true intent and meaning of the ninteenth section of the act, defining what shall he deemed and adjudged a legal settlement, fyc. and for the punishment of idle and disorderly persons, (Stat. 3G9, ch. 47, sec. 19) and they thereupon appointed one Charles Pierce guardian over his estate. Pierce accepted of this appointment, and made an appraisal of the estate, but he never took charge of the same nor interfered with the bargains of Holden and his family. And, in June, 1815, he moved from the state, and has never since returned, leaving Holden in the possession and management of his property, as he had been before. While things were in this situation, in May, 1820, Charles Holden, understanding that the defendant owned lands in Illinois, applied to him to purchase his real estate in Westminster, and to convey to him his lands in Illinois, and pay a balance in money, saying that he should want at least five hundred dollars in money. The said Charles, with some of the members of his family, and the defendant, met on the next day, and concluded a bargain, in pursuance of which, Holden conveyed to the defendant all his real estate in Westminster; and the defendant, as the consideration therefor, conveyed to said Holden eight quarter sections of land, promiscuously situated in the tract set apart for military bounties in Illinois, and also paid him $500,00 in money, it being the expressed intention of Holden at the time of the contract, to settle on the Illinois lands, with a view to bettering his property. These quarter sections of land were, on an average, sixty miles from settlements, and the average market price thereof at the time of the contract, did not exceed sixty dollars the quarter section. The defendant also gave Holden money to pay the taxes due on the lands up to the time of the contract. The defendant went into possession of a part of the estate in Westminster immediately after the contract; and at the time of the commencement of the present suit, had an action of ejectment pending against a part of the orators in this bill, (the said Charles Holden having deceased) to recover possession of the residue.</p> <p>The orators, being the heirs at law of said Charles, sought by their bill, to have the contract between him and the defendant rescinded, and that the defendant be decreed to convey to them. the said lands in Westminster, and account for the rents and profits thereof so long as he had possessed the same, or any part thereof, on such terms as should be just and equitable, and that he be perpetually enjoined against further prosecuting his said action of ejectment, and for other and further relief.</p> <p>The defendant, in his answer, admitted the contract, but denied the grounds of relief, and the cause was set down for argument on the bill, answer and traverse.a</p> <p>insisted that they were entitled to the relief prayed for, on the following grounds, which he contended were supported by the facts appearing in the case, viz:</p> <p>1* That Charles Holden, at the time of the contract, was not of sound mind, but incapable of contracting, and the contract is therefore void.</p> <p>And in support of this position, he cited Fonb. 63. — ib. 65, note. — I Blac. Com. 304. — 3 A tic. 168. — 6 Vezey, 65. — 12 do. 445__Statute 366, concluding, that the same state of mind which would authorize a commission, &c. will avoid the contract.</p> <p>2. If the case does not show a legal incapacity, it shows a case of weakness of understanding, from which fraud will almost be presumed, and that it is inferrable from the inequality of the parties, and inadequacy of consideration.</p> <p>Though old age alone is not sufficient ground to presume fraud, (1 Vez. 19, 117, 63) and though weakness of mind may not be sufficient to support a commission of lunacy, it furnishes a strong ground of suspicion, that persons in those states executing conveyances, are acted upon by improper influence. And where fraud or surprise can be imputed, or collected from the circumstances, equity will relieve. — 1 Fonb. 60, cited in Wright vs. Booth. — Tothill, 101, 102 — 2 Cha. Cases, 103 Finch, 161. — 2 P. Wms. 270. — 3 do. 130. — 2 Fern. 189__2 Aik. 324. — 2 Vez. 407. — 1 Fonb. 116. — 6 Bro. Ch. R. 9. — 2 do. 167. —10 Vez. 223, 52 — 12 do. 373 — 13 do. 103.</p> <p>3. That, in addition to the second point, the defendant took advantage of the weakness of mind of said Holden, and by artful and false representations, obtained the contract.</p> <p>4. That at the time of the contract, Holden was under guardianship, under the 19th section of the pauper act.</p> <p>The act declares all contracts of such ward' to be null and void. And the only mode by which the guardianship could be dissolved, is under the provision of the 14th section of the same act.</p> <p>insisted, that neither position taken by the orators, as sustained by the proofs, furnished a ground for rescinding the contract. Old age is no sufficient ground, (1 Vez. 19) and equity does not measure the capacities of men any more than law. Pow. on Con. 30, 31.</p> <p>On the subject of inadequacy of consideration, they cited 5 Vez. 845 9 ib. 246. — 10 ib. 219, 474. — 13 ¿6. 103. — 14 ib. 243__18 ib. 312.</p> <p>That the misrepresentations relied upon are not of a nature to avoid the contract — 18 Vez. 11 — 10 ib. 475.</p> <p>Law, they said, avoids in toto, and equity does the same where law would do it. In other cases, where equity interferes, it must be in the power of the Court to reinstate the parties; (2 Vez. 289, 408. — 1 ib. 206. — 8 ib. 283___14 ib. 91, 243) and non constat, that it is in the power of the orators to reconvey to the defendant the lands in Illinois.</p> <p>The appointment of a guardian by the justices, was no evidence of want of capacity. In that case the application must have been to the probate court. — 1 Stat. 403, Comp, of 1807.</p> <p>This guardianship, (if not originally void for irregularity,) was ünder the 19th section of the pauper act. Under that section, when the owner of the estate in ward returns, he is entitled to it. No application to the county court is necessary. The legal presumption is, that Pierce surrendered the estate on the return of Holden. If not, the removal of Pierce from the state in 1815, was a virtual resignation of the trust.</p> <p>After a full hearing upon the bill, answer and traverse, with all the exhibits of briefs, and testimony, the grounds of the decision and the decree of the Court, were concisely stated by</p>