Volume 1 — Brayton's Vermont Reports

<p>PLEA in Abatement, that plaintiff was not a freeholder, at the time of praying out the writ, arid was fhe only person recognized for costs.</p> <p>The former decisions of this Court, that a plaintiff might be recognized alone, were founded on the 45th section of the Judiciary Act, relating to attachments, and do not apply to this case, where plaintiff was not & freehold Aer; which comes under thé 44th section.</p>

THIS was an action, in common form, brought by John Collard against Arzah Crane, on note. Plea in abatement. That, at the time of the commencement of this action, Collard was an insane person; and that Elnathan Keyes was his guardian, duly appointed by the J udge of Probate.

<p>An Audita Querela, to set aside an execution.</p>

SCIRE FACIAS against bail on a writ of attachment. The; plaintiff declared, that on the 25th day of August 1815, he prayed out a writ of attachment, in his favour, against Luther Whitney, which was served, and Charles Adams the defendant became bail; that at the February Term of Chittenden County Court in 1816, he recovered judgement, in his favour, agains* the said Whitney, for the sum of $126,64 damages and $15,7\ costs); that on the 16th day ot March 1816, the said…

<p>Where a debtor was confined, in the limits on bonds, and the creditor executed antf delivered to him a writing, by which he agrees to certain conditions j “If the debtor chooses to leave the limits,” such án agreement may be revoked before the debtor leaves the limits, or any act is done injurious to him or his bail.</p> <p>The effect of such revocation, or of fraud in obtaining the licence or agreement, is the siime both as to the debtor and his bail, in case the situation of the bail lias been in no way changed by reason of the existence of such licence or agreement.</p>

<p>THIS was an action on note executed, &c. in the life time of the testator, to wit, on the 12th day of December, 1803, for $61, 18. Plea in bar, that on the 3d day of March, 1807, plaintiffs, as executors, represented the estate of said Doolittle insolvent, that commissioners were appointed, that defendant presented a claim against said estate, for allowance, and the executors presented to said commissioners, for allowance and adjustment, the note aforesaid; and the commissioners adjusted these mutual claims, and reported a balance of $38,11, as due to the estate, which report was duly accepted, and remains of record. Demurrer.</p> <p>That the duly of commissioners is to adjust the demands against the estate only, that the statute of 1798,1 vol. p. 164, sec. 3, extends to claims in fa-tor of the estate, necessarily involved in the discharge of that duty, but no further than these claims are merged in the claims against the estate ; when there appears abalance in favor of the estate, the commissioners have no concern with it, there is an ample remedy in the ordinary courts of justice : The Judge of Probate could make no order upon the balance found due the estate, and the administrator must be left to the usual remedy in the courts of general jurisdiction, as if no proceedings were had before the commissioners, and this remedy is amply sufficient.</p> <p>That no appeal is allowed, where the balance is in favor of the estate : That the only remedy of the executor must be on the original security 5 for the commissioners being concerned >crfy with claims against the estate, they have discharged their duty w lieu they have disposed of such claims; they arc a court oí special jurisdiction, and their authority is not to be extended by implication ; and there is no mode pointed out in. which to enforce their report in favor of an estate.</p> <p>That in case of an insolvent estate and mír-ica! claims exhibited to commissioners, the judgment of the commissioners is conclusive on both parties, and merges all the original claims ; that the only remedy is on .the judgment of the commissioners..</p>

<p>Declaration. In a plea of the case, for this, to wit, Thai whereas, at the time of making the agreement and promises herein after mentioned, one Oliver Evans, .of Philadelphia, in the State of Pennsylvania, had commenced a suit at the Circuit Court (of the United States) against the plaintiff for using an elevating strap to raise meal when ground, from the mill stones into the bolt, for which the said Oliver claims an exclusive right, by virtue of an act of Congress, passed for his relief. And the defendant and several other persons, to wit, Moses Leonard, John Warren and Charles Rich, as mill owners and users of said elevators, in their mills, were interested, that the: legality of the claims of said Oliver Evans, in that respect, should be ascertained and decided, they and the plaintiff supposing, that there was no exclusive right in said Oliver Evans or any other person to use the said elevating straps for the purposes aforesaid ; and thereupon, afterwards, to wit, at Middlebury aforesaid, on the 17th day of August, 1811, and when the said suit •was depending, it was agreed by and between the defendant and the said Moses Leonard, John Warren and Charles Rich, in consideration of the premises, that, in case Judgment should be gendered against the plaintiff, and that he the plaintiff would prosecute to, and defend the same in the Supreme Court of the United States, or in case Judgment should be rendered against the said Oliver, and he should carry the same to the Supreme Court of the U. States for a final decision, and that he, the plaintiff should defend the same in said Supreme Court of the United States, that in that case, he, the said defendant, and the said Moses Leonard, John Warrep and Charles Rich, each of them, should and would individually, pay or cause to be paid, to the plaintiff, an equal share of all the expences arising in the de-fence of said suit, in proportion to the number of elevating straps by each of them then U3ed, in their respective mills. And the plaintiff avers that the defendant then used, to wit, on the day and year last aforesaid, four elevating straps. And the said agreement being so made as aforesaid, he, the defendant, after-wards, to wit, on the day and year last aforesaid, in consideration that the plaintiff, at the special instance and request of the defendant, had undertaken and faithfully promised the defendant, ihat he, the plaintiff would perform and fulfil said agreement, on his part, undertook, and then and there faithfully promised the plaintiff, that he, the defendant, would perform the said agreement on his part: And the said plaintiff in fact saith, that relying on said agreement, promise and undertaking of defendant, he did after the making thereof, go on with the defence of said suit, and did duly, regularly, and to the best of his knowledge and ability, defend the said suit, until the term of the Circuit Court, in October, 1812, at which term the same was finally ended and determined, in favor of the said Oliver Evans, who, at the same term, recovered Judgment against the plaintiff, in said action, for the sum of $79,30, damages and costs, which the plaintiff has been compelled to pay, and has actually paid : And the plaintiff avers, that the said Judgment was a final Judgment, and could not be re-examined, varied or affirmed in the Supreme Court of the United States, so that plaintiff could not carry the same to the said Supreme Court, for a final decision, and there defend the same. And the plaintiff in fact saith, that in consequence of his defending said suit, he has been obliged to pay,andhas paid $200 over and above the sum so recovered against him, as aforesaid, and the share and proportion of defendant, of the said money, so charged and paid by plaintiff as aforesaid, in proportion to the four straps so by him used as aforesaid, in his said mill, amounts to a large sum of money, to wit, eighty dollars, of which defendant on, &c. had notice, and thereby became liable tc pay, &c.</p> <p>Demurrer and Joinder.</p> <p>It was contended, That the prosecution of the suit, Evans against the plaintiff, and defence of the same in the Supreme Court of the United States, was a condition precedent, and the right of action could not exist until the performance of that condition. 1 Chilty 311. 6 Tem. Rep. 710, 719.</p> <p>That the plaintiff is entitled to recover, because it appears he has done all which he was bound to do, by virtue of the agreement declared on. The Judgment rendered by the Circuit Court, could not be carried,to the Supreme Court of the United States. Grayden’s Digest, 215.</p> <p>It will be found, that the act of Congress referred to,,in the agreement, authorized the Secretary of. State, to issue a patent to Oliver Evans, for certain inventions claimed by him. The action against the plaintiff was brought, for infringing that patent: It was the trial of that action in the Circuit Court which was equally interesting to the plaintiff and defendant, and the other signers of the agreement, and the Judgment to be rendered in that Court which alone could be beneficial to the persons making the agreement: For, it will be observed, on referring to the laws of the United States, 1 Graydon, 333, sec. G, that, if upon the trial of an action, brought by the patentee, for the infringement of his patent, in the Circuit Court, Judgment shall be renderedfor the defendant, in the case therein specified, the Court shall declare the patent void.. It was the trial and judgmentin the Circuit Court which the persons making the agreement contemplated, and which alone was beneficial to them ; and the cause was to be carried to the Supreme Court, only, in case some question of law should arise, which might render it necessary that a decision should be had, by that tribunal, but the beneficial trial and judgment must in the end, be had and rendered in the Circuit Court» The cause of Evans against the plaintiff, having been defended so far as was practicable, and the law not permitting, the plaintiff to carry it any farther, although the decision in the end, proved unfortunate for both plaintiff and defendant, it is apprehended, the defendant ought to contribute his share of the expences, when he would have reaped the full benefit, had the suit terminated otherwise, by the patent being declared void.</p>

<p>COSTS.</p> <p>ACT of 1807, allowing $ 2 term fee relates back to terms in which a suit, then iá Court, was pending before the act was passed.</p>

THIS was an action of Ejectment, for a tract of land in Brid-port, as part of lot 28 in the third division, drawn to the original right of Nathan Green. On the trial at July term 1819, it was admitted, that the plaintiff was legally seized of lot No. 28, and that the defendant was likewise seized of lot No. 29, an adjoin* ing lot, and that defendant was in possession of the premises in question.

THIS was an action of Ejectment, brought to recover possession of lot No. 16, containing 140 acres, in the town of Fairfield, tried at October adjourned term, 1819. Several questions were raised on the trial, but the question, decided at the law term, was as follows : The plantiff had shewn title, to a proprietary right, in the town of Fairfield, but there had been no legal division severing the lot in question to his right.

<p>PROPRIETORS, at a meeting under the statute, cannot divide the lands ef a town, unequally in ^quantity : Acquiescence for any length of time will not cure this irregularity.</p>

THIS was an action on a promissory note for $125, payable in cattle, to J. P. Wetmore or order. Previous to the time - of payment, Wetmore endorsed the note to Farrar and Coot idge, to whom he was indebted, and authorised them to make use of his name to demand and collect the money, of which the defendant was duly notified : After the note became due, defendant took a release from Wetmore on account of the note,, and contends he is thereby discharged.

<p>THIS was an action of Assumpsit for money had arid received. Plea non assumpsit, and trial at June term, 1819 :</p> <p>The plaintiff’s specification was a moiety of the proceeds of a certain seizui'e of goods, made at Newbury, in the State of Vermont, while the plaintiff was Collector of the Customs for the Disfrict of Vermont, to wit, on the 20th day of August 1812, which goods were libelled at a special term of the District Court of the United States, for the Vermont District, in April, 1813, and were condemned, at the special term of said Court, in June 1813, and of which Abijah Stone was claimant, and which were appraised and delivered on bonds at the sum of $2818,33: There were two other items in the specification which were waved by consent of parties; On the trial of the cause.; befare tlie Court and Jury, it was proved that the plaintiff vtfas" Collector for the District of Vermont, from the first day of April, 1811, until the 15th day of February, 3815; that tho goods in question were imported from Canada, into the District of Vermont, in August, 3 812 ; that they were pursued by inspectors of the customs appointed by the plaintiff, to New? bury in the State of Vermont, and there, by them; seized on the 20th day of August, A. D. 1812 ; that they were by said Inspectors reported to the plaintiff, and by the plaintiff delivered to the Marshal of the Vermont District, for safe keeping, on the 16th day of October, 1812; that on the 3d day of April, 1813, the plaintiff delivered to the United States’ Attorney; for the Vermont District, a written report of the said seizure, with a request, that the same should be prosecuted to condemnation, which report was dated the 12th day of February, 1815; that the said Attorney considered there could be no condemnation 'of the goods, if a claim were interposed, unless they were prosecuted by the Collector within whose district the seizure waá in fact made, and that he found by conve'rsingwith the Collectors of the Districts of Vermont and Memphramagog, that they-were agreed in the construction of the law, relative to the boundaries of the District of Memphramagog; to Wit, that it contained all that part of the State of Vermont east of the meridian of Lake Memphramagog,' which would include the place of seizure ; and that the said goods were, therefore, at a special term of the District Court of the United States, holden at Rutland, within and for the Vermont District, On the 5th of April, 1813, libelled by the said Attorney, as seized by the Collector of’the District of Memphramagog, within said District; that they were claimed by one Abijah Stone, and that they were duly condemned on that libel, at a special term of said Court, in June, 1813, as forfeited to the United States : It was further proved that the goods had, by order of Court, been delivered to the said Abijah Stone, on bonds, atan appraisal of $2818,33; which amount was paid, by said claimant, to the Clerk of said Court, and bv him paid, in Jape, 1813, to the defendant Collector of the District of Memphramagog, for distribution, and that a moiety of said sum had.been demanded by plaintiff of defendant, previous to the commencement of the suit; it appeared that the sum, exclusive of what belonged to the United States, and to the informers, and which had been paid by defendant, amounted, with interest from the time of said demand, to the sum of $341,97.</p> <p>On this statement of facts the Judge charged the Jury to find a verdict for the plaintiff, and the Jury returned a verdict, accordingly. Motion for new trial, founded on exceptions to the opinion and charge of the Judge.</p>

<p>THIS case was an appeal from the decree of the Judge of Probate, rendered May 8, 1815 : The exceptions to the decree were as follows : “That whereas the said Court of Probate, on the day and year last aforesaid, did, among other things, consider, adjudge and decree, that Moses Robinson, son of the said Moses Robinson, deceased, was entitled to one sixth part of the estate of said Moses Robinson, deceased, of which he died possessed; when in truth arid fact, the said Moses Robinson, the younger, did, on the 7th day of July, A. D. 1780, by writing, under his hand, made, executed, and delivered by him, the said Moses, the younger, to him, the said Moses, deceased, then in full life, the date whereof is the same day and year last aforesaid, in and by which said writing, lire said Moses, the younger, for and in consideration of the sum oí five hundred pounds lawful money, promised and agreed to and with his said father, that the said five hundred pounds should be in full of all his father’s estate, which he, the said father, should die possessed of, and that the same, whatever it might be, should be for the sole benefit of the other cftildrcn of his said father.’’ The appellant also excepts to the allowance of $2430,55, as an advancement to Nathan Robinson, father of said John S. Robinson, in which was included an item for Colledge education, charged by the deceased, but not carried out at any price by him, but estimated by the Judge of Probate, at $800.</p> <p>Copy of the writing set forth in the exceptions :</p> <p>“July 7, 178G. Received of my honoured father, five hundred pounds, in a farm together with one yoke of oxen and a mare, which is to be in full of my father’s estate ; provided that I am not called to be at any trouble about selling said estate.</p> <p>“MOSES ROBINSON, Jun.”</p> <p>In support of the exceptions, Robinson, for appellant, con-fended, '</p> <p>R That maintenance, money, &c. at the University, or for education, shall not be deemed a part of a child’s advancement. 2 Bac. 254. 3 Bac. 76. Toller 379. 2 P. Wm. 449. Levin p. 3, s. 18.</p> <p>2. The receipt executed by Moses Robinson to his father, in his life time, is a complete bar to any other or farther claim, both in law and equity. 3 Mass. Rep. 143. Quarles y. Quarles, 4 Mass. Rep. 680.</p> <p>It further appears from the general nature of contracts.</p> <p>A contract for a valuable consideration, for marriage, &e. or for other reciprocal contract, can never be impeached, at law, and, if the consideration be of shificient a^quate value, can never be set aside in equity. Com. on Cfln. 8, note 2. Bla. Com. 444. •</p> <p>If the contract be fair, in its creation, it shall not be affected by a subsequent event, which has thrown the advantage greatly or w'holly on one side. 1 Bac. 109.</p> <p>Solemn conveyances, releases, and agreements, are not slightly to be set aside ; equity will not, therefore, avoid a reasonable and fair agreement, though founded on mistake, or the party were intoxicated, in person, or some paternal authority were exercised, and some benefit to accrue- to the father, under it. 1 Bac, 111, note.</p> <p>A contract or agreement must be unlawful, at the time of making, otherwise, it cannot be set aside, for it is said, the law knows of no contract, but what is good, or bad, at the time of making, it cannot be one or the other, according to a subsequent contingency. 1 Com. on Con. 31.</p> <p>If George Robinson had died worth nothing, or worth less than he was, at the.time of the execution of the release, and the other heirs claimed, that Moses should bring what he had received, into hotchpot, as being more than his share ; would it .not then be contended that the contract between Moses and his father, was valid 1</p> <p>It is certain the property was not given to Moses as an advancement, unless it was an advancement given and accepted expressly as such in full.</p> <p>The .custom of the city of London, is the remains of the common law, and was originally the common law over the whole realm, so that the decisions, under that custom, are the decisions as at common law. 2 Bac. 250. 2 Bl. Com. 490, 516.</p> <p>Where a child, though an only child, has been advanced, and the amount of advancement docs not appear, he shall be deemed fully advanced. 1 At,k. 407.</p> <p>It may be asked, what becomes of the remainder ? The child takes it as next of kin to the deceased, but if there had been any other in equal degree, he had been barred :</p> <p>If there M: a devise of a term for years to A. for life, remainder to B, B may release his right to A, and such release shall extinguish his right, though it was objected that B had only a possibility, at the time of the release made. Lampet case 10. Co. 47, 5 Bac. 705.</p> <p>But B could not assign his right to a stranger, it being a mere possibility. Lampet’s case, 1 Bac. 249. 5 Bac. 705.</p> <p>In every case where he to whom the release is made, hath the freehold in deed or in law, at the time of the release, then the release is good. 2 Co. Inst. Sec. 447.</p> <p>By the Statute, directing the descent and distribution of intestate estates, all the children are entitled, excepting such as are excluded by the 27th Section, by reason of advancement.</p> <p>The 35th Section directs what shall be received as evidence of such advancementit is not contended, but that the receipt, given by M. Robinson, Jun. to M. Robinson. Sen. is such memorandum as the Statute contemplates, and is to be considered as advancement: — -If the father is disposed to cut off a child from the inheritance, he can do it, only by deed or will.</p> <p>In England,- the father dying intestate, a child advanced, can claim nothing farther, under the Statute of Charles, unless he brings such advancement into hotchpot. 2 Bac. Tit. Exrs. and Adm. 3 Bac. 72, 76.</p> <p>It has been shid, that as Moses Robinson, the younger, would not be liable to refund to the other heirs, in case the father’s property had diminished, he ought to claim no more, ■although it has increased ; this surely can have no weight, as ' every case of advancement, contemplated by the Statute, is liable to the same objection.</p> <p>The instrument which, the appellant contends, ought to exclude Moses Robinson from a share, if it is not considered, as a memorandum, operating by way of advancement, must be considered either,</p> <p>1. A release, or</p> <p>2. A contract, made with the intestate, not to claim that portion of the estate, to which the Son is entitled, under the Statute, and for a breach of which, he is liable to the executor or administrator in action — or .</p> <p>3. A contract which a Court of Chancery would enforce against him.</p> <p>It is believed, it is that rvhich is unknown tó, and not recognized, by the law, unless it be considered as above explained—</p> <p>1. The instrument is not good as a release, not having the legal requisites to constitute a good release of goods or chattels, and more especially of an estate in lands : It must be, by deed, and no case is- to be found where a Seal is dispensed with. 4 Bac. 265. 5 Bac. 682. Shep. T.'323. 1 vol. Vt. Stat. 188-9.</p> <p>2. There was no such interest, in Moses Robinson, Jun. as could be released by him. A release is where a man quits, or renounces, that which he before had. 6 Com.- D. 183. Shep» T. 320-3.</p> <p>A release does not extend to a future right, as by an heir, fhe father living. 6 Com. D. 187. 4 Bac. 283. 5 Bac. 704. Co. Lit. 265. 10 Co. 51. Shep. T. 321.</p> <p>A mere possibility cannot be released ; a release supposes '& right of some sort in being. 4 Bac. 284. 5 Bac. 704-5. 8 Jac. L. D. 433.</p> <p>A Son cannot bargain and sell or release the inheritance. Bac. 275. Co. Lit. 265. 4 Bac. 283.</p> <p>It is said at law, if he releases with warranty, he is barred by rebutter, Co. Lit. 265, but chancery will relieve in all such cases. 2 Powell on contracts 184-5-6.</p> <p>It is confidently believed that no case can be found in which an heir can convey his expectancy; the very nature of the case forbids it; there is no right, no interest in the child. The Statute that gives two shares to a Son, if die father dies tó-day, may, to-morrow, be repealed or altered, and he have but one, or none, or the whole.</p> <p>It has been contended, in this case, that the custom of London- would give effect to the receipt so as to deprive Moses Robinson of his share.</p> <p>It is not believed, that the Court will consider, that the custom of London, or any other local custom, will govern in the decision; the custom of London is excepted, out of the Statute of Charles, called the Statute of Distribution. Our Stat-ute of Distribution has not excepted the custom of London, and as no such doctrine was ever held, or question made, under the custom of London, it could not have been expected, that any such would have been attempted under our Statute ; if the custom of London is to prevail, it will be necessary to examine the whole, for which see 2 Sal: 428-7. 4 Jac. L. D. 194-5-6. 4 Com. Dig. 287 — 8—9. 2 Bac. 245.</p> <p>It is contended, however, that was the Court to be governed in their decision,' by the custom of London, the instrument here shewn, could not exclude the claim of the appellee.</p> <p>1. Because the custom applies only to -personal and not to real estate. 1 Eq. cases 150, 2 Co. 593. 1 Bac. 683. 2 Bac. 294. 4- Cam. 281.</p> <p>Real estate does not constitute hn advancement. 4 Com. 286. 1 Bac. 686.</p> <p>2. Because the cases produced, are all cases of releases, that is by deed. ' ¡. <</p> <p>3. Because such release is void at law. 4 Bac. 284. 5 Bac. 705. Toller 399. Equity considers it a waiver of the orphanage share, ,and that only under restrictions,</p> <p>It would seem, that in order to make such release valid,- it must have been for advancement, for' trade, or for marriage. 4 Com. D. 290, 2 Atfc. 160. 2 Bacon 152, note.</p> <p>4. Because the release can never, in equity, operate' upon' any thing, but the orphanage, part, not on the dead man’s share,' or that which goes in a course of distribution under the Statute. Lex. Test, 426.</p> <p>The appellant being a grand child, and who sets up the custom of Loudon, to exclude the appellee, would, by that custom, be himself excluded; 1 Bac. 685. 2 Salk. 426. 4 Com. 286. 2 Bac. 251.</p>

<p>THIS w-as an action of ejectment, in common form, brought to recover lot No, 35, in the town of Georgia. (Jn the (rials at June term, 1819, several objections were'made to deeds, offered on both sides, but the principal question reserved, arose from the charge of the Judge to the Jury.</p> <p>It appeared, that the plaintiff had shewn a title to the proprietary right of John March, and the defendants had shewn a title to the proprietary right of the first settled minister.</p> <p>From the evidence adduced on the trial, these questions arose:</p> <p>1. Whether the lot in question had been severed to the plaintiff’s right.</p> <p>2. Whether it had been severed to the defendant's right.</p> <p>3. If the lot had not been severed to either right, whether the plaintiff had not been in actual peaceable possession of the lot, and been forcibly expelled from such possession, by the defendants.</p> <p>The Judge charged the Jury, among other things, that if the plainfiff had no tjtle in severally fo thq lot jn question, and was a proprietor, in common with the defendants, of |he town of Georgia; yet if he was in actual peaceable possession of thp lot, or any part, claiming the whole, and the defendants having-no title, in severalty, or better possession, expelled the plaintiff from his possession, the plaintiff might recover, on this declaration.</p> <p>Verdict for the plaintiff, for the premises demanded,</p> <p>Motion for new trial, founded on exceptions to the opinions and charge of the Judge.</p> <p>In support of the motion it was contended — That the plaintiff had declared for the whole lot No. 35, and a judgment in this suit vests in the plaintiff', as against thp defendants, the title to the whole lot: One tenant in common, can maintain ejectment against his co-tenant, for an actual ouster, but in such case, he must declare for his undivided share. Runninglon on Ejectment 191-2. 12 Mod. 567.</p>

<p>BEFORE division of a town, by diafl, the proprietors may, under the Statute, vote to a public right, the lot, on which a settler is placed, under that right</p> <p>Plaintiff in ejectment, against several, must prove all the defendants in possession, in order to recover against all.</p>

CASE stated. The plaintiff had recovered judgment against, dne E. W. Judd, in an action of trespass vi et armis, for $148,33 dnd took out execution; upon this execution, the said Judd was ' Committed to the prison of Addison County, of which defendant was keeper ; the nature of the action was duly certified in the execution. The defendant permitted Judd to go at large, 'within the liberties of the prison. Question.

<p>ACTION ou book against A and B, as partners, non est as to A, B pleads in bar tha¿ be was not a partner with A ; verdict for plaintiff. On the trial before the auditor the ' verdict is no evidence that the articles charged in plaintiff’s book were delivered, on account of the partnership concern. The parties may be examined as to the fact, on whose account the articles were delivered.</p>

<p>ACTION on note, as follows :</p> <p>“Georgia, July 17, 1811.</p> <p>“By the first day of October, 1817, for value received, Í promise to pay Bushnall B. Downs, or order, two hundred dollars worth of good neat saleable cattle, (bulls and stags excepted,) and none over eight years old ; said cattle to be delivered at the dwelling house of Samuel Webster, in Fairfax, with interest until paid, as witness my hand.</p> <p>“SAMUEL WEBSTER.</p> <p>“George Steele.”</p> <p>Plea, non assumpsit. On the trial, at September adjourned' term, A. D. 1818, the defendant offered to give in evidence, by Oral testimony ; that on the 17th day of July, A. D. 1811, the day of the date of said note, at Georgia aforesaid, the plaintiff* sold to the defendant, a quantity of goods, at the price of eleven hundred dollars ; that then and there, the defendant executed, to the plaintiff, four promissory notes, for the sum of two-hundred dolíais each,- and one for the sum of one hundred dollars ; that four of said notes, for the sum of two hundred dollars each, had been paid by defendant, and were ready to' be shewn in Court,- and that the note in question was given on account of the contract and sale of the goods aforesaid — which evidence was rejected by the Judge.</p> <p>The defendant further offered to give ini evidence, that the note, had been mutilated, when in possession of the plaintiff, so that figures' on the margin of said note, designating the amount of said note, had been cut off. The only evidence offered of this fact, was the appearance of the hote itself, which evidence was rejected by the Judge;</p> <p>Verdict for plaintiff;</p> <p>Motion for new trial, óñ exception to the opinion of the' Judge.</p> <p>In support of the motion defendant contended, that parol ev-’ idence ought io have been admitted, by the Judge, to shew that the note ought to have been written for one hundred dollars ; there are exceptions to the rulé that parol evidence cannot be admitted to contradict, add to, or vary, the terms of a written instrument; 2 Term'. Rep; 366. 2 Johnson 378. 3 Johnson 319; 5 Johnson 68. 8 Johnson 389; 6 Mass. R. 340.- 6 Cranch383. 3Granch311. 2 Dali. 171. 1 Tyler 382.</p> <p>2. That the note being mutilated by the plaintiff’s cutting off the figures on the margin, is evidence of fraud.</p> <p>Contra. That parol evidence is not admissible to shew that the note'was given, by mistake, for $200 instead of $100, or in any way to vary or alter the terms of the note, unless it can be made to appear that the plaintiff was guilty of a fraud iii obtaining the execution of the note; 2 Bla. R. 1249. 8 T. Rep. 379. Peak’s Ev. 115.</p>

THIS was an. action of assumpsit, for money had and rcceiv-' ed, and money paid. Plea, non assumpsit.

<p>Audita,Querela. The said Hawks complains,.that said Bald» win & Co. took out two writs of scire facias, in their favor, against him, as bail for one David Allen, and delivered them to David Harrington, a deputy sheriff, for service ; that said ' Harrington not having served said writs, or given him any .notice of the same, falsely made return that he served said .writs on said .Hawks, on the 17th day of February, 1817, by attaching said Hawks’ body, &c. And said Hawks alledges in his complaint, that neither said Harrington, nor any other person ever served said writs of scire facias upon him, or gave him any notice to appear and shew cause against the same, and that he had no day in Court; that judgment was rendered against him on said writs of scire facias, and execution issued, and' said Baldwin & Co. by virtue of said execution threaten .to imprison said Hawks.</p> <p>Plea. That the plaintiff from having and maintaining his action thereof, ought to be .barred, because they say the said David Harrington, on the .17th. day of February, 1817, was a legal deputy sheriff, in and for the county of Washington, and by law, had good right to serve .said writs of scire facias, on the said Hawks, and then at Moretown, in said county, the said Harrington, being deputy sheriff, served said writs of scire fa-cias, on the said Hawks, by attaching the body of said Hawks,, and then and there reading the same in his hearing, &c. *</p> <p>Replication. That said Harrington, deputy sheriff, did not serve said writs of scire facias, on said Hawks, on said 17th day of February, or at any time before or after, and issue was joined to the country,</p> <p>On the trial, at June term, 1818, the defendants gave in evidence to the Jury, the writs of scire facias described in the declaration, and David Harrington’s returns thereon endorsed, by which returns it appeared the said writs were duly served by said Harrington, as deputy Sheriff.</p> <p>It was conceded by the plaintiff that said Harrington was deputy sheriff, and had right to serve said writs in the manner they purported to be served. The plaintiff offered parol evidence to prove, that the returns endoi’sed on said writs, were false, and that said writs were not served.</p> <p>To the admission of parol eyidence, or any other evidence, to controvert or disprove said returns, the defendants objected, because the sheriff was not a party to the present suit, and his returns on the writs of scire facias were conclusive evidence that the writs were served, which could not be controverted in any action where the sheriff or said Harrington was not a party.</p> <p>The objection was over-ruled by the Judge, and parol evidence was admitted.'</p> <p>Verdict for complainant.</p> <p>Motion for new trial, founded on exceptions to the decision of the Judge.'</p> <p>In support of the motion, it was contended':</p> <p>1. An Audita Querela is, where a defendant against whom a judgment is recovered, and who is therefore in danger of execution, or actually in execution, may be discharged or relieved, upon good matter of discharge, which has happened' since the judgment. 3 Black. 405. 2 Sand 148.</p> <p>If the matter set forth in the Audita Querela would not amount tó a sufficient discharge, if the party had an' opportunity to p'lead' it, it furnishes no cause for am Andita" Querela, and no relief can be granted. Vide ut supra.</p> <p>f. Where a writ is returned by an officer, as duly served, the' defendants' estopped from denying the service, and cannot plead in abatement of the writ, by alledging a matter repugnant to the return ; if the return be false, his only remedy is by action against the officer, for a false return. Slayton v. Inhabitants of Chester, 4 Mass. Rep. 478.</p> <p>The return of a sheriff, that- dower hath been set out on a writ of seizen of dower, by three disinterested freeholders is tonclusive, and if not true he is liable to an action for a false Return. Easterbrooks v. Hapgood, 10 Mass. Rep. 313.</p> <p>If a sheriff return that he has warned defendant, when in fact he has not, Audita Querela does not He, the remedy is ágaitíst ike sheriff for a false return; 2 Saundér’s Rep; 14 8, note.</p> <p>In this case the plaintiff’s, remedy, if lie hath been injured, is an action on the case, against the sheriff, the very person who'caused the injury, and not an action against the defendants, who had no knowledge but that the writs had been legally Served. The sheriff is empowered, in his own county, to serve and execute all lawful writs, &c. to hirii directed, and his' cer-tificdte oí return, is evidence of the service. 1 Stat. p. 308.</p> <p>If any sheriff shall make a false or undue return of arty writ, &c. he shall be liable to a fine not exceeding $ 100, and to pay the party grieved, all damages, thereby, in arty way, sustained, with costs. 1 Stat. 312.</p> <p>The question, whether the return of a sheriff, be false or true, can be tried only in an action against the Sheriff, for a false return. Vide cases before cited..</p> <p>If the defendant is éstoppéd from denying the s'ervice of the writ, and can alledge nothing in a plea Of abatement repugnant to the officer’s return, he cannot give such repugnant matter in evidence on Audita Querela, but is concluded by the return of the officer. This writ lies only where the party has a good and Sufficient plea, and has had no opportunity to plead it.</p> <p>Contra. An Audita Querela is said to be in nature of a bill in equity, án állegation of fraud and deceit seerrts to bé' essential, and the' case supposed must be one where legal process has been abused and injuriously employed to purposes of fraud and oppression. But allegations of abuse are not to be heard as a ground of complaint, where the party complaining has had a legal opportunity of defence, or where the injury, if one has been sustained, is to be attributed to his own neglect, for otherwise litigation would be endless. ' Lovejoy v. Webber, 10 Mass. Rep. 101.</p> <p>It is a well settled'principle in Chancery that relief may be-obtained, not only against writings, deeds, and the most solemn assurances,6but against judgments, and decrees, if obtained by fraud. I Vesey 120, 284, 289.</p> <p>A judgment, fraudulently obtained, may be relieved against In equity. 1 Johnson’s Cases 491.</p> <p>So it may be avoided at law. For fraud is an extrinsic colla-ferial act, which vitiates the most solemn proceedings of Courts of justice. Philips’ Ev. 242.</p> <p>Lord Coke says it vitiates all judicial acts, whether ecclesiastical or temporal. Formers’ Case, 3 Co. R. 78.</p> <p>In the present case the said D. Baldwin & Co. contend that the returns of Harrington, on the writs of scire facias, are conclusive, and estop Hawks from giving evidence to the contrary, on the issue aforesaid.</p> <p>The return of a Sheriff, upon a writ which has been duly returned and filed, is prima facie evidence of the fact therein-stated; Philips’ Ev. 294. 11 East. 297.</p> <p>But, if the Sheriff’s return be conclusive, and operates as an estoppel; in any case, it cannot be so in the present, where it is only used in evidence to the Jury, on trial of an issue of fact. That which a party Would avail himself of, by way of estoppel, must be so pleaded, and relied on as such.</p>

THIS was an action on ejectment, for lot No 3, of the first division oi land, in the town of Georgia, laid to the fight of Jcriah Willard, original proprietor. Plea — General issue; Verdict for ptaintiff, and a bill of exceptions tiled by deferid-ants, &c. 1. On the trial the defendants offered to give in evidence, that a deed,, from Abraham Ives to Ira Allen, with the following indorsement, in the hand-writing of said Ira Allen, “Received to record, Nov. 27, 1784.

<p>ERROR brought to reverse judgment of Addison County Court.</p> <p>The original action was an action on the case, brought by Gray against Woolcott, as Sheriffs Deputy, for neglecting to return a writ, put into his hands to serve, in favor of said Gray, against Simeon Barnum and Cyrus Barnum, in an action on note. The writ was served on Simeon Barnum only, Gyrus Barnum being then put of the State. The officer failed of returning the writ to the Justice who issued it; On the trial of the action against Woolcott, the defendant offered to give in evidence, that the note, on which Gray’s action against the Barnums was brought, was fraudulently obtained and void 5 and, secondly, that said Barnum had ever remained within the reach of process, and might have been sued again, and was amply responsible, all which evidence was rejected. Error assigned, the exclusipn of the evidence as aforesaid.</p> <p>— That it was essential to Gray’s right of recovery against Woolcott, that he should have substantiated his demand against the Barnums j although the note was prima facie evidence of indebtedness» yet it might be impeached, and it was competent for Woolcott to take the burden of proof on himself, and shew the note to be void, and shewing the want of an indebtedness was a complete defence for Woolcott. Alexander v« Macaitly, 4 T. R. £11,</p> <p>2. If there was an indebtedness from Barnums, yet it was» proper for Woolcott to have shewn in mitigation of damages, that nothing but the price of the writ was lost, by its not having been returned ; by shewing that the debtor might at any time have been taken upon a new processs, and that he has ever remained responsible for Gray’s claim. 1 Strange 650. 1 Bos. and Pul. 27. 1 Johnson 215. Esp* N. P. cases 475.</p> <p>— It was necessary .for Gray to prove a good cause of action against S. & C. Barnum ; he did so, by proving his note, but it was not competent for the defendant to impeach that cause of action 5 if this were permitted, then, under the plea ot not guilty, the officer might make this defence even if the cause of action was a specially although the debtor would have been obliged to plead specially and apprize the plaintiff of such defence.</p> <p>2. Insolvency of the debtor may be given in evidence in mitigation of the damages, but not that the debtor is still able to pay.</p>

THIS was an action on Jail bond, in favor of plaintiffs, of New-Boston, in the County of Hillsborough, and State of New-Hampshire, administrators op the estate of William B. Dodge, against the defendants. Plea in abatement. That the plaintiffs, are not administrators, on the goods, chattels or estate of William B. Dodge, lying and being in the State of Vermont. Replication.

<p>CJISE stated, William Havens, then of Weybridge, in the Comity of Addison, executed bis note, to Ezekiel Lee, of Barre, in. the commonwealth of Massachuselt, of the following tenor:</p> <p>“Addison, Sept. JG, 1812.</p> <p>“For value received, I promise to pay Ezekiel Lee, or his order, two hundred and eleven dollars, &c.</p> <p>“WILLIAM HAVENS.»-</p> <p>Previous to September, 18 Í 4, Ezekiel Lee died, having ap<r pointed, by his will, Martha Lee his Executrix, who duly prov-; ed the will, in the Probate Court, for the County of Worcester, and commonwealth of Massachusetts, where the testator last resided, and took upon herself the execution of said will: Af-ierwards Martha Lee died, leaving the estate of Ezekiel Lee unsettled, and administration thereof was duly granted de bonis non, with the will annexed, to Samuel Lee, of said Barre, by the Probate Court, in said County of Worcester. The will of Ezekiel Lee, was never proved in any Probate Court, in this State, nor was administration of the estate of Ezekiel Lee, granted to said Samuel Lee, by any Probate Court in this State i Afterwards, and before the commencement of this suit, Samuel Lee, administrator, as aforesaid, endorsed the said note in due form of law to the plaintiff: The defendant has ever been a resident citizen of this State, from the date of the note to this time. Statute of limitations waived.</p> <p>If the Court arc of opinion the plaintiff ought to recover, then judgment to be rendered for plaintiff, otherwise, plaintiff to beoome non-suit.</p> <p>— That, the act of an administrator, in a foreign State, which is valid there, is to be considered valid, when called in question, in a suit in this State ; whether, such act be the assignment of a note, sale of land, or any other act, valid, by the laws of the State, where it has been transacted ; and, that, whether an administrator, can sue, in that capacity, in this State, without taking out letters of administration, in this State, is immaterial, in this case.</p> <p>— That Samuel Lee had, by virtue of his authority, derived from the Court of Probate, in Massachu-. sfetts, as administsator of the estate of Ezekiel Lee, deceased,no interest in, or control over, the note in question, the samé being effects of the deceased within this State’; and he could neither recover on the same by action brought in his own name,- or transfer to any other person the right so to recover.</p> <p>I. On principle.</p> <p>1. The administrator is the mere officer of the Court of Probate, aud derives his authority, not from the intestate, but} solely, from the municipal authority of the State in which he is appointed. 2 Black. Com. 506, 509.</p> <p>The dispositiori of effects, left vacant by the decease of the' Owner, is a mere thatter of municipal regulation; from this source, the jurisdiction of the Court of Probate is derived, and not from any delegation by the last owner of such effects : It is therefore like that of every municipal officer local : The power of its officers cannot be more extensive than that of the-Court itself: The jurisdiction of a Court of Probate, is a jurisdiction in rem, commencing when the power of the owner of the effects ceases ; and being in its nature local, does not extend to effects ridt within the limits of its jurisdiction. The note in question, is effects of the deceased, in this State; for,the power of the creditor or payee over the same' ceasing, ere that of any Court of Probate attaches, there is nothing but the Residence of the debtor or maker to give jurisdiction.</p> <p>2. It is contrary to the policy of our laws, to permit a foreign administrator to act; if an administrator abroad can withdraw the effects of the deceased from the State, the State must lose its priority, and creditors here, resort to a foreign jurisdiction for their pay ; where, perhaps, a priority is established, so that they may be excluded; besides, they have not, in such case, the security for the due administration of the effects, which our law requires;</p> <p>3. It will not be contended, that the Probate Courts, in Mas-sachutets, can exercise jurisdiction over lands lying in this State ; if therefore, they can authorise an administrator to act at all, in this State, they cannot order a sale of lands, if necessary for the payment of debts, nor an assignment of dower té-the widow, nor a distribution among heirs : To suppose an administrator can act at all, when he cannot proceed tó a full discharge b'f his duties, is absurd. If an administrator, appointed abroad, cannot administer upon lands in this State, one must be appointed here, for that purpose,; We have then twd administrators upon One estate, one, appointed in.Massachusetts, to administer upon personal éstate, and one, appointed in this State, to administer upon the real ; this mode of proceeding is impracticable. Which shall pay debts ? The administrator in Massachusetts. How can the Court of Probate in this State enforce that duty ? But, if the personal estate is not sufficient for that purpose, the real must be sold, and he has ho' control over it. Shall the administrator in this State pay debts ? He has no’ control over the personal property, and the redi cannot be sold if the personal be sufficient 5 if it is not sufficient, how shall the Court of Probate, in this State, know ' that fact ? Where shall creditors prove their claims ? Suppose a mortgage, in this State 5 which shall control it ? Suppose an administrator, appointed in Massachusetts, sues a note in this State, recovers judgment, and is obliged to levy on lands, what shall be done with it ?</p> <p>4. Our Statute provides for thfi probate, in this State, of willsj which have been proven abroad, 1 Stat. 145 ; if the probate, of a will, abroad, gives to the executor authority to act, in this State, this Statute is unnecessary : The Statute requires bonds of the executor, in such case ; if he can act, without authority from our Courts, this provision is nugatory ; so, it requires notice to all concerned, and gives a right of appeal.</p> <p>Any person interested, may procure a probate of the will., and the Judge may, thereupon, in his discretion, grant administration with the will annexed. This ousts the jurisdiction of the Court abroad.</p> <p>If an executor appointed abroad, whom the testator nominated to that office, and in whom he reposed a personal confidence. cannot act In this State, without authority from our Courts ; a fortiori an administrator cannot,.</p> <p>5. The Courts of Probate, in this State, have jurisdiction where the deceased resided abroad.</p> <p>1.' They have jurisdiction upon general principlés, for reasons above stated.</p> <p>2. Our Statute expressly gives them! jurisdiction :</p> <p>In case of a will. 1 Stat. 145.</p> <p>In case of intestacy. 1 Stat. 142.</p> <p>If they have jurisdiction over the effects here, the Courts where the deceased last resided, are excluded, for both cannot have jurisdiction.</p> <p>II. The view of the subject already taken, is supported by abundant authority.</p> <p>1. The jurisdiction of an ordinary of Court of Probate is local.</p> <p>In England. It has ever been held, that an ordinary has no power over effects, not within his diocese. 3 Black. Com. 509i Bac. Ab. Exrs. E. Adams v. Savage, 1 Salk. 40.</p> <p>So of the Metropolitan. If a man dies, having effects in two provinces, administration must be granted in both; “For they are two supreme jurisdictions, and neither can act in the other.” Bac. Ab. Exrs. E. Allison v. Dickinson, 1 Hard 216.</p> <p>So, no notice is taken, in England, of administration granted abroad ; but administration must be taken out there. 11 Yin. Ab. 73, 76. 2 Com. Dig. 256. 8 Yes. Jun'. 44.</p> <p>If a man dies, leaving effects, in England,- and in Ireland, administration must be granted in both. Bac. Ab. Exrs. E« 11 Vin. Ab. 76.</p> <p>So a grant of administration, in England, does not extend to the American colonies. Atkins v. Smith, 2 Atk. 63. Wright . v. Mott, 1 H. Black. 146.</p> <p>2. In the United States,</p> <p>An executor or administrator, appointed in a foreign State has no authority in the United States. Grovener v, Harris, 1 Dallas 456. Dixon v. Raversay, 3 Cranch 319. Select men of Boston v. Boylston, 2 Mass. R. 384.</p> <p>Letters of administration granted In one State-, confer no authority to act in another, nor to control effects lying out of the State, in which the administrator is appointed. Riley v. Riley, 3 Day 74. Champlin v. Tilly, 3 Day 304. Cir. Court U. S. Stanton v. Holmes, 4 Day 87. 1 Hayn. 354. Goodwin v. Jones, 3 Mass. R. 514. Fenwick v. Sears, 1 Cranch 259,</p> <p>An administrator, appointed in Massachusetts, cannot, as such, maintain ejectmept in this State. (See No. 5.)</p> <p>An administrator, appointed in another State, is not, as such, liable, in Massachusetts, to an action, so as to charge lands of his intestate lying there. Borden v. Borden, 5 Mass. R. 67.</p> <p>Nor is an administrator, appointed there, holden to account there, for effects, received by him in another jurisdiction. 2 Mass. R. 384. 8 Mass. 506.</p> <p>Finally. The authority, granted by the Probate Court, in Massachusetts, does not purport, nor is it understood by that Court, to extend beyond the jurisdiction of the State.</p> <p>The rule is settled, in that State, by its Supreme Court, which is also a Court of ultimate jurisdiction, in probate matters, that, grants of administration in one State, confer no authority to act in another. 2 Mass. R. 384. 3 Do. 514. 5 Do. 67. 8 Do. 506, cited above.</p> <p>The extent of the authority, conferred by letters of administration there, must be determined by the laws of that State, and they, having settled th&mde, as above stated, their acts must be construed with reference to it, and their grants of administration are to be taken as subject to that limitation.</p> <p>Our Courts will not, it is believed, extend the authority of the administrator, farther, than the Court, from which that authority is derived, intended to extend it.</p> <p>2. Debts due are bona notabilia. Bacon Ab. Exrs, E. Byron v. Byron, Cro. Eloiz. 472.</p> <p>A simple contract debt, is bona notabilia where the debtor resides. Bac. Ab. ut supra. Hillard v. Cox, 1 L. Raymond A62. Adams v, Savage, 1 Salk. 40. Goodwin v. Jones, 3 Mass, R. 514.</p> <p>A promissory note is a simple contract debt, within the above rule. Bac. Ab. ut supra.</p> <p>The endorsement of the note makes no difference ; for the incapacity of the administrator, is not a mere incapacity to sue, but a total want of interest in, or control over, the note in question.</p>

THIS was a scire facias, on a judgment formerly rendered on a Probate bond, executed by Jesse Hanford, executor of the will of Samuel Murdock, deceased, as principal, and defendant as surety.

<p>CASE. Plaintiff commenced his action of assumpsit, against the defendant, demanding, in the first count of his declaration, three hundred dollars, for labor, done by the intestate, prior to the 10th day of September, 1813.</p> <p>2d Count. Quantum meruit for the same labor.</p> <p>The defendant, after pleading the general issue, gave notice, that he should give in evidence, on the trial of said issue, that, after the decease of the said Strong Dickinson, on the 12th day of October, 1814, the sa-id Orrin, administrator, as afore, said, and the said Daniel Dutcher, submitted said dispute to Nathan Green, Freeborn Potter, and Jacob Allen, as arbitrators, to award on or before the 15th day of October, 1814 ; that-said arbitrators, on the 13th day of October, 1814, did award, that the defendant should pay to the plaintiff twenty dollars, in full satisfaction and discharge of the plaintiff’s demand, for the work and labor done by the intestate for defendant. On the trial, the defendant produced Nathan Green, one of the arbitra-* tors, who testified that he, Freeborn Potter, and Jacob .Alien, were chosen arbitrators, by the parties, the cause was submitted to them, and the parties agreed to abide their award ; that said arbitrators did make their award, in writing, and published it to the parties, which award was, that the defendant pay to the plaintiff twenty dollars, due to said estate, for work and labor, done by said intestate,- for the defendant; that defendant appeared satisfied with the award, and said he would pay said sum of money to the plaintiff, and the plaintiff said he would accept said sum of money, if the Judge of Probate approved of the procedure, and not without.</p> <p>The counsel for the plaintiff requested the Court to charge the Jury, that by the Statute o'f this State, an administrator could not submit a dispute, or matter of difference, relating to the estate on which he administers; except by the consent or approbation of the Judge of Probate, and that an award of arbitrators, in pursuance of a submission, riot approved by the Judge of Probate, could not be binding bn the administrator.' The council for the plaintiff also requested the Court to charge the Jury, that the testimony of Green did not prove that the defendant had himself complied with the award' of the arbitrators.</p> <p>The Judge charged the Jury, that an administrator could submit to arbitrators, without the consent of the Judge of Probate, so as to bind himself; and, that the defendant’s offer to' pay the sum of money awarded', together with the refusal of the plaintiff to accept the money, without the consent of the Judge of Probate to'the procedure, superceded the necessity of a farther tender.</p> <p>Verdict for defendant, arid motion' for new trial by the plaintiff, founded oh exceptions to the decisions of the Judge.</p>

THIS was an action on an administrator’s bond, prosecuted by John Leonard, a creditor, Case.

<p>DECLARATIONIn a plea of the case — For this, that one Zenas Newell, of said Peacham, in his life-time, at said Peacham, on the following dates, made and executed to the plaintiff, five promissory notes ; (here the notes and the liability of Newell are set forth.) And now the plaintiff say? that the said Zenas, afterwards, A. D. 1813, at said Peacham, died intestate, seized,and possessed of goods, chattels, and rights, to the value of one hundred dollars, consisting of beds, bedding, tables, desks, and chairs, and other articles, which assets and chattels, as aforesaid, the said Catharine, wife of defendant, and then widow of the said Newell, deceased, in* testate, as aforesaid, seized, took, and secreted, in her possession,, and so continued to hold the said goods and chattels, belonging to the estate of said Newell, deceased, as aforesaid, and neglected to take out letters of administration, nor has any other person taken out letters of administration, upon the estate of. the said Zenas, and so the plaintiff, says that the goods, and chattels, and assets, so left by the said Zenas Newell, intestate, as aforesaid, remain not administered upon, nor has any administration been had upon tbe estate of. the said Zenas Newell, so left, as aforesaid •, when, afterwards, in 1816, the said Oliver, the defendant, intermarried with the said Catharine, the widow of the said Zenas ; when the said' Oliver and the ?aid Catharine, defendants, together carried off, embezzled^ and alienated to themselves,, the said goods, chattels and assets, belonging to the estate of the said Zenas, deceased, as afore?, said, described as above, to the value of one hundred dollars, and continue to hold the same goods and chattels, (belonging to the estate of said Zenas, and left by him, as aforesaid,) without administering upon the same. Whereupon, the plaintiff gays that the said Oliver and Catharine, by so taking, embezzling, and alienating to themselves, the goods, chattels, and assets, belonging to the said Newell, and left by him, and not administered upon, as aforesaid, have become executors in their own wrong, and are liable to, and stand chargeable with, the debts of the said Newell, deceased, and so .contracted by the said Newell, in his life-time, and then and still due to the plaintiff, and specified in the said five promissory notes, as by the force and provisions of a Statute law of this State, entitled, “An Act for the' Probate of Wills and settlement of intestate estates,” passed March 10,1797, will appear, and being so liable to pay the debts of the said Newell, as aforesaid, an action hath accrued to the plaintiff, to have and recover of the defendants, in manner aforesaid, the amount of his demands and interest. Yet, &c. To the damage, &c. fifty-three dollars.</p> <p>Pleas, 1. That Newell did not assume and promise.</p> <p>,2. That Newell did not assume and promise within six years:</p> <p>3. That action did not accrue within six years.</p> <p>4. That defendants were never executors.</p>

<p>FALSE IMPRISONMENT.</p>

THIS was an action of trespass, for an assault and báttery and false imprisonment.

<p>THIS was an action on the, case — For that, whereas, by a certain Statute law of this State, entitled “An Act reducing into one the several Acts for laying out, making, repairing, and clearing highways,” among other things it stands enacted :</p> <p>“That if any special damage shall happen to any person or persons, or to his, her, or their teams or carriages., by means of any insufficiency, or want of repairs, of any highway, or public bridge, in any town, within this State, the party sustaining such damages shall have a right to recover the same, in an ac tion on the case, against such town, to be prosecuted before any Court, proper to try the same, together with costs.”</p> <p>And whereas, Polly Bailey, of Fletcher, in the County of Franklin, a minor daughter and servant of the said plaintiff, on the 23d day of October, A. D. 1813, in attempting to pass a highway, through a part of said Fairfield, leading from the dwelling-house of Burr Fanton, in said Fairfield, to the dwelling-house of Andrew Bradley, in said Fairfield, on horse-back, by means of the. insufficiency and want of repairs of a public bridge, in said highway, in the town of Fairfield, the said Polly was thrown from said horse, and was thereby greatly injured and wounded, and had one of her legs broken ; so that the said plaintiff, by means of the insufficiency and want pf repairs of said bridge, lost the service of the said Polly for the space of nine months, and “was put to great expence in providing for the maintenance and cure of the said Polly, to wit, the sum pf two hundred dollars, to his damage, &c.</p> <p>This action was tried at June term, 1819, and a verdict found for the plaintiff. A motion in arrest was then filed for the insufficiency of the declaration.</p> <p>In support of the motion, it was contended :</p> <p>1. That the Statute is a penal one and must be construed - strictly. 0</p> <p>É. That the meaning of the Statute is so clearly expressed as not to admit of a construction that will include this case.</p> <p>Polly Bailey may have an action, and it is a loose construction to admit of several actions for the same injury.</p> <p>If the Court go beyond direct and immediate injuries there is no stopping-place within the circuit of possible loss or injury.</p> <p>There is no case of sueing for loss of service, except in case ol assault and battery, or seduction, and there is no analogy between those cases and the present.</p> <p>Contra* 1. The Statute is remedial, and must be construed so as to carry into effect the intention of the Legislature.</p> <p>■ 2. The injury complained of, in the declaration, is within the letter and spirit of the Statute ; the words, “special damage,’’ intend something more than direct injuries. When the Statute makes it the duty of a town to repair public bridges, this action may be maintained at common law, if the Statute be defective, and our case is within the common law, plaintiff may recover in this action brought on the Statute. Sal. 212. 1 Bla. Com. 89, 90.</p>

<p>IN an action on the case, against a town, to recover damages for an injury, susatined by a public highway being out of repair iq 3 town, the plaintiff may prove the road to ■ he a public highway, by parol evidence; that the Select toen of the town laid out and opened said highway, that said road had ever since been used as a public highway, and that work had been done upon it, in the same manner as on other public highways, in said town, although there was no survey-bill, of said road, recorded.</p>

EJECTMENT for lots No. 99, 100, and 143, in the town of Georgia. Writ dated 15th, and served the 17th August, 1814. On the trial, at June term, 1818, the following exceptions Were taken : Plaintiff claims, by possession, and offered a deed from Allis, án original proprietor, to Samuel Wells, dated 1789. Wells Sold to Coon, who went into possession.

THIS was an action of eje'etment, for a tract of land in the town of Berkshire; described by metes and bounds, containing twelve acres.

ERROR brought to reverse a Judgment of Franklin County Court, rendered November term, 1819. The plaintiff below, (Torrey) brought his action before ,a Justice Peace, on a confession note, for sixty dollars, stating' that the sum of fifty-three dollars was allowed by the plaintiff, and agreed to be endorsed on said Judgment. Plea — That the Justice had no jurisdiction. Plea over-ruled by the County Court.

<p>THIS was an action of debt, brought to the County Court, by the plaintiff, as a common informer, to recqver the sum of thirty-seven dollars and fifty cents, forfeited, by the defendant,in consequence of an offence against the Statute of usury.</p> <p>Plea — To the jurisdiction of the County Court.'</p> <p>— That the Statute of 1811, fully empowers Justices of the Peace, to try all cases of ■a civil nature, (except slander, &c. where the debt, &c. does not exceed fifty-three dollars •, the County Court have not concurrent jurisdiction, and, this case is a civil action. 3 Black. Com. 161.</p> <p>But, if the action should be considered of a criminal nature, in which the State is a party, the Supreme Court has exclusive jurisdiction.</p> <p>— That this is not a civil action, within the meaning of the “Act empowering Justices of the. Peace to hear, try, and determine all pleas and actions of a civil nature, (with certain exceptions) where the debt or other matter, in demand, does not exceed the sum of fifty-three dollars but, that it is an action of a criminal nature, an action lor an offence against a penal Statute, a suit for a crime or misdemeanor, and described as such, in an Act entitled “An Act for the limitations of sust on penal Statutes, criminal prosecu.. tions, and actions at law •” and, that the County Court have cognizance of all criminal matters, of every name or nature, except such a3 are made cognizable only in the Supreme Court or before Justices of the Peace ; and, that this is not an action wherejrr the State is a party, because the State cannot become non-suit in the action.</p>

<p>SUPREME Court have jurisdiction of Theft under seven dollars.</p>

<p>THIS was an action of debt, on bond given to secure the payment of internal duties.</p> <p>Plea — To the jurisdisdiction of the County Court, where the suit was commenced. Demurrer.</p> <p>For the defendant, it was contended, that the County Courts of the State of Vermont, have no jurisdiction in such cases as this, for that the Act of Congress* giving them jurisdiction is unconstitutional and void.</p> <p>All causes, arising from the existence of the United States as a government, must be exclusively under the jurisdiction of the United State’s Courts. The debts due to the United States are of this nature and the State Courts cannot have concurrent jurisdiction.</p> <p>■By the Constitution of the United States, a Court of the United States can be erected by the Legislature of the general government, but the Judges can be appointed only by the President and Senate ; by this Act the power of appointing Judges, who have jurisdiction in certain causes of the United States, is given to the Legislature of this State ; this is an evasion of the Constitution : if Congress can give jurisdiction to the State Courts in one case, they can in all. Congress are bound to erect Courts for the administration of Justice, to be filled by the President and Senate, and cannot erect State Courts into United States’ Courts. The officers of this State are not accountable to, and the Judges of the State Courts cannot be impeached by, the United States.</p> <p>In case of a Jury trial, ivhat oath is to be administered ? By our oath the Jury are to decide according to the laws of this State ; but, in this case, they ought to decide according to the laws of the United States. Cited, Constitution of the United States, Article 3, Section 1 and 2. 1 Statute 17. Mentioned, a case before the Supreme Court of Maryland, published in Niles’ Register, of April, 1817. 1 Wheaton’s Rep. 334, 381.</p> <p>Contra. This is an action of debt, and the Court having jurisdiction over the subject matter, are to consider the United States as a person, in law, who can maintain this action.</p> <p>The object of the Judicial power of the United States, ift civil cases, is to take cognizance of such cases, where, by reason of the independent sovereignty of the States, no remedy could be applied, as between citizens of different States ; giving jurisdiction to the Courts of the United States, does not take away the power possessed by other Courts. The State Courts have concurrent jurisdiction, in all cases where they had jurisdiction before the establishment of the Constitution of the United States, unless taken away by the Constitution of this or the United States ; in all cases, for the recovery of the debts, the State Courts would have had jurisdiction had no United States been erected; the ordinary jurisdiction of the State Courts extend to this case ; that jurisdiction is not taken away by the Constitution of the United States ; Congress, by the Act of March 3, 1815, by repealing so much of the Act of September 24,1784, as relates to this case, gave the State Courts a right to take cognizance of the same, and the United States may have their election in which Court to bring their action ; suits of this nature have been frequently brought in the State Courts, and in the same instances removed into the Supreme Court of the United States, and this objection never made.</p> <p>There is difficulty in the trial, as the Constitution and laws of the United States are laws of this State, and our Courts are bound to take cognizance of the same,</p>

<p>DECLARATION— In a plea of the case, for that the said Robert, at Woodstock, aforesaid, on the 17th day of August, J816, became bail^ifi'a Jail bond, to the keeper of the Jail, in said County, in the penalty of $60, for the admission of one John Marsh, to the liberties of the yard, who was imprisoned on an execution in favor of Mower and Ward, for the sum of $31,77, in the whole, dated August 10,' 1816, signed by Benjamin Swan, Justice Peace ; the said John Marsh being committed to said prison, as aforesaid, and admitted to the liberties of said prison, the said Willard, the defendant, on the 27th day of August, last aforesaid, then and there, well knowing the said John Marsh to be a prisoner within the liberties of the Jail-yard, aforesaid, did wilfully and maliciously force the said Marsh out and over the bounds of said liberties and out of the yard of said Jail, in which the said John was imprisoned, as aforesaid, wherefore, and by reason of all which said premises the penalty of said bond bacame absolute, and the said Robert liable to respond the same to the said sheriff, wherefore the said Robert says, that the said Willard, by reason of the premises aforesaid, became liable to him, the said Robert, to pay him the amount of the penalty of said bond, and all damages and costs by said Robert expended, in and about the same ; to the damage of plaintiff, one hundred dollars.</p> <p>Plea — That the cause of action is within the jurisdiction of a Justice of the Peace, and not within the jurisdiction of the County Court.</p>

<p>ÉRROR brought to reversal a judgment of Franklin County Court, November term, A. D. 1819.</p> <p>The original action was, an action of ejectment, brought by lessor against assignee of lessee, for the non-payment of rent.</p> <p>Pica — Not guilty.</p> <p>On the trial the defendant acknowledged that he had not paid the rent due on said land, and offered to give in evidence that one Silas Hathaway formerly owned said land, and that he gave a durable lease of said land, reserving annual rent on the same, to one Russell Emery, and afterwards Samuel Hitchcock and Abel Allis levied an execution on said land, in their favor, against said Silas, and that the time of redemption of said Silas had expired, and the interest of said Silas"'passed into the said Hitchcock and Allis, and after all the title had passed out of said Silas, he deeded, to the plaintiff, said land ; and that said Hitchcock and Allis gave said Russell Emery legal notice to pay said rent to them ; and afterwards the plaintiff got possession of the lease given by said Silas to said Emery, and after the same was recorded, and that he gave up said lease and gave a lease in his own name, to the said Emery, and the said Emery afterwards deeded said land to defendant, and the defendant was legally notified by those legally holding under the said Hitchcock and Allis, to pay rent to them, and that defendant came into Court to know to whom he should pay said rent, which evidence was rejected by the Court.</p> <p>Bill of exceptions, filed by defendant, and this writ of error founded thereon — error assigned, was the rejection of the evidence aforesaid.</p>

<p>THIS was an action on the case. Declaration stated, that defendant, wrongfully and unjustly contriving and intending to imprison and harass the plaintiff, did falsely and maliciously ckuse a writ of attachment to be- issued, from the Circuit Court of the United States, returnable to Mayterm, A. D. 1314, in the name, and favor of one William Hull, on a note oí hand, dated January 16, A. D. 180Í, executed b.y said Silas, for $6000, payable in six months, with interest, directed to the Marshal, &c. demanding damages $14,000; that said note had been, before the praying out of said writ, paid to said Hull, by plaintiff; that said Hull had no claim dr demand, or probable cause of action, against the plaintiff, on said note or otherwise; all which was well known to said Heman.</p> <p>And the said Heman, with full knowledge, &c.* did procure the said writ to be put into the hands of a deputy marshal, and in April, A. D. 1814, caused the said Silas to be arrested, and taken into custody, &c. and caused hind to procure bail for his appearance at said Court ; and plaintiff was compelled to attend said Court, at great loss, &c. and defendant caused said writ to be entered, plaintiff to procure special bail, and the cause continued to October term, 1814.</p> <p>And, the defendant did obtain a judgment, in the suit aforesaid, in favor of said William Hull, at said Court, for $10,930,37 damages, and $27,46 costs, 'well knowing there was no cause of action against the said Silas ; and the defendant caused an execution to issue on said judgment, and plaintiff to be committed to prison, and there kept for the term of three years, without any reasonable or probable cause. That plaintiff brought a suit in chancery, against said Hull and Allen, before said Circuit Court, at May term, 1815, to vacate said judgment and perpetually enjoin said execution and judgment, which was entered in said Court, May term, 1815 ; that, at said term of said Court, he obtained an injunction on said execution, dated May 9, 1815, and caused the same to be served on defendant, before he had caused said Silas to be imprisoned, as aforesaid ; that defendant, in defiance of said injunction, caused plaintiff to be imprisoned, as aforesaid ; that defendant delayed the decision of said chancery suit, until October term, 1818 ; that, at October term, 1818, plaintiff obtained a decree, that said note’ was paid, previous to the commencement of the aforesaid suit, on said note, and a perpetual injunction on said judgment and execution. Plaintiff says, that all said doings of the defendant, were wicked, &c. and intended to ruin said Silas, in reputation and property; that, by reason of the premises, plain, tiff suffered great pain in body and mind, his health was greatly injured and impaired, and his life exposed, and he was hindered and molested in his business, especially in several law-suits, by which he lost the demands, to the amount of fifty thousand dollars. Plaintiff avers he expended $5000, in prosecuting his suit in chancery ; that he paid large sums of money in his suits, lost by his unlawful imprisonment; that defendant, as agent and servant of the plaintiff, did, in 1805, pay said note to the said William, with the property of the said Silas, and that the said William, did, then and there receive the same, in full satisfaction of said note, and that defendant received said note of said William Hull, to deliver to the said Silas ; that defendant had fall knowledge of all the facts aforesaid, and that defendant’s acts were malicious, and done with a view to oppress, &c. and to extort large sums of money and claims, that plaintiff legally and justly held against said Heman. To the damage of the plaintiff $100,000.</p> <p>Plea — In bar, recites the execution of the note to Hull, that on the 1st day of March, 1805, the same being unpaid, and still due from said Silas, to said William Hull, the said Hull, fora good and valuable consideration, assigned to said Heman to bis own use and benefit, the said note ; that defendant, for the purpose of collecting the said debt, instituted a suit, and prayed out a writ of attachment, returnable to the Circuit Court May term, 1814, which writ was legally served ; that said writ was duly returned to the Circuit Court, May term, 1814, and entered in said Court; that said Hull appeared by his attorney,, C. P. Van Mss, and said Hathaway by his attorney, Elnathan Keyes ; and said Hathaway prayed for and obtained a continuance of said cause, to the next term of said Court, at which time the parties appeared, by their attornies, aforesaid ; and, said Silas pleaded that he did not assume, &c.</p> <p>Issue to the Jury, and verdict for plaintiff 10,930 damages? and. his costs ; and judgment qf Court was duly rendered on said verdict, for $10,930 damages, &c. $27,49 costs ; that said Heman on the 14th day of October, 1814, prayed out a Ca. Sa. returnable in sixty days, which was returned non est; and, on the 4th of May, 1815, said Heman caused an alias Ca. Sa, to be issued, which was delivered to the Marshal of the Vermont District, who, by virtue of said execution, and long before the injunction, mentioned in plaintiff’s declaration, was granted, did arrest and confine the body of said Silas, until the 15th of of May, 1815, when he was admitted to the liberties of the prison, on giving bonds ; that said action was. not prosecuted maliciously, &c. but for the purpose of collecting a just debt. Demurrer.</p> <p>That an action will lie for maliciously prosecuting a civil suit, and holding to bail, without probable cause. 1 Saunders 27, 228. 3 Term 183.</p> <p>The injury from holding to bail, is the same here as in England, where an oath is necessary, and though the oath is evidence of malice, it does not preclude other evidence ; that commencing and prosecuting a civil suit, with intention to imprison and harrass the adverse party, and not to litigate a right, is actionable.</p> <p>2. The judgment in the Circuit Court may shew; probable cause, as to Hull, but the gist of this action, is the unfaithfulness of the defendant, as agent; and, that he. retained the evidence of payment, in his own hands, and thus compelled the plaintiff to suffer the judgment; defendant cannot be protected by that judgment.</p> <p>This cannot be called an action, by a principal against, his agent for misconduct, in his agency ; the averment, towards the close of the declaration, does not directly alledge the agency, but only introduces the word agent, in the averment of payment; this is an action for maliciously prosecuting a civil suit, and</p> <p>1. That no action will lie for the malicious prosecution of a civil action, without probable cause. Saville v. Roberts, 1 Sal. J4. Bray v. Patrid, Cro. Eliz. 836. Crokes’ James 133r4, 1 Bos. and Pull. 205. 1 Saund'. 227. 6 Mod. 73.</p> <p>2. Admitting that an action lies for the maliciously prosecuting a civil suit, without probably cause, yet, if by the pleadings, it appears there was any, the least cause for the prosecution, the action cannot be sustained, and in this cause the defendant insists that his haying recovered a judgment, in the suit complained of, .shews a sufficient probable cause; even though the said judgment should be afterwards reversed or set aside. Reynolds v. Kenedy, 1 Wilson 232. Markham v. Pe-siod, Cro. James 130. Johnson v. Sutton, 1 Term 493.-</p> <p>3. It is indispensably necessary that the original prosecution should have terminated in favor of the present plaintiff, before the commencement of this action. 2 Esp. N. P. 124, Goddard v. Smith, 1 Sal. 21.</p> <p>4. The judgment, in the suit c'omplained of, has never been reversed or set aside ; the bringing a bill in chancery, was an admission that the proceedings at law, were all regular and conformably to law, and the injunction did not operate upon the judgment, but solely upon the person, by preventing him from proceeding farther with the judgment. 1. Mod. Chan. 108-9. Practical Reg. 250-1. 1 Collectanea Jurídica 52,72, and 59.</p> <p>An injunctiou protects the party, obtaining it, from any farther proceedings at Jaw; it confers no. right, as the law will not permit the support of the present action, the injunction could not confer the right; a court of law cannot punish for disobeying the injunction, but the court of chancery only. , The decree that the note was paid, does not imply that the action wa;s unfounded, or that Allen was conversant of the payment, or that there was any fraud; the note might have been paid in equity, and not in law, and so no imputation of blame, for proceeding at law.</p> <p>The plaintiff is presumed to have stated every fact, in his favor; he has not stated that any costs were adjudged against Allen, which shews the court oí chancery did consider there was no blame attached to Allen.</p> <p>5. The plea in bar, is sufficient, as it shews probable cause, by setting up special matter. 2 Esp. N. P. 126. ‘Croke’s Eliz. 900, Paine v. Rochester, Croke’s Eliz. 871.</p>

<p>MARRIAGE.</p> <p>WHENEVER it is necessary that a minister be certified of consent, according to the Statute, before he proceed to marry a minor, such consent must be of the parent, if either be living.</p> <p>A master, within the meaning of the Act, chnnot be constituted by verbal contract.</p>

ACTION on book. The case was, that before the commencement of the present action, Giles T. Chittenden, executed to the plaintiff a deed of lands, in Burlington, and a deed of lands in Colchester; and, on the execution of said deeds, the said Giles took from the said Guy Catlin, a memorandum, in writing, as follows : “Received, at Quebec-, this 14th day of August, 1816, from Giles T. Chittenden, his two deeds of this date, conveying lands in the towns of Burlington and…

THIS was an action of ejectment. The declaration contained two counts, describing separate and distinct pieces of land. Verdict for plaintiff, that defendants are guilty on the first count; and, on the second count, that David Clark is guilty, and Foster not guilty.

<p>AN individual Juror cannot testify to Ilia own misconduct, or that of his fellow Jurors.</p> <p>Where the Jury had agreed on a verdict for plaintiff, and in ascertaining the amount of damages, each Juror marked a sum, and the whole amount was divided by 12, but the Jury did not return the quotient, as the amount of damages, but deliberated and r eturned a less sum ; no cause for setting aside the verdict.</p> <p>Where the verdict was sealed, and one of the Jurors is dissatisfied with the verdict, and requests the foreman to ask leave of the Court, to reconsider the verdict, and the foreman promises so to do, but does not ask leave, and the Jury, when called upon, in open Court, assent to the verdict in the usual form, no cause for new trial.</p>

ERROR brought to reverse a judgment of Rutland County Court. The original case, was an action of Indebitatus assumpsit, brought by Rutland against Pawlet, to recover money, paid in supporting a transient person, belonging to Pawlet, under'the 11th section of the Act concerning legal settlement and providing for the poor, 1 Stat. 388’. The declaration did not alledge that the person provided for was poor and unable to respond.

THIS was an action of assumpsit, for money, &c. expendéd in providing for one Schuyler Chicester, a pauper, in his last sickness ; and the last legal settlement of the pauper was al-ledgedto be in the town of St. Albans. Plea — General issue.

THE plaintiffs decíared, in a plea of the case, for that, where, as, one James Goodwin, on the 14th day of October,. 1811, being a stranger in St. Albans, and whose last place of legal set' tlement, was in said town of Georgia, was taken dangerously sick, in said town of St. Albans, and could not be removed to said town of Georgia, without endangering his life ; of which the said overseers of the poor, of said town of Georgia, on the same day and year, last aforesaid, had…

<p>WHERE a prisoner, having a legal settlement in this State, in the town of R, is confined in Jail, on civil process, in the town of S, and is poor, aud in need of relief, and the Jailer represents the situation of the prisoner, to the overseers of the poor of the town of S, and demands of them to provide for the prisoner, and the overseers refuse, and the Jailer, residing with his Family, in the Jail-house, provides for the support of the prisoner, he may recover the expense of süch support, of said overseers.</p>

THIS wás á writ of error, brought.to reverse the Judgment of Rutland County Court. ' ’ ’ The case was, an order of removal of two paupers, made in favor of the town of fra, upon the town of Clarendon.

<p>' A warning to depart a town must be recorded before the end of the year’s residence of the person warned.</p>

<p>APPEAL from an order of Justices for the removal oí John Slyter and wife, from the town of Poultney to the town of Fair-Haven.</p> <p>On the trial of the issue, whether duly or unduly removed, at September term, 1818, it was proved that Jacob Slyter, the father of Jdhn, moved into the town of Fair-Haven, in February, 1801, and there resided a number of years, without being warned out; that John Slyter, the pauper, was then 19 years old ; testimony was given to the Jury that John Slyter, the pauper, absconded from Fair-Haven, in December, 1801, and had not returned until he was brought back by the order of removal.</p> <p>John Slyter swore that he was lawfully married to Asenath • Slyter, the person rem'oved as his wife.</p> <p>The town of Fair-Háven then offered Asenath Slyter to prove that previous to the time, when it was alledged she had married Slyter, she was lawfully married to one Amasa Austin, who is now alive, which testimony was rejected by the Judge.</p> <p>The town of Fair-Haven then offered to prove her marriage, with Austin, by reputation, and cohabitation with him as his wife, and that Austin was yet alive, which testimony was rejected by the Judge.</p> <p>The Judge charged the Jury, that the said Jacob Slyter, by removing, as aforesaid, into the town of Fair-Haven,- in February, 1801, and there residing a number of years next after the 6th day of November, 1801, without being warned out agreeably to the provisions of the Statute in that behalf, thereby gained a settlement for himself and family ; and also, that it would make no difference, as it respected the settlement of John Slyter, the pauper, whether he went away in December, .1801, or not, as his settlement would still follow the settlement of his father ; and, if his father gained a settlement during the minority of the son, as aforesaid, he also gained one for John Slyter, unless said John had gained one for himself.</p> <p>Verdict for the town of Poultney.</p> <p>Motion for new trial, by the town of Fair-Haven, founded on exceptions to the decisions and charge of the J udge.</p> <p>1. That the Act in relation to settlements passed November 1801, has no eifect upon those who were already in town, but only on those who should thereafter come into any town, &c„ 4 Burr 2057, 6 T. R. 330. Bur. Set. Cases 509-25. Selwyn N. P. 19.</p> <p>2. That Asenath Slyter, so called, was a competent witness to prove her marriage with Amasa Austin; the town of Fair-Haven had a right to her testimony, and could not be deprived of it by the town Of Poultney, first calling on John Slyter, her supposed husband.</p> <p>3. Evidence of her marriage with Austin, by reputation, ought to have been received, as it is admissible testimony, in all cases, except two, viz : Prosecution for Bigamy, and actions of Crim. Con. Swift’s Evidence 140.</p>

THIS was an appeal from an order for removing Robert Sharp, a pauper, from the town of Benson to the town of West* Haven.

ACTION of debt to recover the penalty for receiving ‡. fraudulent conveyance of lands, with intent to defraud the plaintiffs of their debt. Motion to ¡dismiss, for want of a minute of tbe true day9 month, and year, when the same was exhibited and signed.

<p>PLEAS AND PLEADINGS.</p>

SCIRE Facias, in common form, brought to the County Court of Grand-Isle County, on a judgment rendered on confession, by a Justice oí the Peace, for $150 damages. Flea — -That an execution issued and was returned satisfied. Replication — That the execution was, by mistake, levied on property not the debtor’s. Demurrer.

ERROR. This writ was brought to reverse a judgment of Franklin County Court, November term, 1819, in favor of John Nason, against Samuel* H. Farnsworth.

<p>WHER.E a claim, on book, is allowed by commissioners on an insolvent estate, objection by an heir, and an appeal prosecuted by the creditor; the heir is allowed, in the name of the executor, to file a declaration, in Supreme Court, on note, against the creditor prosecuting the appeal.</p>

<p>PLEDGE.</p> <p>A requests B to endorse for him, to the bank of T, for ,£2(100, and in order to secure B, procures C to sign a note with him, payable to B, for the sum of $2000, and delivers the note to B. Afterwards, A wishes B to endorse again, for him, to the hank of T, for $2000. B endorses, and A pledges the same note, as security, for the second endorsement : On C’s being enquired of, by B, whether A had a right thus to pledge the note, he replied, that he was liable, on the note, to B, and' that A might thus pledge it. Af-terwards, A procures B to endorse, for him, a blank note, which A Dlls up, to the Farmer’s Bank, for $2000, -and pays the note to the bank of T, the said note signed by A and C, still remaining in the hands of B; B is compelled to pay the last note to the Farmer’s Bank.</p> <p>Held — That the pote, signed by A and C, in the hands of B, was a continued guarantee to the amount of the same, and remained as security generally, for any sum A might procure of B, or by means of B’s name, as surety, to the amount of $2000.</p>

<p>THIS was an action on a Jail bond, and the plaintiff was a resident of Burlington, in this State.</p> <p>Plea — That Ephraim Robinson, the principal, was discharge ed, under the Act relating to .Jails and Jailers, and for the relief of persons imprisoned therein ; the proceedings of the Justices were set forth, in the plea, and it appeared the citation was served, by leaving a true and attested copy, in the brands of the plaintiff’s attorney, Alvan Foote, Esq. at his office, in Burlington, because the said Ariel Thornton was not to be found.</p> <p>The certificates were regular.</p> <p>That a Court of Jail</p> <p>delivery cannot act, except its process be regular; in this case, the citation ought to have been served on Thornton, personally, and the citation not being so served, the certificates cannot avail the defendants.</p> <p>That the proceedings were regular, and that the certificates of the Court, that Robinson was legally discharged, are conclusive. 3 Cranch 302.</p>

ACTION on Jail bond. Plea — Taht the the debtor, who was confined in the limits, had been admitted to the poor debtor’s oath, and that the Justices had adjudged that he ought to be discharged. Demurrer.

<p>PROMISSORY NOTE.</p>

PLAINTIFF declar.es, that, whereas, heretofore, to wit, on the 30th day of October, 1810, at Whiting, in tlie County of Addison, the said Walker was indebted to the plaintiff, in the sum of $58,72, for fees, legally accruing to the plaintiff, as sheriff’s deputy, from the defendant, on a certain execution, in favor of the Vermont State Bank, against the said defendant, Lyman Clark, and Stephen Clark; in consideration thereof, the said defendant, to wit, at Whiting,…

THIS was an action, on a negotiable note, executed by the defendants, to one Spalding Russell, and by him endorsed to plaintiff.

IN this case, the President, Directors, & Co. of the Ver* mont State Bank, attached the whole township of Montpelier, as the property of Gove, and others, and sold thé Store, in question, to the plaintiff, as the property of Gove, on the execution ; prior to the attachment, Gove had deeded the store to one Langdon, which conveyance was probably fraudulent, and afterwards, and before the levy of the execution, Langdon-had deeded to Gove, and Gove had deeded to defendants who…

<p>WHERE A., mortgages land to B. and the debt is paid as it falls due, but the morfc* ;{age is not discharged on record, and afterwards A. mortgages to C, : A. arid B. then fraudulently procure a foreclosure of the mortgage to B. so that B, ’s title On record appears fair ; afterwards D. purchases lina fide, under the title of B.</p> <p>Held — That D. shall hold the land against C.</p>

<p>. WRIT of Error, founded on bill of exceptions allowed by •the Judges of Franklin County Court.</p> <p>The defendant in error, (plaintiffs below) declared in assump-sit : That whereas the said plaintiffs, on the 16th day of Octo-bei’, 1816, owned a large quantity of white pine masts and bowsprits, to wit, forty-one, then lying in Missisque river in the towns bf Highgate and Swanton, in said County of Franklin, marked H. X. and the said defendants, at St. Albans, on the day and year last aforesaid, purchased of the plaintiffs the said forty-one sticks of white pine masts and bowsprits, as they lay in Missisque river, and promised to pay the said plaintiffs therefor the sum of twelve dollars and fifty cents, for each stick of said timber, excepting such sticks (if any there were) that were, at the time of making said contract, broken and rendered unfit for market, by geting on the rocks or otherwise rendered unfit for market, to be paid to the said plaintiffs or either of them, at the dwelling house of the said Roswell But-ior, in St. Albans, on the first clay of September, lélf ; averment that said forty-one sticks were unbroken, &c.</p> <p>2d count, for goods sold and delivered.</p> <p>Plea — Non assumpsit.'</p> <p>Verdict and Judgment for plaintiffs.</p> <p>On the trial the defendants contended, that, by the contract set forth in the declaration, the defendants were liable to pay for no more timber than they actually received, and offered evidence to show that they received but ten sticks of the timber mentioned in the contract. This evidence was excluded by the Court;</p> <p>The defendants then offered to shew, that, in the spring of 1817, before the timber was received by the defendants, a share of said timber was destroyed by certain persons, without.the privity or consent of the defendants. This evidence was excluded by the Court.</p> <p>The defendants were permitted to shew the quality and quantity of the timber which plaintiffs had in the river,' at the time of the contract, and that instead of forty-one sticks there were but ten sticks which they could have received.</p> <p>Errors assigned :</p> <p>1. Insufficiency of the declaration,</p> <p>2. The exclusion of the evidence;</p> <p>That the contract declared on, was executory to buy and receive at a fixed price ; that the property of the timber not actually received by plaintiffs in error, still remains in defendants in error, and at their risque as to the acts of God, or of strangers, and that defendants could recover for no more timber than was actually received by plaintiffs, or at most, for that which they could réa-sonably have taken possession of.</p> <p>That as the promise, by the plaintiffs in error, was to pay for the sticks of’ timber that then lay in Mis-sisque river, and to take them there ; a delivery of the timber was not necessary, nor was it competent for the plaintiffs in. error to prove that the timber was taken by trespassers, after the contract was made.</p>

<p>THIS was an action on a promissory note, given by defendant to one Philip Haynes, and by him endorsed to the plaintiff. The defendant originally pleaded a set-off of a demand against the said Philip for a breach of the covenant against incum-brances, in a deed of conveyance ; to this plea the plaintiff demurred.</p> <p>At the January term of the Court, 1818, judgment was rem-dered for the plaintiff, on the demurrer, on the ground that the defendant’s claim was not the proper subject of a set-off, and the cause continued July term, 1818, for trial upon the general issue.</p> <p>A verdict was returned for plaintiff, and the cau^e reviewed.</p> <p>In November, 1818, the Legislature of this State passed an Act extending the right of set-off to all cases of contract. The defendant then pleaded de novo, a set-off of the same claim, and added another count on a similar covenant executed by the said Philip.</p> <p>The plaintiff demurred as before, and defendant joined in ' demurrer.</p> <p>That the demand of the defendant against Philip Haynes, is not properly pleaded in off-set ; it was not at the time of the commencement of plaintiffs action, and of course was not at the time of the endorsement, a proper subject of set-off to the note.</p> <p>1. Uncertain damages arising from a breach of covenant, are not pleadable in off-set, under the English Statute, which is similar to ours. Hawlet v. Strickland, Cowp. 506. Win-» gatt v. Wales, 6 T. R. 488. 2 Burr 1024.</p> <p>It has been so decided in the United States’ Courts. Win-Chester v. Hackley, 2 Cranch 344.</p> <p>And in New-York. 2 Johnson 150,</p> <p>And in this State. Rolíins v. Walker, Chittenden Co. ISIS and in this case, January term, 1818.</p> <p>2. It is insisted that the Act passed Nov. 11, 1818, does not affect the plaintiff’s right of action, it having accrued before the law was enacted ; for,</p> <p>1. It is a general rule that all Statute laws act prospectively, and not retro-actively to divest a vested fight. 1 Bla. Com. 4,5- 4 Burr 2462.</p> <p>2. To give an Act that operation would render it as unjust as an expost facto law. Fletcher v. Peck, 6 Cranch 87.</p> <p>3. It would render it a law impairing the obligation of contracts, invalidating a contract which was valid when made.</p> <p>4. It is not a declaratory law, for a declaratory Statute is one which declares what the common lazo is, not one which regulates the construction of a former Statute. 1 Black. Com. 86..</p> <p>5. The Legislature has not the power of construing laws. Bac. Abr. Tit. Statute H. Ogden v. Blackledge, 2 Cranch 272-, Constitution of Yermont, section 6.</p> <p>And it is an establishad rule that a Statute shall not be made, by construction, to operate retro-actively so as to affect a vested right.</p> <p>Finally. A plea in qff-set relates to the commencement of the action ; if, therefore, the defendant’s demand was not, at that time, proper to be pleaded in off-set, it is not now, Evans v. Prosper, 3 Term Rep. 186.</p> <p>insisted : That by the 92d section of the Judiciary Act, passed March, 1797, he had a right to plead this matter in off-set; that this Statute is materially different from the English Statute of off-set; that the construction given to the English Statute of off-sett is not applicable to this Statute, and that such had been the decisions of the Supreme Court upon this Statute, for a course of years up to 1817, when a different construction was given to this Statute by the Supreme "Court; that the Legislature, by an Act passed Nov. 11, 1818, have settled the construction of this Act, and deterib'ined that the construction given it for a course of years, by the Supreme Court, was the correct construction ; and, that the matter contained in the defendant’s plea, is proper matter to be pleaded |n off-set, under the 92d section of the Judiciary Act. See Laws passsed October session, 1818, page 75.</p> <p>This Act only affects the remedy and mode of adjusting the mutual claims, but does not affect the right.</p> <p>All Statutes of set-off relate to prior contracts as well as those subsequent. The Statue making notes negotiable, affected notes executed prior, as well as those after the passing the Act; also, the Statute allowing certain notes to be plead in off-set, only after notice.</p>

THIS was an action on note, as follows : “Clarendon, Nov. 5, 3816* “For value received I promise to pay William M’Connel, one two horse waggon, to be well made and ironed, to be worth sixty dollars, by the IStli day of April next, tobe delivered at my store. “CALEB HALL.” Plea — Noil assumpsit.

ACTION on note of the following tenor ; “Fairfax, June 25, 1815. “For value received, I promise to pay John Wood, forty-five dollars, forty cents’ worth of good, clear white pine lumber, such as floor plank, clapboards, and other clear boards, delivered at some of the saw-mills, in Fairfax, when called on — afso, eighteen thousand good short shingles, by the first of January next, and two thousand feet of good merchantable white pine boards, on demand, all of which are to be…

THIS was an action brought in pursuance of the Act entitled “An Act directing the proceedings against trustees of concealed or absconding debtors.’’ Strong, the principal debtor, pleaded in bar — That at the commencement of the present suit, he was not a concealed or absconding debtor. Demurrer. 1. That the trustee action is a remedy provided for the creditor, extending the right of attachment to property in action, af-well as that in possession, ■ 1 Stat. p. 241. etSeq. 2.

<p>k person claiming damages, for a conversion of his property, is not a creditor within the meaning of the Statute .</p>

<p>ERROR brought to reverse the judgment of Addison County Court.</p> <p>In the original suit, Denison v. Meeker, the declaration stated that Meeker sold Denison a note, payable in cloth, in fayor of one Asa Staples, against Refine Weeks, and warranted the same to be collectable ; it also stated, that when said note became due, a writ of attachment was issued on it, and being duly served and returned, was entered in Court, &c. Judgment recovered for the plaintiff, and execution taken out, and returned, with the officer’s return thereon endorsed, that he could find neither the goods, chattels, or estate of said Weeks, whereon to levy, &c. and had commited his body to Jail, &c.</p> <p>Pica — Non assumpsit.</p> <p>Orí the trial,' in tile County Court, the defendant offered to prove that Denison, before the suit was comtnenced, sold the note to one Barton, who commenced and controlled the suit; that at the time when the suit was commenced, Weeks had more than sufficient personal property to satisfy the debt, which might have been attached, and which Meeker offered to turn out, and requested Barton to take, but which Barton refused to do. This evidence was rejected, and this writ of error is founded on a bill of exceptions to the decision of the County Court.</p> <p>Üpon the above facts, the plaintiff in error, contended :</p> <p>That the rejection of such testimony was erroneous, because the testimony proved the fact warranted, to wit, that the note was collectable.</p>