Volume 1 — D. Chipman's Vermont Reports

THIS was an action on a bond assigned by the Sheriff of Windsor County to the plaintiff, conditioned, that Joel Ely, then a prisoner in the common gaol in said Windsor, on execution in favor of the plaintiff, should not depart the liberties of said prison, &c. (in common form.) Breach assigned, that the said Joel did depart, contrary to the condition; whereupon, &c. pleaded in bar, in substance, that after the execution of said bond, viz. on the 29th day of June, 1789, the…

THIS was an action of ejectment for lands in Weathersfield. It was objected, that the plaintiff had proved a title to no more than three fourths of the lands in question; that as he had demanded the whole, he had failed in his proof.

<p>fn an action Fop an escape on mesne process, the plaimiff is entitled to the amount of his debt, if it appear that his debtor has absconded and is insolvent; but before the Court will render judgment on the verdict, plaintiff must enter into a rule, that defendant may make use of his name in recovering the debt to his own use; defendant indemnifying plaintiff from cost.</p>

THIS was a bill in equity, setting forth tliat in the year of our Lord 1752, W. Williams by virtue of a deed duly executed by Coates the original proprietor, was seized in fee of Right No. 1, in Halifax, in the State of Vermont. That in the same year, the said W. Williams, by deed under his hand and seal duly executed, conveyed Right No. 1 aforesaid, to H. Morrison, now deceased.

<p>A party to a suit cannot be admitted as a witness.</p> <p>Monies expended by the overseers of the poor for the support of a pauper, cannot be recovered of such pauper, without a special contract for repayment.</p>

THE plaintiff declared as assignee of the Sheriff of Windham, on a bond given to the Sheriff by the defendant in the penalty of ¿€200, that if one Joseph Bullen, then a prisoner confined for the plaintiff’s debt, should behave as a good orderly prisoner ought to behave, and should pay to the gaoler one shilling and six pence per day for his victualling, and pay the gaoler’s fees, and not depart said prison without the leave and liberty of the Sheriff, then, &c. pleaded three…

<p>If A. convey land to B., and afterwards convey the same land to C , B being présent witnessing the deed and receiving a part of the consideration, C will hold the land against B.</p>

<p>EJECTMENT for lands in Weathersfield, originally granted to H. Wentworth. Wentworth conveyed to G. Alexander 9th April, 1767 — Alexander to Ludlow, 6th June, 1767. Wentworth’s deed to Alexander, proved and recorded, May 12, 1787, and also the deed to Ludlow as appeared in evidence on the part of the plaintiff.</p> <p>On the part of the defendant, a deed was produced from Went-worth'to Bean, dated 28th Dec. 1780, acknowledged and recorded soon after. 2. A deed from Bean to Gill and others, dated Dec. 28,1781, acknowledged and recorded.</p> <p>It was proved on the part of the plaintiff, that Bean and the purchasers under him, had some time before Bean’s purchase from Wentworth, full and repeated notice of Ludlow’s title from Went-worth through Alexander. It was insisted, that by the statute of this State, the legal title was in the vendees of Bean, as his deed was first recorded.</p>

THIS was an action on a Sheriff’s bond for liberty of the prison, and assigned to the plaintiff, the creditor. Plea — Duress of imprisonment and traverse. The substance of the evidence was, that the plaintiff had recovered a judgment against Hovey, for £l7 — took out execution and delivered it to Grant, Constable of Charlotte, who took Hovey’s cat-tie, posted and delivered them on receipt to Strong, who left them in Hovey’s custody.

ACTION on the case, for that on the 24th day of May, 1774, one I. Parker made his note to Risley, for the sum of ¿£53,12s. 2d-payable in beef, pork, &c. That afterwards, to wit, on the same 24th day of May, the said Risley did by his endorsement on the said note, order the said I. Parker, for value received, to pay to the plaintiff, the said sum of ¿£53,12s. 2d. &c. in due form.

<p>Grants of land iu this State by the Governor of New-Hampshire, while this territory was within that Province, are in their construction and operation Royal Grants, and on a surrender of such Grant, the King was in of his former right, and might, at his pleasure, Grant the same lands again, and such second Grant, wonld be valid.</p> <p>A surrender of a New-Hampshire Charter to the Governor of New York, after this territory was annexed to that Province, enabled him to re-grant the same lands, and such Grant made in confirmation of the Right under the Nesv Hampshire Charter is valid.</p> <p>Such surrender may be proved by parol. The refcital in such confirmation,- of a surrender of the New-Hampshire Charter, is frima facie evidence of such surrender. A long acquiescence of the New-Hampshire proprietors under the confirmation Grant, will be construed a waiver of the Grant under New-Hampshire and a confirmation of the Grant under New-York.</p>

<p>THIS was an action of assumpsit, on a judgment recovered by Ingersoll, in his life-time, against the defendant, before a Justice of the Peace in the County of Berkshire, in Massachusetts, for the sum of ¿sil, 12s. 8c?. There had been no appearance of the defendant, and judgment was rendered on default, after an adjournment.</p> <p>Plea — Non Assumpsit.</p> <p>In support of the action, the plaintiff’s counsel offered in evidence, a copy of the judgment, certified by the Justice, before whom the judgment had been recovered.</p> <p>objected to the evidence, for that, the paper offered was no otherwise authenticated, than by the signature of D. Justice of the Peace — was not under seal — that the. Court could not know D. to be a Justice of the'Peace. To prove that D. was a Justice of the Peace, there should have been a certificate of the Governor of the State of Massachusetts.</p> <p>Records of judgments, rendered by Justices of the Peace, in the other States of the Union, certified by the Justice who rendered the judgment, have ever been admitted by this Court, without any other certificate or proof whatever. ■ It has become a settled practice, and as no inconvenience has resulted from it, it ought not to be shaken.</p> <p>Depositions, and the acknowledgements of deeds, have in like manner, been admitted, without any other certificate or proof, than the certificate of the magistrate taking them, and as the certificate of the magistrate has, in reason, the same weight in all these cases— the analogy of the law is preserved. It cannot be said that the act of Congress, providing for the authentication of Records, &c. embraces this case, a Justice of the Peace having no clerk or seal of his Court. There is no reason, therefore, why a practice, previously settled, should be disturbed by that act.</p>

<p>A Sheriff or other officer has no legal authority to command assistance to keep & prisoner, wantonly and from mere caprice.</p> <p>The acts of a Deputy Sheriff, are, in law, the acts of the Sheüff; and tie alone can sue or he sued for any thing done in the execution of his office.</p>

THIS was an action of debt on a bond with the following condition : — “ Whereas the said Hyde has sold and conveyed to the said Campbell, the Right of D, Hoyt, in the two Heroes,, if the said Hyde, shall within five months from date, put and establish the said Campbell, in possession of said Right, the said hond to be void, &c.” The defendant pleaded in bar, that after making the said writing obligatory, to wit, on-, it was agreed, by and between the said Campbell and the…

THIS was an action of trespass, in which the plaintiff declared, that on the 20th of March, 1795, at Charlotte, the defendant with force, &c. took and drove away, out of the possession of the plaintiff, a certain heifer the property of the plaintiff, &c. Plea-Not guilty.

THIS was an action of assumpsit on note, or written instrument, dated February, 1791, in which Coit acknowledged the receipt of ¿£“185, 4s. of Carpenter, which sum he promised to pay to Carpenter on the first of October, 1791, in due-bills payable out of the road tax on the town of-if due-bills to that amount should be allowed by the County Court for the County of Chittenden., And if a sufficient sum should not be allowed of such due-bills, then the remainder in certain…

<p>If a defendant, in an action of Ejectment, prove that he purchased the whole of the lot demanded — went into possession and cleared one acre, more than fifteen years before the commencement of the plaintiff’s action, he will hold the whole lot by the statute of limitations. A possession of a part, under such purchase, being a possession of the whole, is a bar to the action.</p>

THIS was an action of trespass on the case, in which the plaintiff declared, in substance, that on the 26th day of November, 1793, he took out a writ of summons of that date, signed by-, against W. G. of Vergennes, on a note of hand given him by the said W. G. on the 10th day of January, 1794, for the sum of £-, which writ was made returnable to the County Court then next to be hoiden for the County of Chittenden, on the-Monday of February, 1794. — That on the 30th day of…

TillS was an action of covenant, on a deed of bargain and sale, by the defendant to the plaintiff; of five hundred acres of land in the town of Castleton, butted and bounded, for the consideration of £95, dated November 16, 1774.

THIS was an action of indebitatus assumpsit for money had and received. Plea — The General Issue.

<p>THIS was an action of ejectment for fifty acres of land, being the north half of Lot No. 14 in the 2d division of lands in Weybridge.</p> <p>On the trial, the plaintiff proved a title in his lessor to half of the right of Z. H. one of the grantees in the charter of Weybridge. The counsel for plaintiff further stated, that in the'division of the town of Weybridge, the fifty acres in question had been legally voted by the proprietors, to the settler on the half right of Z. H. owned by the lessor of the plaintiff.</p> <p>To prove this, the proprietors’ records were produced, which began with reciting that “ At a meeting legally warned and holden, &c.”</p> <p>The counsel for defendant objected that the meeting of the proprietors was in fact illegal, although it was to be taken, prima fade, from the records, to have been legal, and to impeach the legality of the. meeting, offered to prove, that it had ever been the opinion of the proprietors that the meeting was illegal.</p> <p>By the Court. Records expressing a meeting of proprietors to. have been legally warned and holden, have always been considered in this Court) prima fade evidence of the legality of the meeting— it may be impeached, but this cannot be admitted from slight presumptions and vague opinions, if you would impeach the legality of the meeting in this case, you must point out particularly wherein it was illegal, and support it by legal evidence.</p> <p>It was further contended by the counsel for the defendant, that the law empowering proprietors to vote to settlers their lots, in lieu óf their draughts, required that it should be done only at a meeting-. warned for that purpose; and to entitle the plaintiff to read such vote, it was necessary for him to shew that an article was inserted in the warning, notifying the proprietors that it was intended to pass such VQte.</p> <p>By the Court. Upon this record, the meeting must be taken to have been legally warned, for the purpose of passing "every vote which had been passed at the meeting, unless the contrary be shewn.</p> <p>The counsel for plaintiff then read a vote of the proprietors, to assign one half of Lot No. 14 to the right of Z. D. and the other half to the right of M. J. The next vote was to assign the whole of No. 14 to the right of Z. D. and another vote to assign No. 42 to the right of M. J. A survey of No. 14 was then read. This Lot, in a.former attempt at a division of the town of Wey bridge, had-been drawn to the right of Z. D.</p> <p>For the plaintiff, was read in evidence, to prove a division of the town of-Weybridge — 1st, A vote from the proprietors’ records for two divisions ; — the first division to consist of one acre — the second of one hundred acres. — A vote, appointing a committee to make a plan and survey. 2d, An allotment and survey. There was also offered, a paper, purporting to contain minutes of a draught of a division of lands in Weybridge, in which, more than forty rights were minuted, as exempt from the draught. On the back of the paper was written, “ Voted the within proprietors, as settlers.</p> <p> “ A. W. Proprietors’ Cleric,’’ </p> <p>The counsel for plaintiff, further offered parol evidence, to explain, as they .expressed it, and reconcile the records, by shewing that the votej as recorded, assigning half of Lot No. 14 to the right of Z. D. was never, in fact, passed, but was entered by the C<erk through mistake, and to shew that those who were t he owners of the rights voted to settlers, were settlers in fact.</p> <p>The counsel for defendant objected to the paper and minutes offered that they were not authentic; and (o the parol evidence, to supply or vary the record.</p> <p>By the Court. The paper purporting to contain minutes of a draught ought not to be read in evidence, as it does not appear to have been recorded as an act of the proprietors, or from any thing which accompanied it, to contain any matters acted upon at a proprietors’ meeting. The endorsement by A. W. proprietors’ Clerk, was not, under the circumstances, sufficient to warrant such contusion. As to the other point, the Court are of opinion, that parol proof is not admissible to reconcile or explain the record, or to add what was omitted by the proprietors’ Clerk. That if such records might in any way be impeached by parol evidence, (which is not necessary in this case to decide) certainly no addition can be made by parol. The record, on the face of it, must appear to be good and sufficient: if an ambiguity should arise from parol, it might also be explained by parol. It is not admissible to prove that forty rights and more, were voted to the owning settlers, in which case alone the proprietors had power to except from the draft. It would destroy all confidence in such records, were it admitted to curtail and supply them on occasion, from the accidental, and often treacherous recollection of witnesses.</p> <p>On the part of the defendants it was proved, that Clark, one of the defendants, had a good title to half of the right of Z. D. and the right of M. J. in Weybridge.</p>

<p>If jd a caption to a deposition, it be certified that the deponent was cautioned fo testify the truth, the whole truth and* nothing but the truth, yet if the certificate of the oath be, that the deponent was sworn to the truth of the deposition, such deposition cannot be read in evidence.</p>

HALE, the plaintiff in Error, brought his action against Gris-wold on a promissory note, before the County Court in Addison County, at the September term, 1794. The cause was continued, and at March term, 1795, the plaintiff recovered a judgment on a trial by Jury. The defendant reviewed, and the cause was continued to March term, 1796, at which term the plaintiff obtained a judgment by default.

THIS was an action of ejectment for ninety-seven acres of land in Wells, laid to the original right of J. A. 3d. An act was passed by the Legislature in October, 1787? empowering the selectmen of Wells to levy a tax of one penny on each acre of land in Wells, to be collected by the Constable of the town, who was empowered to sell the land of those who should be delinquent in the payment of the tax.

THIS was an action on a covenant of warranty, in a deed of conveyance, from the defendant to the intestate, in his life time.

<p>¡í a creditor agree to receive more than legal interest for tflfe forbearance of au antecedent debt, and such illegal interest be included in au obligation given on a settlement oí such debt, such obligation is void, it being for a loan of money, within the statute.</p>

<p>THIS was an action of trespass with force and arms, for that, at -, on the l§th day of January, 1794, the defendants, with force and" arms, took and drove away and converted to their own use, a yoke of oxen and a heifer, the property of the plaintiff, of the value of--</p> <p>Plea — Not Guilty.</p> <p>stated that in the year 1790, Timothy Pearl, one of the defendants, gave his promissory note to W. Goodrich for ¿é‘15, which note had been sold and endorsed by William Goodrich, and had through Several hands, come bona fide to Rich” ards the plaintiff. — That the note being endorsed to the plaintiff, and the equitable property in him, he brought an action against Timothy Pearl, in the name of William Goodrich, as the note was not negotiable. — That j udgmcnt was recovered in that action against Timothy Pearl, who well knew that the note was the property of the plaintiff. — That the plaintiff took out execution on that judgment, and caused it to be levied, by a proper officer, on the aforesaid oxen and heifer, then the property of the said Timothy Pearl.— That the property was thereupon legally appraised to satisfy the execud°nj and delivered to the plaintiff, who had a right to receive them. — That Timothy Pearl took out two writs of attachment against William Goodrich — one in his own name, and one in the name of A. Mansfield, and delivered them to Joseph Phelps, the other defendant, who was then a Constable, and caused the oxen and heifer to be taken from the plaintiff, as the property of William Goodrich.</p> <p>The sale and endorsement of the note in blank by William Good-, rich to W. C. was proved, and that it came, bona fide, and for a valuable consideration, to the plaintiff, and that the plaintiff had notified Timothy Pearl, who had proposed several modes of settling the demand with the plaintiff.</p> <p>was produced to prove the levy of the execution on the oxen and heifer, and the execution was also offered in evidence.</p> <p>objected that the execution alone was not sufficient evidence, and ought not to be read, as it could not appear from the execution alone, that it was issued on a judgment obtained on the note in question. — That to entitle the plaintiff to read the execution in evidence, it was necessary that he should shew the record of the judgment, which might connect the note and execution.</p>

THIS was an action on the case. The plaintiff stated in his declaration, that the defendant had sold and conveyed to the plaintiff, by deed dated the-day of-, a certain lot of land in the South Hero, being Lot No.-laid to the original right of A. B. containing sixty acres, which deed contained a covenant of warran-' ty. — That afterwards, Stephen Pearl, before the County Court-for the County of Chittenden at the term of said Court holden on the -day of- — , recovered a…

THE declaration and pleadings in this action were as follows: Ira Allen, of Coichester, was summoned to answer, as well to James Everts of Georgia, one of the land~owuers of said Georgia, as the treasurer of said town who prosecutes, &c. for this, to wit, that the defendant render unto the said James and the said treasurer, £600, which he owes and unjustly detains for this, to wit, that on the 15th day of November, in the year of our Lord 1791, he the said James, at the…

THÍ3 was 'an indictment for perjury. Francis Goodrich had brought an action on book against George Bishop before Justice Osgood; on the trial of which, Bishop produced his book, containing certain charges against Goodrich, the plaintiff in the action, and thereupon the interrogatory oath was administered by the Justice to Bishop, and he swore fully and circumstantially to the articles charged oh his book, when the Justice’s Court was adjourned to a future day.

<p>THIS action was brought to this Court by appeal from a judgment rendered by the County Court in March last,' entered by the plaintiff to the present adjourned term of this Court.</p> <p>The defendant moved that the action be dismissed, for that at said County, Court, after judgment for the plaintiff in said action, the defendants moved for and were admitted to an appeal to the next stated term of the Supreme Court, to be holden at Rutland on the first Tuesday after the fourth Tuesday of January next. After which th© plaintiff moved for and was admitted to an appeal to the present adjourned term of this Court.</p> <p>It was insisted on the part of the defendant, that although either party may appeal from a judgment rendered by a County Court, to the next stated or adjourned term of the Supreme Court at his opiion, yet if one party first enter an appeal to the next stated terna of the Supreme Court, for instance, if the other party would also enter an appeal, he must enter it to the stated term also. That the right of option had attached to the party first appealing, and an appeal ought not to be allowed to the other party to the prejudice of that right, which would be the case if the last appeal might be taken to a different term.</p> <p>The defendant’s counsel also insisted, that an appeal granted to either party, removes the cause from the County Court, so that that Court have no further power over it — not even to grant an appeal to the other party.</p> <p>On the part of the plaintiff it was contended, that the right Of appeal is given to both parties. That there can be no real interference of rights, if both parties enter an appeal, one to the stated term and the other to an adjourned term. Both appeals are to the same tribunal; and the principle thing intended by giving the right of appeal is, that either party aggrieved at a judgment of the County Court may have a right to a trial before the Supreme Court.</p> <p>The practice once settled, would occasion no surprise to either party — each would know the other’s right of appeal, and would take notice of the exercise of that right.</p> <p>Hail, J. thought that the appeal could not be sustained in this case.</p>

<p>THIS was an action of ejectment for Lot No. 38, laid to the right of Andrew Wiggins in Hubbardton.</p> <p>Plea — The General Issue.</p> <p>It appeared on trial that in October, 1787, the Legislature passed an act granting a tax of two cents on each acre of land in Hubbard-ton, for the purpose of making and repairing roads in said town. By the act granting the tax, J. Sellock, D. Hiecok and J. Whelpley were appointed a committee to lay out the money and superintend the work on the roads, and N. Rumsey was appointed collector of the tax. The act empowered the said Sellock, Hiecok and Whelpley, after the amount of the tax should be expended in labor on the roads, to issue their warrant under their hands to the said collector, to collect of the delinquent proprietors of said Hubbardton, respectively, what should remain unpaid of the tax ; and empowered the said N. Rumsey, under such warrant, to sell so much of the several delinquent land-owners’ lands, as would be sufficient to raise the money remaining unpaid by them respectively on said tax.</p> <p>A warrant was offered in evidence to said Rumsey collector of said tax, signed by two only of said committee, J. Sellock and D'. Hiecok. J. Whelpley, it was said, refused to act on account of some objection to the proceedings at the time.</p> <p>The counsel for the defendant took exceptions to the evidence, on the ground that the authority to issue the warrant having been given to three without any saving or exception, all must join to render the warrant legal. Two cannot, without the third, legally execute the power. It is like a private authority given to a number of persons to do a certain act, in which case the power is joint, and all must join, unless there be a special provision in the appointment, that a number less than the whole may act. 1 Bac. Ab. 200 — 201.</p> <p>The counsel for the plaintiff contended, that the committee in this case resemble a corporation, or an office of a corporation exercised by several persons, as selectmen of a town, in both which cases, the acts of a majority are valid.</p> <p>They further contended, that J. Sellock, D. Hiecok and J. Whelpley having been appointed a commjttee by the Legislature, for the purposes-mentioned in the act, their power is of the same nature as that of a committee appointed to report on particular measures during the session of the Legislature — a majority of whom were always deemed sufficient to act.</p> <p>So where two persons are deputed to make an arrest,’ one may execute the precept. 1 Strange 117. King against Roe.</p>

THIS was an information against Johnson, charging that the said Johnson on the &emdash; day of , was a common cheat, not following any lawful business. That he did by divers false preten.. ces, and divers false tokens, cheat and defraud the good people oi this State. To this information there was a demurrer.

THIS was an action of debt on bond in the penal sum of ¿£150., dated November 2, 1792. On Oyer the condition was set forth in substance as follows: — Whereas certain matters of dispute and controversy have existed between us, we have referred them to the arbitrament and final determination of A. B. and C. to be heard at --— on the third Tuesday of July next, or such other day as the arbitrators shall appoint.

<p>THE writ of Audita Querela in this case, which was originally brought before the County Court, was signed by Samuel Williams, Ch. J. and S. Safford Assist. J. of the County Court. The recog" nizance was certified as taken before S. Williams only, and was in fact taken in the absence of the other Judge.*</p> <p>This matter was pleaded in abatement in the Court below, and the Court rendered judgment that the writ abate. The plaintiff entered an 'appeal, and in this Court the defendant relied on the same plea.</p> <p>The allowing of this writ jby two Judges of the County Court is by statute; and it must be allowed in the manner pointed out by statute, or it is void.</p> <p>The statute requires that writs of Audita Querela, returnable before the County Court, shall be allowed and signed by two Judges of the County Court, and that surety shall be taken by the Judges allowing the writ. Here two Judges have signed the writ, and but one Judge took the recognizance, as appears by a certificate of the recognizance annexed. He cited the case — Treasurer of the State against Downer — in this Court as in point. The case was this:— A. had been ordered by a Justice of the Peace, to find sureties for his appearance before the Supreme Court on a complaint for-. For want of sureties he was committed to the common gaol in Rut-land. — He was afterwards let to bail by a Justice of the Peace, who took a recognizance of the said A. as principal, and Downer as surety, for the appearance of the said A. before the Supreme Court-A. made default, and a suit was brought against Downer on the recognizance. The power of bailing in such case is by statute given to a Judge of the Supreme or County Court. The Court decided, that as the power of bailing in that case was given by statute, and as it did not authorise a Justice of the Peace to take a recognizance in such case, he had no power to take it, and the recognizance was therefore void. And though it was urged in that case that a Justice of the Peace might as incident to his office take such recognizance, yet the Court decided that he could not, and gave judgment for the defendant.</p> <p>The writ of Audita Querela is a writ of common right; and the Judges have, at common law, power to allow the writ independent of the statute. And as Judges of a Court of Record each has power to take recognizances. The recognizance in this case having been taken by a Judge vested with such power is valid. This differs it from the case, Treasurer against Downer, in which case the recognizance was taken by a Justice of the Peace having no such general power. But if the recognizance was not legally taken, security might have been taken in the Court below, and it may be here taken. — There is therefore no reason why the writ should abate.</p>

THIS was an action of assumpsit on a promissory note given by the defendant to the plaintiff for the sum of £29, dated September 5,1794. Plea — Non Assumpsit. stated in defence, that before the execution of the note, the plaintiff’s daughter had sworn a rape on the defendant’s son, who was under bonds for trial before the Supreme Court. — That an action of trespass had been commenced against the son for the injury.

<p>The levy of an execution on 'real estate is not within the statute to prevent fraudulent speculations and sales of dioses in action, passed the 28th day of October, 1807, and such levy is not rendered void by the possession of a third person holding adversely to the debtor at the time of the levy.</p>

<p>THIS was an action of ejectment for 12 acres of land in the , , . town of Sheldon. Ellithorp, the plaintiff, in the spring of the year 1793, purchased of S. B. Sheldon the North half of Lot No. 51, laid for a 200 acre-Lot in Sheldon, and went into possession, which possession was continued down. One Phelps at the same time agreed with S. B. Sheldon for the North half of the same Lot, and went into possession, and being so in possession, agreed with the plaintiff to divide the Lot with him, by a line drawn from East to West through the centre of the Lot between the North and South lines. The dividing line was accordingly run in the same year, 1793 — and so the plaintiff had always claimed and possessed until some time in the year 1807.</p> <p>Phelps, after having made some improvements on the North half of the Lot, gave up his bargain with Sheldon, and, in the year 1797, Sheldon bargained the same to the defendant, who went into possession, and has since occupied and improved the same, but received no deed of the same until April, 1807, when it having been discovered that said Lot No. 51 contained more than 200 acres by reason of a mistake in the original survey, it being laid 20 rods wider on the South line than on the North line, so that each half as divided in the year 1793 contained more than one hundred acres; but the South part was the largest. And sheldon conveyed to the defendant, Dewing, by metes and bounds, one half of said Lot No. 51, which included the gore of land in dispute, South of the line formerly run for a division. It did not appear that Sheldon ever held a title to the said lot.</p> <p>urged that the defendant might claim the benefit of the statute of limitations from the possession of Phelps in the year 1793, and further that as the plaintiff and defendant both derived their title from the same source, they could not question each other’s title; and certainly if the defendant cannot defend on this principle, neither can the plaintiff recover on the same principle: and having shewn no title to the land in question, is not entitled to recover against the defendant.</p>

<p>THIS was an action for slanderous words Spoken by the defend* ant concerning the plaintiff.</p> <p>Plea — the Genet al Issue, with notice that the defendant would, on the trial, give in evidence the truth of the words alledged in the plaintiff’s declaration to have been spoken by the defendant.</p> <p>The plaintiff having proved the speaking of the words by the defendant as alledged in the declaration,</p> <p>stated that he should defend under the notice agreeably to the statute, by proving that .the words charged to have been spoken by the defendant of and concerning the plaintiff were true, and offered evidence to prove that in an action on Book between the plaintiff and defendant, the plaintiff had sworn to a false account by him produced in that action.</p> <p>objected to the admission of the evidence under the notice. In an action for slanderous words, the truth of the words spoken cannot be given in evidence under the general issue. It must be pleaded specially. The notice allowed by the statute is in the place of a plea in bar; and in such notice the facts relied on by the defendant must be set forth as particularly as in a plea in bar. The plaintiff must have notice of the facts intended to be proved, that he may come prepared to answer them, 1 Term. Rep. 748. Johnson v. Stewart.</p> <p>The notice is with a reference to the words charged to have been spoken sufficiently particular,'the notice is as particular as the declaration.</p>

<p>A person not being a proprietor in a town, cannot be permitted to call in question the legality of a proprietary division of such town ; nor will a proprietor be permitted to do so unless it appear that bis rights have been violated by such division ; nor even in that case, if he shall have submitted to,’and acquiesced in the divisiou made.</p>

<p>THIS was an action of debt on a gaol bond assigned to the plaintiff by the Sheriff of Franklin County; given for the admission of Stephen Kimbal and Jesse Kimbal to the libetries of the prison in St. Albans. The plaintiff declares, that on the 14th day of January, 1811, before Jacob Smith, Justice of the Peace, he, the plaintiff, recovered judgment against Jesse Kimbal and Stephen Kimbal for the sum of ¿£'47 3s. 3d. damages, & for the sum of ¿£2 4s. 7d. costs. That on the same day he took out an execution on that judgment, and’caused the said Jesse and Stephen to be thereon committed to the common gaol in St. Albans. That for the admission of the said Jesse and Stephen to the liberties of the said prison, the defendants executed the bond to the Sheriff, conditioned in common form. — That afterwards, on the 20th day of February, 1811, Jesse Kimbal escaped from the liberties thereof without having paid said debt, &c. — Whereby the said Sheriff became liable, &c. — And afterwards, on the 14th day of September, 1811, the Sheriff assigned the bond to the plaintiff, concluding in the common form. To this there was a plea in bar by the defendants. Admitting the judgment, execution, commitment, execution and assignment of the bond, they say that, after the making of the said writing obligatory, and while the said Stephen Kimbal was within the liberties of said prison, on the execution aforesaid, without having committed any escape therefrom, to wit, on the 22d day of February, 1811, the said Nathan Bailey did discharge the said Stephen Kimbal from his said imprisonment; and directed the Sheriff and keeper of said prison to discharge and set at liberty the said Stephen from his said imprisonhient. By reason whereof, and for no other cause, the said Stephen did depart from the said prison and the liberties thereof. To which plea there was a demurrer and joinder.</p> <p>It stands admitted by the plea, that Jesse Kimbal committed an escape an the 20th day of February, 1811, and that,Stephen Kimbal wasnot discharged by the plaintiff until the 22d day of the same February. By the escape of Jesse Kimbal, the bond became forfeited as to all the signers, and therefore it became immaterial whether Stephen continued within the liberties, committed an escape, or was permitted by the plaintiff to go at large.</p> <p>It is not conceded that Jesse Kimbal escaped before the discharge of Stephen. The time of the escape alledged in the declaration is immaterial. The allegation in the declaration relative to the escape, would have been supported by proof of the escape on any day between the execution and assignment of the bond. No issue could have been taken on the day of the escape. Be that as it may, the discharge of Stephen Kimbal, is a discharge of all the signers of the bond — it is a discharge of the debt. To maintain this action, there must appear a subsisting debt. But it appears that Stephen Kimbal has been discharged from the debt; and in this case, a discharge of one is a discharge of all.</p>

<p>a plea in bar to a scirefacias against bail on mesne process, the defendant may avail hhsnell of a release by the plaintiff of his debt against the principa', or a release to himself as bail; but cannot plead in bar; that the plaintiff af. firmed to him that the debt against the printip~ wan settled, as a release or discharge; and can avail himself of such affirmation only by pleading that it was ma4 fraudulently, and with intent to charm him wrongfully with the debt of the principal, and that he was thereby prevented from securing the principal in discharge of himself as bail.</p>

<p>THIS was an action of general indebitatus assumpsit, f#r money had and received. At the trial a verdict was taken for the plaintiff, subject to the opinion of the Court on the following case.</p> <p>On the 28th day of April, 1808, John Stoddard, for the purpose of borrowing money of the Vermont State Bank, deposited a note of that date signed by himself principal, and Zerah Willoughby and Newton Hays sureties, by which they jointly and severally promised to pay said Bank, sixty days after date, $250; which said note was discounted; on which Stoddard received from the Bank the amount in money on his own account and to his own use. After-wards, on the 8th day of June, 1808, the said Stoddard wishing to borrow more money of the Bank, deposited in the Bank another note, signed by himself principal, and Zerah Willoughby and David Stevens sureties, by which theypromised to pay said Bank the sum of $650, sixty days from date. The money on this note was also received by Stoddard on his own account and to his own use. ^Afterwards Stoddard paid to the Bank $650 on the two notes, leaving a balance due the Bank on said notes; but through a mistake, both of said notes were given up to Stoddard, and it was agreed by the parties that if on the foregoing facts, the Court should be of opinion that the plaintiff is entitled to recover. — Judgment to be entered on the verdict, otherwise the verdict to be set aside, and the plaintiff to become nonsuit.</p>

<p>There are eases where, from the fraud practised by the reller of property, the purchaser, at isis option, may rescind, and, by an action of indebitaius a,sump,i€, recover back the purchase money; or by an action of deceit, os some other proper action, cecover his damages; hut can in so casemaintaia an action of iadebilaius asssnnpsi~ for the consideration paid, without a Frevious offer to the teller to rescind, and a demand of the sum paid for the property.</p>

THIS- was ail action of aésunipsit. The declaration contained a Count on a special promise by the defendant, to deliver to the plaintiff seventy-two spars, in consideration of seventy-two spars which the plaintiff had delivered to the defendant; and a count for goods, wares and merchandise' sold and delivered. Plea — The General Issue.

THIS was an action against the defendant as Constable of the town of Enosburgh, for not making a return of a writ of attachment.

JOHN Curtis, 2d. was on the 12th day of March, 1810, appointed pirst Constable ancj Collector of the town of St. Albans, and for the faithful performance of the duties of that office, and to indemnify the town, he and the two other defendants, John Nason and Jehial Holdridge, executed a bond to the Selectmen, in the penal sum of one thousand dollars, on which bond this action is brought.

THIS was an indictment found in this Court, charging the respondent, with having put in more than one vote for one person in the same election to one office, (representative) against the seventh section of the act, directing the mode of election of the Governor, lieutenant Governor, Treasurer of the State, Councillors and Representatives.

THIS was an action against Staniford, Sheriff, for not paying over the money which he had collected on an execution in favor of Zacheus Peaslee, the intestate, against Stephen Moore. The declaration stated, in substance, that the intestate recovered judgment against Stephen Moore, for the sum of fifty seven dollars.

<p>THIS was an action of ejectment, for a lot of land in Milton.</p> <p>Plea — the general issue.</p> <p>On trial the plaintiff offered in evidence, a- deed purporting to have been executed by one Barkley, of Poughkeepsie, in Dutchess County, in the State of New-York. The deed was not acknowledged by the grantor, but had been proved before a judge of the Supreme Court in this State, by one of the subscribing witnesses. The certificate of the judge, stated the proof to have been made, but stated no reason, why the personal acknowledgement of the grantor had been dispensed with, or the ground on which the judge, admitted the proof.</p> <p>for the defendant objected to the reading of the deed as evidence, on the ground that the statute regulating conveyances had provided as a general rule that every deed be authenticated by a personal acknowledgement of the grantor, before a magistrate.— That the statute provided for taking the proof of deeds in certain special cases only, as exceptions to the general rule. — That proof of a deed therefore, could not be taken in any and every case asa matter of course; but in those cases only, which are by the statute, excepted from the general rule; and that it must appear from the certificate of the proof, that the case came within the exception of the statute, and cited 6th section of the act, for authenticating conveyances, 1 vol. comp¡Ied*Laws, 190; and section 13, 195.</p> <p>replied. — That the certificate in this case, was made in the usujl form. — That he had never known a judge taking the proof of a deed, certify the reason for taking the proof.</p>

THIS was an action of ejectment for lot number 37, iii|he third division of lands in Milton, laid to the original right of J..T• one of the grantees in the charter of Milton. having shewn a good title in the plaintiffs to the said right of J. T, in the town of Milton, offered in evi- . dence, an office copy of a deed from a third preson to the defendant of the same lot, as laid to the same right; and contended that this rendered it unnecessary for the plaintiff to produce…

<p>If B. hire a Sloop, and take passengers on board, such passengers are not liable to the owner of the Sloop, for the loss of the Sloop, or for any injury done to it from any waut of skill or negligence of B.</p>

<p>IN this case a deposition was offered by the defendant to which the plaintiff took an exception — that the justice taking the deposisition had certified as a reason why the opposite party was not notified of the taking of the deposition, that he resided more than twenty miles from the place of caption. Whereas the statute requires that the opposite party shall be notified if living within thirty miles from the place of caption.</p>

<p>in aQ action by the assignee of a gaol bond against A. as principal, and B. as s«r«iy, the defendants may plead a separate demand in favor of A. the principal? in off-set to the plaintiffs demand.</p>

<p>was a suit in Chancery. The bill stated in substance^ that on the first day of April 1810, the Selectmen and Trustees of schools of the town of Charlotte, by indenture of that date, demised to Nehemiah Lowrey and his assigns, a lot of land in the town of Charlotte, containing ninety acres, for the term of nine hundred and ninety nine years, under a rent of $16,05 cents.to be paid annually, (setting out the indenture at length ) By virtue of which demise, the said Nehemiah Lowrey, entered and was possessed of said lot. That afterwards, and before the first day of October, 1807, (the time not being specified^) the said Nehemiah Lowrey, as» signed to Israel B. Perry, of Charlotte, the said indenture of lease for the remainder of the term. By virtue of which said lease, Israel B. Perry entered, and was possessed of said premises, for the residue of said term. That being so possessed, the said Israel B. Perry, on the first day of October, 1807, applied to the plaintiff for the loan of a large sum of money; and proposed to secure the payment thereof to the plaintiff, by an assignment of said lease; (so it is expressed in the bill,) that, on this inducement, the plaintiff did loan to the said Perry, the sum of $670,50 cents, for which he took the said Perry’s promissory note of that date, to be paid at the end of three years, with interest. And at the same time the said Perry promised the plaintiff, to secure the payment of the sum of money, contained in said note with interest, to assign to the plaintiff all his ri^ht and interest in said lease, by virtue of his assignment from Nehemiah Lowrey, on the plaintiff’s promising, to deliver up.said lease and assignment to the said Perry, on the payment of the said note of hand. Andón failure of payment at the day, to wit, the first day of October, 1810, the said Perry, to deliver to the plaintiff the quiet and peaceable possession of the premises, contained in said lease. That on the first day of October, 1810, the said Perry, having never paid the money contained in said note, or any part thereof, but having wholly néglected and refused, although often requested ; the plaintiff, then and there, to wit, at Charlotte aforesaid, demanded of said Perry to complete said assignment, and to deliver posseession of the premises to the plaintiff; or to pay the said sum of money contained in said promissory note. That in the month of February, 1811, the said Perry died intestate; and the defendants were duly appointed administrators on his estate; that they had represented said estate insolvent. That since the death of the said Perry, and since the defendants were appointed administrators, as aforesaid, the plaintiff had, at divers times, demanded of them to complete said assignment, and deliver possession of the premises to the plaintiff; or to pay the principal and interest due on said note. And that they had neglected and refused. And pray that the defendants as administrators of said Perry, may be decreed to pay to the plaintiff the principal and interest due, and to grow due, on the said note, by a certain day to be limited by the Court, or, in default thereof, to complete said assignment, and deliver possession of the premises to the plaintiff; and, that all the heirs and creditors of said estate be foreclosed.</p> <p>The defendant pleaded in bar, the statute regulating conveyances, and for the prevention of frauds therein; that there was no agreement in writing, &c. And answered that the estate of said Perry was insolvent, and that they are ready to pay to the plaintiff his dividend on said note, whenever the same shall be' declared. But the defendants made no answer relative to said agreement.</p> <p>took exceptions to the plea, and contended that the plea ought not to be allowed. That the same practice and principles will preval here in questions arising under the clause of the statute which the defendants have pleaded, which have been adopted under a similar clause of the British statute of frauds and perjuries. The rule there is, that, if a defendant in his answer, confess the agreement, though not in writing, the Court hold the agreement, as taken out of the statute, by the confession of the defendant, and decree a performance. If a defendant, in his answer, deny the agreement, the plaintiff cannot prove it by parol. But the plantiff has a right to an answer from the defendant, in relation to the agreement; he must either confess- or deny it. It is a necessary consequence of an established rule, that whatever in conscience affords a title to the plaintiff, the defendant cannot be exempted from disclosing. It is a,right of which the plaintiff eannot be deprived by plea. But, on another ground, the plea ought not to be allowed : this is a case of part performance, and cases of part performance, have never been considered as within the statute.</p> <p>— The statute may be pleaded in bar both of .the discovery and the relief; if so, it is unnecessary to answer to the agreement. There are exceptions, indeed to this rule, in cases where part performance is clearly alledged, or fraud charged in the bill; but in this bill there is nothing charged which amounts to fraud or to a part performance. Many cases were cited by the counsel, which as far as they were thought to have any > bearing on the points decided, are examined in the opinion of the Court, delivered by</p>

<p>On the admission of a prisoner to the liberties of a prison, who is confined under process from a court of the United States, the bond must be taken to the marshal of the district $ if taken to the Sheriff of the county, it is, void, and no ac> tion can be maintained upon it.</p>

THiS was an actiosl against the defendant, former Sheriff of Addison county, for taking insufficient bail on mesne process, at the suit of the present plaintiff, against ~M. Hull. Plea-the general issue.

<p>A deposition taken in another State, cannot be admitted, unless it appear lhat the magisliate before whom it was taken, was authorized to take depositions, by the laws of the State where it was taken.</p>

THIS was an action of ejectment for fourteen acres of land in the town of Panton, described as part of the Governor’s Right. Plea — the general issue.

<p>THIS was an action of ejectment for a small tract of land, on the west side, of Otter Creek, in the village of Middlebury, described by metes and bounds.</p> <p>Plea — the general issue.</p> <p>It appeared in evidence, that Appleton Foot, being the owner of a larger tract of land, including the premises, had, in the year 1798, conveyed to Joseph Cook and Anthony Rhodes, a small tract, fifty feet square, with a right of way thus described in the conveyance. “ With a right of way from the highway to the easterly end of the small tract, fifty feet square, between the house of the grantor (now' Leonards) and the coal house bank, sufficient to pass and repass with carriages, &c. The plaintiff, by several mesne conveyances, had' become the owner of the small tract, with the right of way thereto. And the defendant, had, in like manner, become the own er of the larger tract, formerly owned by Appleton Foot, subject to the plaintiff’s right of way. The defendant, by erecting buildings encroached upon the passage, so as not to leave sufficient room for passing. The land demanded by the plaintiff, was that, over which he had this right of way. Upon this evidence the Court expressed an opinion, that an ejectment was not the proper remedy in this case, to recover an easement — a mere right of way.</p>

THIS was an action of indebitatus assumpsit, for monies paid, laid out and expended by the town of Middlebury, for the support of Clarrissa Pier, a pauper, who was taken sick in Middlebury, and whose legal settlement was in the town of Hubbardton. ' Plea — the general issue. stated, that the pauper, whose legal settlement was in the town of Hubbardton, being a hired servant in Middlebury, was there taken sick about the first day of November, 1811.

<p>The action of general indebitatus assumpsit^ is an equitable action, and the plaintiff can, in no case, recover more than he is in equity and good conscience entitled to.</p>

THIS was an action of as nzpszt, on a special contract, for the sale by the plaintiffs, to the defendant, of three shares in their Company Stock.

THIS was an action of assuni~psit, on a special contract.~ The declaration set up a contract to deliver a certain quantity of cloth to the plaintiff, generally~ without mentioning any place of payment. On trial upon the general issue, the plaintiff produced a written contract, by which the defendant had, engaged to deliver to the plaintiff, the quantity of cloth stated in the declaration, at the defendants Factory in Poultney.

THIS was an action of assumpsit. / The declaration contained two counts; one on a promissory note, and one for money lent.

<p>This was an action of ejectment, for a farm of land in Shrewsbury, containing one hundred and fifty acres.</p> <p>Benedict Webber disclaimed for the whole, William Webber pleaded the general issue.</p> <p>The following evidence was produced on the part of the plaintiff. A deed from Benedict Webber, the father, one of the defendants, to William Webber, the son, the other defendant, and a deed from William Webber to the plaintiff; both deeds describing the premises as in the declaration.</p> <p>It was proved that Benedict Webber, the father from the time he conveyed the farm to his son in May 1789, had lived some times with his son on the premises, and was maintained by him ; and some part of the time lived elsewhere, with his other children. That at the time this action was commenced, he was living with his son William Webber, on the premises; that he had no family, and had no concern with the occupation or management of the farm.</p> <p>The Court held that this was not a sufficient possession in Benedict Webber, who had disclaimed, to entitle the plaintiff to costs against him, but that he should recover his costs against the plaintiff.</p> <p>Benedict Webber, that at the time the deed was given by the defendant to the plaintiff, there was an agreement not reduced to writing, that the deed should be considered as a security for a certain sum of money loaned by the plaintiff to the defendant. The deed was not acknowledged, and if the defendant by a certain day, should procure notes from a certain third person to the plaintiff, for the amount of the sum loaned, the deed was to be delivered up to be cancelled. But if the notes were not procured, the defendant was to acknowledge, the deed, and the plaintiff to execute a bond to the defendant, conditioned tore-convey the premises, on the payment of the money’ so loaned, by a certain day, which day had passed, before the commencement of this action. That the notes not having been procured, the plaintiff had refused to execute the bond as agreed. It was admitted that the money had not been paid by the defendant.</p> <p>objected to this evidence, as it was offered with a view of adding to, and varying a written contract, by parol proof, which would not be permitted at common law; and as a case within the fourth section of the statute regulating conveyances.</p>

.THIS was a motion to dismiss the appeal in this, case, as having been irregularly allowed by the County Court. The ground of the motion was, that the defendant Leonard, after judgment in the County Court of Rutland County in November last, had reviewed the cause to the term, of the County Court to be hob den in June next; and had regularly entered bail to prosecute the review to effect.

CAMPBELL was indicted at the last term of the Court, for an assault and battery. At this terra a motion was filed by the counsel for the respondent, to dismiss the indictment, for that, the Supreme Court have not ociginal jurisdiction of the offence, but appellate jurisdiction only.

THIS was an action of debt on recognisance. The declaration set forth the occasion on which the recogniaance was taken, ~md the eondition.-That Guilford D. Young, the present plaintiff, had commenced an action on a note of hand, against Andrew McFarland.

<p>An action cannot be maintained on a note of hand, which is in the following words:</p> <p>For value received,! promise to pay J. B, sixteen the first day of May next, with interest. Parol proof not being admissible, to explain such patent ambiguity ; but the payee must resort to the original contract — treating the note as a nullity.</p>

THE original action was commenced on a bond given to Aruna W. Hide, late Sheriff of Rutland County, by Rodolphus R. Childs, Penuel Childs, and three others.

ON oyer of the probate bond, on which this action was brought, with the condition thereto annexed, the defendant pleaded perform» anee of the conditions, by Aaron Thrall the principal. The prosecutors replied, assigning two breaches of the condition$ the deAndant rejoined, and to the rejoinder there was a demurrer and joinder.

THIS was an action of debt for three hundred dollars, brought on the eleventh section of the act providing for the support of the poor, in which the plaintiff, who sues, as well in his own behalf, as in behalf of the town of Readsborough, declares, that the defendant did,.on the i~tli day of June, 1810, transport into the town of Readsborongh, one Jacob Morse, a poor person, not having a legal settlement in said town, with an intent to make the said town of ~Readsborough,…

THIS was an action of ejectment for a farm ¡of land in Manchesr\ • \ • * . ter. On trial to the jury upon lae general issue, the plaintiff made out an apparent good title on record, and proved that he died, seized of the premises demanded.

THIS was an action of trover for a quantity of boards. On trial at the last term, it appeared, that Vickery had drawn a quantity of logs to Taft’s saw mill, which Taft agreed to saw into boards, and either receive pay for sawing them, or to saw them for the customary share-one half of the boards.-That Taft had sawed the logs, and sold the whole of the boards, and received the pay for them.

HENRY STANLEY brought his action in the County Court, against Amos Potter, 2d on a promissory note, to which the defendant put in the following plea in bar. “ And now the said Amos Potter, 2d by his attornies, Young and Robinson, pleads and says, that the said Henry ought not to have and maintain his said action thereof against him the said Amos, because he says there was no consideration had and received of the said Henry, by - the said Amos, for which the said note,…

<p>Specialties are not negotiable, and no action can he maintained on an instiuraent under seal, in the name of the assignee,</p>

MOSES BENHAM, on the twenty second day of March, 1811, recovered judgment, before a justice of the peace for the County of Bennington, against Moses Sage, for the sum of $45,51 cents, damages, and for the sum of ‡1,60 cents, costs of suit.

<p>THIS was an action brought on the statute, against Sage, for transporting a pauper into the town of Readsborough, with an intent to make the town of Readsborough chargeable with the maintenance of the pauper, to recover the penalty given by statute, one half for the prosecutor, and the other half for the town of Readsborough. ^</p> <p>- On trial to the jury, at the last term, Joseph Hartwell, an inhabitant of Readsborough, was produced as a witness on the part of the plaintiff. The counsel for the defendant, objected to the admission of the witness, on the ground, that the town of Readsborough was entitled to a moiety of the penalty, if recovered, and that Joseph Hartwell, being an inhabitant of Readsborough, was interested in the event of the suit, and therefore an incompetent witness. ' The objection was overruled by the Court, and the plaintiff obtained a verdict, Hartwell being a principal witness on his part. A ¿lotion was made by the counsel for the defendant, for a new trial, on the ground that Hartwell was an incompetent witness, and illegally admitted.</p> <p>The motion was continued to this term, and came on to be heard on the statement of judge Fay, one of tire judges, who tried the cause. He stated the case as above, and added, that, although Hartwell was an inhabitant of Readsborough, yet he was not liable. to be rated, or to pay taxes to said town,</p> <p>contended that Hart-well, being an inhabitant of Readsborough, was an incompetent witness in the case, whether liable to pay taxes in the town or not; that the action, being brought, as well in behalf of the town, as in behalf of Pond, the prosecutor, the town, and consequently, all the inhabitants of the town, are in fact plaintiff’s — parties to the suit, and no party to a suit can be admitted as a witness.</p> <p>A town being a public corporation, the inhabitants, members of the corporation, are competent witnesses, in any matter relating to the town in its public capacity, Swift’s Evidence, 506. But it is unnecessary to decide that question in this case, for it has always been holden at common law, that parishioners, not liable to be taxed for the support ot the poor, were competent witnesses in pauper causes, for or against the parish, of which they were inhabitants. — Gilbert’s Evidence, 243-And in the present case, it appears, that Hartwell, the witness, was not liable to be taxed in the town of Readsborough.</p>

TH1F!~ was an action of assunnpsit on a promise of marriage..The declaration was in commoi~ form, alledging that the promise was made on the first day of December, 1811.

THE original action in this case was on a gaol bond assigned by the Sheriff to the creditor, in which the plaintiff declared, that, by the consideration of the County Court for the County of Bennington, at the term of said Court holden in June, 1810, he recovered judgment against Moses Sage, for the sum of ‡65,63 cents dama, ges, and for the sum of $15,42 cents, costs of suit; that he prayed out an execution on that judgment, by virtue of which, the said Moses Sage, on the…

ON the granting of adminstration, by the judge of Probate for the district of Manchester, to Gilbert Bradley and Ethan Bradley, on the estate of Lemuel Bradley deceased, they,as principals, and Edmond Graves,as surety, executed a bond to the Judge of Probate, in the penal sum of $4000, in the form and with the condition prescribed by statute, bearing date the ninth day of January 1801.

THIS was an action of as'sumpsit, in which, the plaintiff declared, in substance, that, on the nineteenth day of February, 1811, the plaintiff bought of the defendant, and the defendant sold to the plaintiff a certain mare for the sum of one hundred dollars, then and there paid by the plaintiff to the defendant; and that the defendant, on the sale, in consideration thereof promised the plaintiff that said mare was not more than seven years old, and that she was every way…

THIS was an action of ejectment for a farm of land in Dummerston in the County of Windham.

THIS was an action for words. The declaration, after the usual introduction, but without any coíloqium, procedes. “ The defendant did, on the 15th day of/une, 1813, at Townsend aforesaid, with aloud.voice, speak, utter and publish the following false, scandalous and malicious words, of, and concerning the plaintiff, to wit: I have come to see you (meaning the said Amasa) about burning my bark house, (meaning the bark house of the defendant and others, which had then lately…

<p>THIS was an action on a gaol bend, taken by the Sheriff of Windham County, for the liberties of the prison granted to Fisher and Haviland, two of the defendants, who had been committed on an execution, in favor of Esther Allen, the plaintiff, on which occasion Fisher and Haviland, as principals, and the other defendants, as sureties, executed the bond on which the action was brought. Fisher and Haviland escaped, and the Sheriff, thereupon, assigned the bond to Allen the creditor.</p> <p>To the declaration, which is in the common form, the defendants pleaded, that the plaintiff ought not to have or mantain her said action thereof against them the defendants, for that, after the service of the original process, and before the rendition of judgment, on which the execution issued for the 'said sum of $107,46 damages, and $7,59 costs, and on which the said Fisher and Haviland were committed in manner aforesaid; the said Fisher for himself, and the said Haviland, did pay unto the said Esther Allen, the plaintiff, to her complete satisfaction, the full value of the note, for the recovery of which the said process was commenced. On which the said Esther Allen, the said note not being then in her possession, did promise to deliver the said note to the said Haviland, or discharge the same. And the said Fisher and Haviland, placing full confidence in the promise and undertaking of her the said Esther, as aforesaid, did not attend further to defend said action, so commenced on said note; and the judgment aforesaid for the sum of $107,46 damages, and $7,59 costs, was rendered on said note against the said Fisher and Haviland, by default, in manner aforesaid, contrary to the express agreement of the said Esther, after the said note had been paid, and satisfied.</p> <p>To which plea, there was a demurrer and joinder.</p>

THIS was an action of assumjisit, originally commenced before the County Court, By a rule of that Court, the cause was, by consent of parties referred to R. Hatch, J. Dorr and N. Gere. At the time appointed for the reference, N. Gere, one of the Referees, was absent, and the parties, by an agreement in writing, substituted William Wait in the place of N. Gere.

TflIS was a writ of error broughi to this Court, to reverse a judgment, rendered by the County Court, for the County of Windsor, in an action on the case, brought before that Court by Pascal P. Enos, the plaintiff in error, against Israel P. Brown, the defendant in error~~ The record of which judgment brought rnto this Court, is as follows c~israe1 P. Brown of Plymouth, in the County of Windsor is at~ tached to answer to Pascal P. for of woodstock, in the said County of…

THIS was an action on the case, brought by the plaintiff, Ralston against William Strong, formerly Sheriff of Windsor County. The declaration set forth, that the plaintiff, Alexander Ralston, on the 15th day of November, 1810, prayed out a writ of attachrnent in his favor against-- Gove of Montpelier, in the County •of Washington, returnable to the County Court, holden at Woodstock, in, and for the County of Windsor, in March, 1811.

THIS was an action of assumpsit on a certain contract in writing, by which the defendant agreed to take five shares in the stock of the Passumpsick Turnpike Company, and to pay to the- Treasurer 0f company all assessments that should be made on said shares by the Company, to the amount of twenty dollars on each share, an(j nQ more> The declaration set forth that the Company had made several assessments for the purpose of completing their road, stating the amount on the…

<p>THIS was an action of debt on judgment. The defendant pleaded in bar, that the plaintiff, after he had recovered the judgment, took out execution, and caused the defendant to be regularly committed thereon to the common gaol in Danville in the County of Caledonia. The plaintiff replied, that the defendant escaped from said prison, not having paid or satisfied his said debt. The defendant rejoined that he the defendant departed from said prison with the express consent, liberty and direction of David Elkins, Sheriff of said County and keeper of said prison.</p>

AT the term of - this Court, holden in September, 1813, Ebenezer Parker was indicted for uttering, passing and giving in payment, one certain false forged and counterfeit bank note, made in imitation of a one dollar note issued by the Mechanicks’ and Farmers’ Bank in.the Cityof Albany in the State ofNew-York, which Bank then and there was and still is, legally established, by and under the authority of the Legislature of the State of N. York, one of the United Stales of…

<p>The statute laws of any one of the United States, if printed under the authority of such State, may be read in evidence in t he Courts of this State.</p>

THIS was a petition for a new trial, in an action tried at the last term of this Court. On a hearing of the petition, it appeared that Jonathan Barney, the petitioner, had, as assignee of the Sheriff of Washington County, brought an action on a gaol bond executed by Bethuel Goff as principal, and Benjamin Cady as surety.

ASA ALDIS, the present plaintiff, commenced his action before the County Court in September, 1811, against Justin Wells, an absconding or concealed debtor, and summoned Samuel Hull, the present defendant, as his trustee.

THIS was a bill in Chancery in which the Orator stated, in substance, that on the 20th day of May, 1807, the Orator being indebted to Levi Hungerford in the sum of $205, as security therefor, conveyed to the said Hungerford, by his deed of that date, a certain farm of land situate in S wanton in the County of Franklin, containing one hundred acres; and at the same time, the said Levi Hungerford executed a bond to the Orator with a condition, that, if the Orator should, on…

THE Orator in his bill stated, that on the 14th day of May, 1795, William Coit was the lawful owner of Welden’s Island and Ward’s Island in Lake Champlain in the County of Franklin, and on the same day sold, and, by deed, conveyed the said Islands to Jesse Welden, in fee, which deed was never recorded.-That after-wards, on the 11th day of July, 1795, Jesse Welden, in consideration of the sura of £85, sold and conveyed the same to the Orator, by a good deed of conveyance,…

This was a Bill of Review brought to reverse a decree of this Court, made in favour of the administrator of Udney Hay, against the administrator of Zacheus Peaslee.

<p>In Chancery.</p> <p>A I3~11 ~uppkrnontary to a Bill in C~jancery, a Bill of Revivor, Bill of Review, 0" Bill to carry into effect a fo~ mer decree, must be brought in the same Ccnnty where the original suit was brought, and the proceedings are of r ord.</p>

THIS was a scire facias brought on a recognizance entered into before the County Court, by the defendants, on an appeal from a judgment rendered in that Court, August term, 1811, in favour of the plaintiflj David Page, Jr., against J. Johnson, one of the defendants.

THIS was an action of assumpsit on a note. The declaration a Píea case ^01’ to wit, that whereas the defendant, at Middlebury in the County of Addison aforesaid, on the 20th day of December, 1811, did make, execute and deliver to the plaintiff his certain note in writing, commonly called a promissory note, subscribed with the proper hand of him the defendant, in and by which the defendant promised the plaintiff, for value received, to pay him the sum of ,f100 27, at his the…

<p>If a note not negotiable, lie sold and assigned by th.e payee to a thiid person, ond notice of such transfer be given to the maker of tile note, a subsequent payment of the note, to the original payee by the maker, will not avail him, but he will be holden to pay the note to the assignee; and if he be summoned as Trustee of the origin?! payee of the note, a disclosure that such transfer was made and notice given before the service of the process, will discharge him.</p>

ELISHA ASHLEY commenced an action of assumpsit on a promissory note against Theophilus Harrington, in his life time, before Rutland County Court, at November term, 1813, to which action Theophilus Harrington appeared and had a continuance until March term, then next, and afterwards on the-day of December, 1813, deceased; and James Harrington was regularly appointed administrator on his estate : and the cause of action by law surviving, the plaintiff, Ashley, took out a scire…

THIS was a ccire facias brought before the County Court to have execution on a judgment, rendered in the County Court for Rutland County, on the third Monday of November, 1803, for the sum of $125 93 damages and costs.

The following exceptions to the decree of the Court of Probate, taken by the appellants, with the decree of the Court thereon, will shew the points which were decided by the Court in this case: , And now the appellants, in Court by Daniel Chipman their Attorney say, That the said order or decree of said Judge of Probate ordering a distribution of said estate to and among said heirs; and also the order, or decree of said Judge, approving of said division and distribution of…

SAMUEL BROWN, late of Peacham, in the County of Caledonia, died intestate, leaving a widow, the Appellee, but no child, father or mother, or brother or sister of the whole blood; the appellants were brothers and sisters of the half-blood. After the payment of debts there remained a surplus of said estate, both real and personal.

THIS was an action of areun~ps~it ~n a promissory note. Qn trial upon the general 1551w, the defendant offered evidence to prove the following facts: That the note in question, was given in satisfaction of an injury ~one to the plair~tifJ by the circulation of false reports, injurioI~s to the character of the plaintiff's wife, 8~ which the plaintiff alleged,were put in c~rcalation by the defendant, and threat~ e~ied to commence an action against the defendant to recover h3s…

THIS was an action of assumpsit, on a receipt or contract in writing, in the following words:— Received of Thaddeus Tuttle one hundred and fifty dollars, tobe paid in obligations against some good man or men, to be on interest, for Levi Coit when he comes of age, on account of said Tuttle. (Signed) MOSES CATLIN.

<p>If íbeplaiuíjffaml defendant in an action of Ejectment both claim the saíne Lot under the same division, they are both estopped from denying the legality of such division.</p> <p>The Selectmen of the several towns in this Slate, in which there is a Glebe Right, are empowered by statute to lease the. lands belonging to such Right, reserving an annual rent j but have no authority to make auy other conveyance of such lauds. If, therefore, the Selectmen of a town make a conveyance of such Glebe land in fee, such conveyance is void — neither conveying any title to the grantee, nor affecting the rights of the town.</p>

<p>THIS was an action of assumpsit on the following promissory note:—</p> <p>“ I Christopher Webber, as Agent of the Green-Mountain Turnpike Corporation promise to pay J. & J. Proctor the sum of-dollars.</p> <p>(Signed) CHRISTOPHER WEBBER,</p> <p> Agent of the Green-Mountain Turn- </p> <p>pike Corporation,”</p> <p>On trial of this case upon the general issue, the counsel for the defendant objected to the giving of the note in evidence to the Jury, for a variance between the note declared on and the note offered in evidence, which objection was overruled by the Judge.</p> <p>The counsel for the defendant then produced evidence to prove that the note in question was given in satisfaction of a demand in favour of the plaintiffs against the Green-Mountain Turnpike Corporation $■ and that Webber was the agent of said Corporation, authorised and empowered to settle the aforesaid demand of the plaintiffs, and other demands against said Corporation, and requested the Judge to charge the Jury that said Corporation were liable to pay said note, and that the defendant was not liable in law to pay it. The Judge refused so to charge the Jury, but charged them, that an action of assumesit cannot he maintained against a Corporation, and they found a verdict for the plaintiffs.</p> <p>The counsel for the defendant, filed a motion for a new trial, upon which the cause came on to be heard the present term.</p> <p>This is an action on a note charging the defendant in his individual capacity. The defence set up is, that the defendant gave the note, as agent of the Green-Mountain Turnpike Corporation — that he gave it for their debt, and declared his agency on the face of the note.</p> <p>The defence arose in two ways — first, on objection to the reading of the note as evidence to the Jury, and we contended that it ought to have been excluded, on either of two grounds — first, it is described as the note of the defendant, and it appears on the face of it to be the note of the Corporation. If the plaintiffs would contend, that the defendant is holden, by reason of his attempting to bind the Corporation when he had no power to do it, they should have framed a declaration according to the fact, and given notice to the defendant, and taken upon themselves the burthen of proving that the defendant defrauded the plaintiffs, by palming upon them the note of the Corporation wrongfully. Secondly — if this mode of declaring on the note can be supported, still, as the note, when produced, prima facie is not the note of the defendant, but of the Corporation, that prima facie appearance should have been done away by proof on the part of the plaintiffs, before the reading of the note.</p> <p>The second shape in which the defence was presented, and to which the defendant was driven by a failure on the first ground, was, by adducing proof that the defendant was the agent of the Corpóration — that the plaintiffs knew it. — That the plaintiffs had sustained damage by the fall of a bridge which the Turnpike Corporation were bound to repair; that the defendant settled these damages by giving the note in question. — That ail such prudential concerns of the Corporation were usually attended to by their agents. — That the directors intrusted this particular business with the defendant Webber, as agent of the Corporation. — That the by-laws of the Corporation confer very unlimited powers upon then-agents. — That this was all a fair transaction, understood alike by all parties. — And there was no pretence that the Turnpike Corporation ever objected to their liability to pay this note. The decision of the Judge, that on this evidence, the plaintiffs were entitled to recover, cannot be supported by law, and if not by law, surely in no way; for this is clearly an attempt by the plaintiffs to charge the defendant in a way that neither he nor the plaintiffs thought o when the note was given. As the plaintiffs, therefore, are seeking strict law, we will produce authorities to shew that they arc not by law entitled to recover.</p> <p>The case Mann v. Chandler, 9 Mass. Rep. 335 was an action on note given by the defendant, as Treasurer of the Dorchester Turnpike Company — his capacity being, as in the present case, stated at the beginning and end of the note. But in that case the note was so described in the declaration. In that case, as in the present, it was contended that the defendant was not legally authorised to bind the Corporation, but the Court decided otherwise, not because the charter or by-laws of said Company expressly conferred any such powers, but the Court said “ it cannot be doubted that the Corporation is itself liable — the consideration moved wholly from them. It is very apparent that the plaintiff did not, at the time of receiving the notes, look to the defendant’s personal security. The whole transaction was on behalf of the Corporation. Their property is liable, and the'defendant’s is not.” The same reasoning applies throughout to the present case. We also cite Hodgson v. Dexter, 1 Crunch 345. — Dexter had given the bond under his private seal, but had described himself as secretary at war, and gave the bond for the rent of buildings for the use of government; and, as it was wholly a government concern, the signature and private seal of Dexter were adjudged not to bind him personally. We cite also the case Mackbeath v. Haldimand, 1 T. Rep. 172. — The reasoning of the Court and their decision in this case shew that the plaintiffs cannot maintain the present action against Webber on this note.</p> <p>The defendant by the terms of the note in question, promised as agent, and signed the note as agent of the Green-Mountain Turnpike Corporation, and the question is, whether by this note he bound the Corporation, or himself in his private capacity; if the former, the action is misconceived, and the defendent is entitled to judgment; if the latter, judgment must bo entered on the verdict.</p> <p>It would seem that the defendant, by the very terms of the contract, meant to bind, and did bind himself in his'individual capacity. The expression is, “I, as agent of the Green-Mountain Turnpike Corporation, promise &c.” The promise is made by the party signing the note, and does not purport to bind any one else. The object in using this mode of expression was to make it appear that it was a contract concerning the affairs of the Turnpike Corporation, and against which the Corporation were bound to indemnify the defendant, but still he contracted for and bound himself.</p> <p>An attorney or agent contracting for his principal, must contract in the principal’s name, and must place the principal’s name to the contract, and his seal, if a seal be required; he cannot otherwise kind the principal. Strange, 705.</p> <p>If it appear from the terms of the contract to have been the internf10n of the defendant to binchhimself, or if from a proper construetion of the terms of the note it is his contract, and binds no one else? he is liable on the contract in his individual capacity.</p> <p>It is clear that a person may contract for another — that is, bind himself that another shall perform a certain act, as well by simple contract as by specialty, A. may agree that if B. will credit C. he (A.) will be accountable that C. shall pay. Here the trusting of C, is a good consideration, and where the statute of frauds is not in force, the contract would be binding, though made by parol, and if in writing, would be valid notwithstanding the statute. So here, the acknowledgement of value received, ami especially the discharge executed by the plaintiffs to the Corporation is a sufficient consideration for a promise by a third person.</p> <p>In this case, however, the defendant did not contract that a third person should pay, but that he, as agent, would pay : let him pay as agent, and the plaintiffs will be satisfied.</p> <p>It cannot be seriously contended that this note as such binds the Corporation; it does not purport to be a contract by them, but another promises for them, or, which is the same thing, as their agent — not that.the Corporation shall pay, but that he will pay.</p> <p>It may be doubted whether a Corporation of this kind, as it can act only by its seal, can make a promissory note by which it would be bound as such, notwithstanding the case, Mann v. Chandler, C) Mass, Rep. 335, which will be more particularly noticed hereafter.</p> <p>The agents of a Corporation, can bind them for work and labor, at least on a quantum, meruit, and for materials found on a quantum valebant, and, perhaps, an agreement for a particular price by the agent may be evidence that such price is reasonable. But no case is found, except the case above alluded to, where it is held that a Corporation of this kind is bound by a promissory note or other written contract made by its agents, and not under the seal of the Corporation,</p> <p>Where the seal of the Corporation is affixed by one having a right to affix it, it becomes the deed of the Corporation, and covenant will lie against the Corporation for a breach. So, perhaps a Corporation may be bound by a vote entered of record.</p> <p>It is not easy to perceive why the agents of such Corporation should have power to bind their principal by a promissory note— power to bind them for such things as are necessary, and to the amount of what such necessaries are worth, is 'all that is needful or safe in the hands of such agents. They certainly cannot issue notes on any and every speculating project, which would bind the Corporation. If they can issue notes, why not ever so many, and become at once a banking institution ?</p> <p>To these remarks banking Corporations are an exception, because they are incorporated for the express purpose of issuing notes, and are expressly empowered to issue them.</p> <p>The authorities all shew that in case of instruments under seal, the agent or attorney must act in the name of his principal, and affix the seal of his principal, and if he otherwise execute a sealed instrument, he binds himself, not his principal. To this effect is the case of Wilks and another v. Back, 2 East, 142. Wilks, by virtue oí a power of attorney from his former partner, James Brown, executed a bond of submission of a matter of controversy with Back, and signed the bond in the following manner:</p> <p>“MATTHIAS WILKS, (L. S.)</p> <p>for JAMES BROWN.</p> <p>MATTHIAS WILKS. (L. S.)”</p> <p>And the bond was sealed and delivered by Wilks for himself and his late partner, Brown, but Brown was not present. This was adjudged to be the same thing as if he had said ‘ James Brown, by M. Wilks$’ but it was agreed by all that the attorney must act in tlje name of the principal. And, no doubt the tenor of the bond was, We, M. Wilks and James Brown, acknowledge ourselves bound, &c.’ and in this-case many older cases are cited to the same effect, from Ld. Ray, Strange, &c. — So is the case of Appleton v. Binks, 5 East 148, where one acting for another, and using his own name and seal, was judged to have rende'red himself liable.— So in the case Tippits v. Wather et al. 4 Mass. Rep. 595__The defendants were a committee of the Directors of the Middlesex Turnpike Corporation, and as such entered into a contract with the plaintiff, but they used their own names and seals, and were adjudged personally liable.</p> <p>So is the law also in the case of executors and administrators. Where an executor conveys real estate of the testator, and cavenants in his capacity of executor, and signs as executor, using the expression, ‘ witness my hand and seal,’ he is holden in his private capacity — Barry v. Rush, 1 D. & E. 691. where an administrator suhmkted a matter of controversy to arbitration, and covenanted to abide the award, he was held liable in his individual capacity, and could not plead plena adminisiravit. So the case Sumner administrator v. Williams, 8 Mass. Rep. 196, 207. where the defendants were administrators of Dudley, and had conveyed lands belonging to the estate of the intestate, and covenanted in their capacity of administrators, were held liable in their private capacity by Sewal, J., and Parker, J. — Sedgwick, Justice, contra.</p> <p>There is another class of cases, where agents acting for the government are not held liable, whether they bind their principal or not ; but in all these cases, such agents are excused on the ground of publick policy. In the case of Tippits v. Walker and others Parsons, Justice makes the same remark. Mackbeath v. Haldimand, 1 D. & E. 172. Hodgdon v. Dexter, 1 Cranch 345, 362.</p> <p>It is difficult to conceive what can distinguish a simple contract, such as a promissory note, in this respect, from a sealedinstrument. It is certainly, no more binding on the Corporation or principal when the agent acts without authority; and if not binding on the principal, and a valuable consideration has passed, no matter from whom or to whom, the agent, if he do not bind the principal, binds himself. And it is not found that any such distinction has been taken except in the case referred to of Mann v. Walker, where the defendant gave a note as treasurer of the Dorchester Turnpike Corporation, at the request of the directors of said Corporation, who had directed him to settle by note or otherwise with all persons, to whom the president might give an order for the amount due them. The Court decided that the defendant was not liable, but that the note was good against the Corporation.</p> <p>It will be noticed that no authority was cited in support of this decision; nor does it appear that the case gained the particular attention either of the counsel or the Court. It is therefore believed that this decision is not much to be relied on as an authority, especially as it is not known to be supported by any prior or subsequent case. — Judge Parsons was not then a member of the Court.</p> <p>But it is insisted by the defendant’s counsel, that the Corporation had conferred power on the agent to execute the note in the present case, and to render it binding on the Corporation, and relies on the 5th section of the act of incorporation.</p> <p>This section merely authorises the Corporation to appoint such number of directors or agents to manage the affairs of said Corporation as they may judge proper. But the act no where authorizes the Company to empower their directors or agents to execute promissory notes which shall be binding on the Corporation. The Corporation then could not have conferred any such power on the directors or agents. The terms directors and agents seem to be used in the act as synonymous; but in this case the Corporation appointed directors, and an agent also. If I am correct in the construction given to this section of the act, the Corporation could not appoint both directors and agent; and if they appointed several directors, a majority of them only could act. Had they appointed only one, he might have done the whole business; but having appointed several, one could not act alone.</p> <p>But it is said that the directors requested the defendant, as the agent of the Corporation, to settle the demand of the plaintiffs against the Corporation ; but the directors had no authority to delegate their power to any other person or persons; but in.doing this business it would seem that the defendant was the agent of the directors and not of fhe Corporation.</p> <p>In the case Tippits v. Walker and others, before cited, the defendants were a committee of the directors, and it was decided by the Court that the directors could not delegate any authority to a committee, and, therefore, the committee bound themselves in their private capacity.</p> <p>As the Corporation had in this case both directors and an agent, it may be asked in which was the power of managing the affairs of the Corporation lodged ? — Was it in the directors or agent ? or had each paramount authority ? Was the consent of the directors necessary to the validity of the acts of the agent ? or could he act without or against their directions ? On-the whole, in any view which can be taken .of this case, the Corporation cannot be liable to pay the note in question, and therefore the defendant is liable to pay it.</p>

<p>THIS was an action of assumpsit, brought originally before the County Court, on three several notes of hand — one for $249, one for $175, and one for $30. After a general verdict for the plaintiff, in this Court, upon the issue of non assumpsit, the defendant moved in arrest of judgment, on the ground that the Court has no jurisdiction of the subject matter of the third count of the declara-. tion which is upon the note for thirty dollars — the same being with in the jurisdiction, of a Justice of the Peace.</p>

THIS was a writ of Error, brought to reverse a judgment renderedby The County Court for the County of Chittenden, in favour of the defendants, in an action of trespass, in favour of the plaintiff against the defendants, originally commenced before a Justice of the Peace, and brought to said County Court by appeal.

THIS was an action of Book Account, originally commence6l before the County Court, and came to this Court by appeal. At the last term of this Court the defendant filed a motion to dismiss the action, for want of jurisdiction, for that the action was originally cognizable before a Justice of the Peace, and not before the County Court.

THIS was a writ of Audita Querela, containing the following complaint: — That the said Mayo by the consideration of the County Court holden at Burlington in and for the County of Chittenden, September term, 1820, recovered judgment against the said Hurl-but for the sum of $345 43 damages, and for the sum.of $16 91 costs of suit; upon which judgment the said Mayo took out his-execution dated 1st of December, 1820, and on the 27th day of the same December, extended the same on…

THIS was a Writ of Error brought to reverse a judgment of the County Court for the County of Chittenden, rendered in favour of George Robinson plaintiff below v. James Miner defendant in an action of assumpsit, He cited Chip. Rep. 86. Rhodes v. Risley, (ante 52.) 6 Mass. Rep. 434, Barber v. Prentiss. 8 T. R. 384, Rex. v. Laindon. He cited Chit, on Bills, 91 — 104. 1 Camp. Rep. 442.

<p>THIS was a Writ sf Error brought by Penniman to reverse a judgment which Pierson had recovered against him at the County Court holden for this County in February, 1822.</p> <p>The original action was commenced before a Justice of the Peace, and came to said County Court by appeal; in which Court Piers~n declared against Penniman, for that whereas heretofore to wit on the 20th day of March, 1820, in consideration that the sai~l Pierson would purchase of the said Penniman a yoke of oxen, and would pay him therefor a certain,sum, to wit, the sum of $80, he the said Penniman undertook and faithfully promised the said Pier-son, that said oxen were healthy and sound; and the said Pierson says that he, confiding in the said promise and undertaking of the said Penniman, did then and there buy of the said Penniman the said yoke of oxen, and pay him therefor the said sum of $S0. And the said Pierson further saith that the said Penniman hath not kep$ or performed his said promise and undertaking, in this behalf, because he says that one of the said oxen at the time of the sale was unhealthy, sick, and unsound, and of no value.</p> <p>To this declaration the defendant in the Court below pleaded the general issue, and the Jury returned a verdict for the plaintiff; and thereupon the defendant below filed a bill of exceptions, on which this writ of error was brought.</p> <p>The exceptions taken to the opinion of the Court below, will sufficiently appear fay the opinion of this Court delivered by</p>

THIS was a Writ of Error brought to reverse a judgment of the County Court for the County of Chittenden, in an action in favour of Heman Lowry Sheriff of Chittenden County plaintiff below v. Guy Gatlin, on a receipt for property attached on mesne process.

<p>THIS was an action of assumpsit on a note of hand, made and executed by the defendants, bearing date the 18th of April, 1814, in and by which the defendants,, for value received promised the plaintiff to pay him ten thousand feet of good merchantable pine boards, on the first day of October, 1819, at the saw-mill in Jericho, hired by the defendants of the plaintiff.</p> <p>The defendants pleaded in bar, That on the day mentioned in said note for the payment thereof, to wit, on the first day of October, 1819, at the place in said note mentioned for the payment thereof, they the defendants had ten thousand feet of good merchantable pine boards sawed and prepared for the payment of said note, and were ready then and there to have paid the same, and remained there at said mill, on said first day of October, 1819, through the day, for the purpose of delivering the same, until the going down of the sun, but the said Truman did not come to receive the same; and said boards ever since have been, and still are ready for said Truman, to wit, at the mill aforesaid, if he will take the same.</p> <p>The question raised in this case is, whether an ability, and a mere readiness on the part of the defendant, to pay in specifick articles at the time and place appointed for the payment, unaccompanied with any other act, is of itself a a suifieient fulfilment of the contract on his part, when the plaintiff does not attend to receive the payment. We contend,</p> <p>1. That in all contracts where the consideration is executed, as in the present case, the contract is complete and debt absolute — no condition precedent to be performed on the part of the plaintiff, nor is his presence necessary, to enable.the defendant to perform his part ©f the contract, so far as to discharge himself from it. And in such case, the plaintiff, in order to constitute a good cause of action, need not aver in his declaration that he was ready at the time and place, to receive the payment, or make any proof of such readiness.</p> <p>2. But when the consideration is executory, and the defendant’s performance is to depend on some act to be done or forborne by the plaintiff, the plaintiff must aver and prove performance on his part, or render some excuse for the non-performance. 1 Chit. 309.</p> <p>3. All contracts are to be construed most strongly against the contractor, and the plaintiff in this case, has a right to hold the defendants to a strict performance of their contract. And, in order to discharge themselves from an obligation payable in specifick articles, they should not only be ready with the property at the time and place appointed, but in case the plaintiff do not attend, make an actual designation of it, and set it apart, so as to vest the property in the plaintiff, that he may have the control of it when he shall chuse. It is always the duty of a debtor to do all in his power to fulfil his contract. Bray. R. 224, McConnel v. Hall. — Same 227, Wood v. Beeman. Swift’s Digest 290.</p> <p>4. An averment ¡of a. mere ability and readiness to perform a contract, without any other act done, is certainly too vague and uncertain to furnish any evidence of an actual performance — much less to operate as a complete discharge of the debt.</p> <p>5. If the property is not designated, and separate from other property, and proof at hand of the designation, and of the quantity and quality of the articles, the creditor has no means of ascertaining or identifying the property intended to be paid to him, or whether he ought to accept it in payment or not. And if not designated on the day stipulated, any designation or tender of it afterwards could not avail him,</p> <p>6. When the property is to be delivered at the creditor’s house after a legal tendry made, the debtor is not bound to take any further care of it. — 1 Swift’s Dig. 294. In this case the boards were to be delivered at the plaintiff’s mill. If then the doctrine contended for by the defendants be correct, they need only have the property on hand, at the time and place appointed, and express a readiness to pay, and their debt is thereby discharged, and the property left, of whatever nature it might be, to be squandered or lost, without any responsibility on the part of the debtors. And the injury which consequently accrues to the plaintiff, must operate as a punishment, for non-attendance, although he might have a justifiable excuse for his neglect. A principle so absurd, it is believed can* not be maintained. The law having imposed no duty on the plaintiff to perform, he surely ought not to suffer so severely for the purpose of establishing a new principle, contrary to all former precedent in this State. If a better principle could now be established, let the Legislature, not the Courts interfere, and correct the supposed evil.</p> <p>We contend that the facts disclosed in the plea in this case are sufficient to prevent a recovery. The plaintiff claims damages because he says that the defendants have not performed their contract. It appears, however, that they sawed out the boards — had them ready at the time and place stipulated, and, if necessary, we may presume that they were measured out and separated from their other boards — that they remained there through the day ready to deliver them, but the plaintiff did not come to receive them — that the boards are still ready for the plaintiff, if he will take them.</p> <p>The right of the plaintiff to change a contract of this kind into a cash debt, ought not to be allowed^ but as a consequence of negligence on the part of the defendant. That these defendants have done all which they were morally bound to do, will be doubted by none. And, if there be any defect in their defence, it must arise from some rigid rule of law, having the appearance, at least, of a justification of a hard creditor,, in taking advantage of his own wrong. But we will not, without examination, cast this odium upon the law.</p> <p>It is said that the defendants should have tendered the boards 5 but it appears by the plea that the plaintiff did not attend — was not present at the time and place, to receive them: a tender therefore could not be made.</p> <p>■ It was said by the Court in the case Morton v. Lamb, 7 T. R. 131, that it would be absurd to state a tender to a man who was not present to receive it. So in the case of Rawson v. Johnson 1 East 207, it was said by opposing counsel, and not disputed, that jf the party does not attend, a tender is impossible. And Lord Kenyon, in his argument in the last case, corroborates the doctrine for which we contend, — He says, “ In administering justice, we must not lose sight of common sense — one party goes to do his pari, but the other stays away. The party pleads that he was ready, but that the other party did not come: Would it be any answer to say, that he ought to have pleaded a tender ? It cannot be necessary to go through with the useless ceremony of laying down the money, to take it up again.”</p> <p>The aboye doctrine was advanced, in relation to an averment by a plaintiff of his readiness to perform a precedent condition; but we contend that the law is the same in the case of performance of precedent conditions, as in the present case. The very term tender to a person includes the presence of the party to whom it is made. A tender without any person present to whom it is made,"is a solecism.</p> <p>But we contend that a readiness to perform by one party, when the other party does not attend, draws after it all the consequences of a legal tender. This doctrine is stated, 1 Swift’s System 405, as sound law; “ that every consequence, which would have followed by tender and refusal, will follow from being ready if the other party do not come.” Bacon says, “ If a party, to whom tender was to be made, was present, or if it do not apppear from the pleadings that he was absent, it must be averred that there was a refusal; but when the party to whom tender was to be made did not come, it is sufficient to allege that he was ready, and that the other party did not come.” Thesame doctrine is maintained by Chitty 317 — 18. The case of Robbins v. Luce is to the same point. In that case, Parsons Ch. J, says, “ The defendant could not tender the barrels unless the plaintiff was there. He had done all that he could do; and it was owing to the plaintiff’s laches, that the contract, as.written, was not performed.”</p> <p>But that case, if considered as an authority, expressly decides the present case. In delivering the opinion of the Court, Judge Parsons says, “The defendant in his plea, among other allegations» avers that on that day at his dwelling-house, he was ready to deliver the barrels to the plaintiff: if he had also averred that the plaintiff was not there to receive them, this plea, if true, would have been a good bar, and pleaded in good form.” This is clearly a direct decision that the matter contained in the defendants’ plea in this case is a good bar to the plaintiff’s action, and that it is pleaded in «•ood form, as there is an averment in the plea that the plaintiff did not attend to receive the boards.</p> <p>The same doctrine is maintained by Richardson J. in the case Rowe v. Young, 2 Brod. & Bing. l65 — 7- And it is believed that no principle of law is better settled-; there being no conflicting opinions respecting it — no contradictory decisions; and is alike supported by reason and by precedent,.</p> <p>If a contract be made for the delivery of specifick articles at a particular time and place, and the creditor do not attend to receive them, all the debtor can do, is to be ready at time and place, with the articles, ready to deliver them; of course this shall prevent a recovery of damages against him for a non-performance, as absolutely as though he had made a legal tender of the articles to the creditor, he being present; and it would, be a departure from- the analogy of the law to say that these facts well pleaded; shall not- be a good bar of an action, brought for a non-performance of the contract.</p> <p>But on the part of the pl’ff it is insisted that it was the duty of the defendants not only to have been ready with the boards at the time and place appointed; but, as the plaintiff did not attend to receive them, it was the duty of the defendants to designate the boards and set them apart, so as to vest the property of the hoards in the plaintiff. The case of McConnel v. Hall is cited in support of this doctrine ; but this is a case standing alone, wholly unsupported by any decided case. Where a debtor, to an action on his contract, has pleaded a tender and refusal, and has prevailed, and has thus been discharged from his contract, the property tendered has been considered as vested in the creditor; and on refusal by the debtor to deliver the property, the creditor has maintained trover for it. But in no case except that of McConnel v. Hall has it been decided, that the property of the article tendered is vested in the creditor by a tender and refusal.</p> <p>Suppose in this case, that the plaintiff had attended and the defendants had measured out and tendered the boards to the plaintiff, and he had refused to receive them; and the plaintiff afterwards concluding to receive the boards which had been tendered and he had refused, called on the defendants and demanded the boards, and the defendants had refused to deliver them, do the gentlemen mean to say that the plaintiff could maintain an action of trover for the boards ? I presume they alluded to such action of trover, when they said that it was necessary that the property be designated and set apart, so as to vest the property in the plaintiff, that he may have the control of it when he shall choose; “ and of this there should be proof at hand.77 It is clear that the plaintiff in such action of trover must prove property in himself, and as he claims no title to the property except that which he has acquired by the tender of the property by the defendants, and his refusal to receive it, the bur-then of proving the tender and tefusal must be on him. Now although in cases of an executory consideration, it is very common for the plaintiff to rely on proof of a tender made by himself to the defendant, yet for the plaintiff to rely on proof of a tender of property made by the defendant to himself, would be novel, and to say the least, would be a sort of back-handed case of tender. And yet if by a tender and refusal, the property tendered be vested in the creditor, all these consequences will follow. But to support such action of trover, the plaintiff must prove still another tender; he must prove that at the time when he made demand of the property tendered, he tendered to the defendant the note on which he demanded the property, and must bring the note into Court; for, certainly he could not be permitted to recover the amount of the note, and keep the note in his own possession. It might indeed be convenient for him, for should he fail in his action of trover for the property tendered, not being able to prove that the defendant made a tender of it, he might then resort to an action on the note, and compel the defendant to prove the tender.</p> <p>The defendants, in this case, satisfied that they had done all in their power to perform their contract, and that which would bar an action ©n the note; and as the plaintiff had on his part neglected to attend to receive the boards at the time appointed, that he could have yio legal right to them, without their assent, as it was now at their option to deliver the boards to the plaintiff, if he would receive them in satisfaction of the note, or to keep the boards and pay the amount of the note in money, they chose the former course, and have kept the boards ready, lest, on a demand and refusal, they should be subjected to the payment of the note in money, having no-wish to satisfy the note with the boards, and still keep them to their own use. The above facts the defendants have pleaded in bar of the plaintiff’s action on the note. — This plea the plaintiff might have traversed, in which case, as stated by Judge Parsons in the case Robbins v. Luce, if the defendants could not prove that they had the boards ready, the issue must have been found against them. But the plaintiff has chosen to demur to the plea, admitting that the defendants had the boards ready, and that they still have them ready, and that the plaintiff did not attend to receive them. This is an admission that the defendants did all in (heir power to perform their contract: and it was no more necessary to aver that the boards were measured out and set apart, in this plea, than in a plea of tender. In both pleas alike is included every thing necessary to be done by the defendants at the time.</p> <p>Thus we have attempted to shew that the defendants’ plea is adapted to the case, and is, both as to the form and matter of it, clearly supported by precedents; and that the ground on which the plaintiff seems principally to rely is wholly untenable.</p>

THIS was an action for money bad and received, and for monies-paid, &c. On trial upon the general issue, at January term, 1822, the plaintiff, in support of the issue on his part, offered evidence of facts to make out the following case: — That on the 7th day of September, 1814, the defendants as administrators of Silas Smith, late of Shore* ham, deceased, conveyed to the plaintiff by their deed of that date, a certain farm of land, being part of the estate of said Silas…

THIS was a Writ of Error brought to revet'se a judgment of the City Court of the City of Vergennes. By the record it appears, that a suit was brought by Wheeler v. Adams before that Court, which was referred by agreement of parties, and the judgment was rendered on the report of the referees.

<p>THIS was an action of debt on bond. In the declaration the bond was set forth in common form, with the following condition, and specifick breaches of the condition : “ If the above bounden 33. Fillmore, administrator of all and singular the goods, chattels, rights, credits and estate of Nathan Colgrove, late of- deceased, shall make, or cause to be made a true and perfect inventory, of all and singular the goods, chattels, rights, credits and estate of the said deceased, which had or should come to the hands, possession or knowledge of the said E. Fillmore, or into the hands or possession of any other person or persons for him; and the same shall exhibit or cause t<^ be exhibited unto the Registry of said Court of Probate, at or before the 25th day of December next ensiling : and the same goods and chattels, rights, credits and estate, and all other of the goods, chattels, rights, credits and estate of the said deceased, at the time of his death, which at any time after shall come into the hands or possession of the said E. Fillmore, or into the hands or possession of any other person or persons for him, shall well and truly administer according to law; and further, shall make or cause to be made a true and just account of his administration at or before the > day of --. And all the. rest and residue of the said goods, chattels, rights, credits and estate which shall be found remaining upon the said administrators’ account (the same first being examined and allowed by the Court of Probate) shall deliver and pay to such persons respectively, as the said Court of Probate, by their decree or sentence, pursuant to the true intent and meaning of the law, shall limit and appoint: And if, &c. — Then the said obligation to be void and of no effect, or else to remain in full force and virtue.” And the plaintiff saith, that after the making of the said obligation as aforesaid, to wit, at a Court of Probate holden at Rutland in said District, on the second Monday of May, 1822, on application of Gideon Buel and Phebe his wife, daughter of the said Nathan deceased, the said E. Fillmore administrator as aforesaid, and the heirs of the said Nathan, having been notified, pursuant to the order of said Court, that a division would that day be made of the estate of the said Nathan, remaining in the hands of the said E. Fillmore administrator as aforesaid, it was among other things ordered and decreed by said Probate Court, that the said E. Fillmore administrator as aforesaid, pay the said Phebe Buel wife of said Gideon Buel, one eighth part or share of the sum of $479 96 then found remaining in the hands of the said administrator, being ,$59 90, within ten days from said second Monday of May, 1822. And as an assignment of a breach of the condition of said bond, according to the form of the statute in such cases made and provided, the plaintiff says that the said E. Fillmore, although requested on the first day of October, 1822, has not as yet paid to the said Gideon Buel and Phebe his wife the said sum of $59 90, or any part thereof, although the said term of ten days from the making of the said order or decree of the Probate Court has long since expired. By reason of which premises the said Gideon and Phebe his wife have sustained damages to a large amount, to wit, the sum of one hundred dollars, and thereby an action has accrued to the plaintiff to have and recover of the defendant the sum of-above demanded, &c.</p> <p>To this declaration there was a general demurrer and joinder.</p> <p>We contend that the declaration in this case is wholly insufficient, and shall insist on the following causes of demurrer:</p> <p>1. For that the dividend set forth in the plaintiff’s declaration was not made according to law; the statute requiring that the same be made by a committee to be appointed by the Court of Probate. Stat. 1 vol. 132, sec. 31, and p. 135, sec. 41.</p> <p>2. It does not appear by the declaration, that the Court of Probate issued an order of notice to the administrator or heirs, nor docs it appear that they ever had any actual or legal notice that a distribution of said estate would bé made at the time mentioned in the declaration, which is necessary to render it legal and valid; for the Court of Probate is a Court of limited jurisdiction, and it ought to appear by the records of their proceedings that the Court has proceeded according to law.</p> <p>. 3. It does not appear from the declaration that the sum ordered to be paid could not be collected of the administrator, which is. necessary to be stated and proved, before an action can be maintained on the bond, to recover that sum of the bail.</p> <p>insisted that there was no foundation for either of the exceptions taken to the declaration. The law he con" tended, does not require the appointment of a committee of distri" bution, in a case where money only is to be divided. Stat. 1821, 46,58. 1 vol. Comp. Laws, 130, 135.</p> <p>But, if we are incorrect as to this, yet, the proceedings before the Court of Probate in this case, being a Court of Competent jurisdiction, and having jurisdiction of the subject matter, their validity cannot be inquired into collaterally in this action ; but the defendant having been notified of the time and place of making the decree, ought to have appealed therefrom, if he felt himself aggrieved ; not having done so, he is now concluded by it. 1 Phil. Ev. 223, 262. 2 Bur. 1009, Moses v. McFarland.</p>

THIS was an action of ejectment for a lot of land in Rutland, containing sixty acres, laid as a third division to the rights of John Dandley, Oliver Colborn and Thomas Blanchard.

THIS was an action of assumpsit on a note of hand. Plea, the general issue, which was joined to the Court, by agreement of parties. The evidence given by the plaintiff on the trial, was not objected to by the counsel for the defendant, it having been agreed that the same objections to the evidence might be urged upon the argument, as would have been proper upon the trial. The note declared upon was read in evidence, of the following tenor“ Arlington, September 27, 1808.

THIS was an action of assumpsit on a promissory note for the sum of one hundred and ten dollars, bearing date the 19th of February, 1820, and signed Henry Lyman and Co. On trial upon the general issue, at the last February term, the defendants admitted the execution of the note by Henry Lyman, and the existence of a partnership between the defendants at the time the note was executed, but resisted a recovery on the ground that the note was given for the purchase of a horse,…

THIS was an action of ejectinent for eleven acres of land in Pownall, part ~f a farm of one hundred and sixty acres formerly owned by Samuel Cord.