Volume 1 — Tyler's Vermont Reports

<p>Plaintiff may enter liimself as bail for costs of proseen, ion, on the original process in civil suits.</p>

<p>Comparison of bands, or concession of a party on a former trial when not attached to the record,cannot be given in evidence while , the subscribing witness to a contract is within process.</p>

EJECTMENT. Common rule entered, and the general issue to the country. Defendant offered to read in evidence a deed from Nathan Spafford, constable, and collector of the surveyor-general’s tax, commonly so called, conveying the lands described in the declaration in fee to his ancestor, under a vendue sale for the non-payment of a tax. objected.

EJECTMENT for a right of land in Charlotte, to wit, the original right of John Southgate. Common rule entered. General issue joined and put to the Jury; Plaintiff’s evidence: First. Copy of the charter of Charlotte, recorded in the proprietor’s records, dated 24th June, 1762. John Southgate, an original grantee. Secondly. Deed from John Southgate to Sarah Southgate, dated July 3d, 1762. Thirdly.

ACTION on promissory note, dated 17th February, 1791, for the sum of thirty dollars. Writ returnable to Chittenden County Court, September term, 1796. Plea to the jurisdiction. That a Justice of the Peace has exclusive jurisdiction of all civil causes to this amount.

SCIRE FACIAS, to shew cause why execution should not issue de bonis propriis. Demurrer by defendant. Causes of demurrer: First. It is not alleged that said Ira was ever administrator on the intestate’s estate. Secondly. That the plaintiff in his declaration hath not alleged that there were assets in the hands of the supposed administrator.

PLAINTIFF complains, that by the consideration of the County Court of Chittenden County, he recovered judgment against Abel Phelps for the sum of 61. 2s. lawful money, and prayed out his writ of execution in due form of law made returnable in sixty days from the date, and committed the same execution to the defendant, in his capacity of sheriff, to serve and return agreeably to law, but that said Pearl; contriving to injure, &c. neglected to return said execution, whereby,…

ERROR. This writ was brought to reverse a judgment rendered on appeal by the County Court in a suit brought by the present plaintiff to recover the penalty for killing deer out of the statutable 4 0 .. season, under the act to prevent the destruction oi t • • It appears, from inspection of the record, that the defendant Williams had, before the institution of the suit, complained of himself to Mr. Justice Powell, of W?stforcl, who recorded his confession, and received the…

<p>The truth of words spoken, cannot be given in evidence under the general issue in an action for slanderous words.</p>

<p>THIS was an action of assumpsit, brought by appeal from Chittenden County Court. At this term, Miller and Keyes, for the appellee, filed the following motion:</p> <p>Kinne, appellant, v. Plumb, appellee.</p> <p>l Chittenden County, Supreme > Court of Judicature, January ) term, A. D. 1801.</p> <p>The said Samuel Plumb moves the Court here to <fismiss the said action from the docket of the Court, 1 . for that it appears from the files, that 'said action was irregularly commenced before the County Court, in that the same declaration was, by an order of the said County Court, and without the consent of the said Samuel Plumb, filed in Court against him the Said Samuel Plumb, without any service or notice whatever; and that the said County Court ordered the said Samuels attorney to appear and plead in said action, or to suffer a default thereon; whereby the said Samuel was compelled to appear and answer to said action to prevent judgment by default being rendered against him. And so the said Samuel says the County Court had no jurisdiction of said action.. Wherefore the said Samuel prays a rule may be granted upon IF. C. Harrington, Esquire,, attorney to the said Daniel Kinne, to shew cause why the said action should not be dismissed, and that he may have his costs. By</p> <p>Keyes and Miller.</p> <p>It was admitted, that the declaration was filed in the County Court, under the following rule of said Court, and was conformable thereunto :</p> <p>RULE OF THE COUNTY COURT,</p> <p>Chittenden County Court, September Term, 1797*</p> <p>In all causes where the files in any action in this Court are or shall be lost, the plaintiff’s attorney shall have leave to file a new declaration, on affidavit, stating that he cannot find them with the Clei'k of the Court, or learn where they are, and that the declaration which he moves for leave to file, does, to his best knowledge and belief, set forth the same cause of action, and in the same form as was set forth in the declaration so lost as aforesaid.</p> <p>Smith, Judge, recited memoriter the decision of a case in this Court last term, Bennington County : A. entered an action against B. in Bennington County Court. After several imparlances, the files, were missing under such circumstances as induced a belief that the defendant had eloigned them. The County Court made an especial rule, authorising the plaintiff to file a ndw declaration, which was^clone. Defendant refused to answer to it, and instructed his attorney to withdraw his appearance. The County Court rendered judgment by default. Defendant brought his writ of error. The whole proceedings of the County Court were certified up. The Supreme Court reversed the judgment rendered in the Court below, and it was the united opinion of the Judges of the Supreme Bench, that the County Court had no power to make such rule.</p> <p>insisted, that the rule of the County Court, under which the plaintiff Kinne filed the declaration on the loss of the original files, ivas warranted and rendered valid by the statute, which authorises the Supreme and several County Courts to make all necessary rules for the orderly practice in their several Courts, provided that such rules be not repugnant to the constitution or laws of the State.</p> <p>This rule cannot be repugnant to either. True, the same statute directs by what process defendants shall be brought into Court, and hoiv such process shall be served. In this case the statute was complied with, and the parties in Court; the files were then lost. This is a case not indeed contemplated by the statute, a casus omissus, and is well provided for by the rule of the County Court. But it is sufficient in this case for the plaintiff, that the filing of this declaration is warranted by the practice of the Courts of common law in England, which practice is surely not set aside by any statute of the State. On the contrary the whole body of the English common law is adopted sub modo, or with certain restrictions. In support of which practice, he cited Lilly's Entries, vol. 2. p. 522. Clitheroe v. Franklin. In this cause it appeared to the Court of C. B. upon affidavit, that the verdict Was given for the tenant, and judgment thereon signed; but the postea, with the writ of habeas corpora juratorum, and the panel thereto annexed, was by misfortune lost. It was ordered that the like record should be engrossed, and that a habeas corpora be made anew and returned, and a verdict on the postea be returned by the associate of the Lord Chief Justice of the Court, and that judgment be entered thereon according to the verdict.</p> <p>He also cited Str. Rep. vol. 1. p. 141. edit. 1781. King, qui tarn, v. Bolton.</p> <p>Tnc defendant having brought error in Parliament, the record was transcribed, and, as it was carrying to the House of Lords, the original was picked out of the officer’s pocket. The House of Lords received the transcript without examining it, and the Court of B. R. ordered a new entry to be made, and the judgment of the King’s Bench was affirmed in Parliament.</p> <p>Mr. Chipman further observed, that the decision of the Supreme Court, cited by the Assistant Judge, he humbly conceived was not in point, as that deci-‘ sion was grounded upon an especial rule, apparently made to apply to a particular case; but because the County Court had no power to make such especial rule, non constat they may not make general rules for the orderly practice of then Court, as provided bv the statute. Indeed the statute provides merely for general rules.</p> <p>The statute directs that the declaration shall be sent out with the writ; that service shall be made in all cases twelve days before the sitting of the Court to which it is made returnable. These requisitions of the statute must be complied with, or the judgment will be erroneous ; or rather, all the-subsequent proceedings will be irregular and void. That these requisites have been complied with, can be shewn by matter of record only. In this case, it cannot appear that these statute requisitions have been complied with. What then’ is the operation of the process in the County Court? Plainly this: To compel a defendant to answer to a declaration filed against him in Court without any previous preparation or notice. This is directly i'epugnant to the statute, which requires that the defendant shall have twelve days notice of the declaration before the sitting of the Court. The rule of Court, then, on which the proceedings are founded, must be void, and of course all the proceedings grounded upon the rule.</p> <p>The decisions cited from the authorities wei'e founded on the English statutes of jeofails, which are broader than ours; of course those decisions can have no weight. Besides, if the rule of the County Court be repugiiant to the laws of the State, it must be void. In this view of the subject we have only to compare the rule with the statute. The repugn nancy is manifest.</p> <p>To notice more particularly the cases cited from the English books. We observe, that the cause of King, qui tam, v. Bolton, was in prohibition. In that cause it appears, that after the plaintiff had declared in prohibition, judgment against him, and writ of error brought by him in Parliament, in carrying up to the House of Lords a transcript, together with the original record, the latter was picked from the pocket of the clerk ; the transcript was read in Parliament without examination and comparison with the original, as is the practice in such cases j the Lords proceeded, and affirmed the judgment. After a final judgment and decision of the cause, on the writ of error application was made to the Court of King’s Bench to file the proceedings de novo to support the judgment; and by statute the Judges in England are empowered to amend in support of judgments ; but in the construction of this and all other statutes of jeofail, they never create, and have ever some written document to amend by. In this case there wras the copy or transcript of the process to amend by. Thus, by our practice, should the copies brought into this Court bj^ appeal be lost, this Court would-allow them to be supplied by a new transcript. The files and records of the County Court would remain to amend by.</p> <p>In the case of Clithero v. Franklin, where the ha-, beas corpora verdict and postea were lost, there was the writ, declaration and process still left. There was the Judges’ notes to amend by, as well as the oath of the Clerk. The habeas corpora is to be compared to our venire; the verdict, as with us. Should our Clerk neglect to enter the verdict, or lose it when returned on paper as in civil causes, it might at any time before.the ending of the term, be supplied from after recollection; yet the writ and process could never be thus supplied. There is this principle in both cases cited ; there was something to amend by. jn the present case, there was nothing to • supply the loss of the files but a partial amendment, supplying merely the declaration without mesne process, bail, or subsequent pleadings, and that declaration supplied from the mere recollection, and supported by the affidavit of the attorney to.one party, and forced upon the other party.</p>

<p>IN ERROR. Plaintiff in error nonsuited.</p> <p>The plaintiff below moved the Court that he might tax in the bill of costs, now recovered by defendant in error, an item containing the officer’s fees for the return of the original execution; which writ of execution had been superseded by the writ of error. He read the 8th section of the act entitled, An act constituting the Supreme'Court of Judicature, 8tc. “ And the Supreme Court of Judicature shall have power to examine, reverse, or affirm any judgment in civil actions rendered in any County Court upon a writ of error; which writ of error any Judge of the Supreme Court shall have power to allow and sign, and, on allowance of such writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs. If he fail to make his plea good, and if, on such writ of error, the former judgment shall be affirmed, the Court shall adjudge to the defendant or defendants in error, just damages for the delay occasioned by such writ, and single or double costs, at their discretion.”</p> <p>He also read a clause from the fee bill, regulating the fees for sheriffs, &c. returning writs of execution. He argued, that this item for officers’ fees for returning a superseded execution, although not strictly within the letter, came fully within the spirit of the law; that the manifest intention of the Legislature was to give all real damages, and something as smart money, to the defendant in error, to prevent delay in the collection of debts; that, allowing this item to be unprovided for by the statute, yet an officer having an execution in his hands unlevied, and the same being superseded by a writ of error, it became his duty to return the writ to the Court from whence it issued, with his .reasons for not levying the same indorsed ; for until the execution be returned, the plaintiff below can obtain no alias, which might issue upon the affirmation of judgment, or nonsuit of the plaintiff in error. It has likewise been decided, that the officer is liable to an action for neglecting to return such execution; therefore if the officer is in fact placed in this situation by the writ of error, that he is compelled to return the execution, and there is no other mode pointed out by the statute for him to obtain his fees for such service, the Court will be inclined to allow them under their, discretionary power.</p>

<p>THIS was an action of ejectment brought to re- . _T r ¿, cover the possession or Lot No. 75, on the oouth Hero, drawn to the right of James Hopkins, an original grantee under the charter made by the government of the State,</p> <p>The' cause went to the Jury under the general issue.</p> <p>that in support of the plaintiff’s title he should rely upon the proceedings and deed of the constable, ex officio collector of South Hero, who had legally granted the lands described in the declaration to the plaintiff’s ancestor, under the authority of an act passed November 3d, A. D. 1791, entitled, “ An act for the purpose of raising thirty thousand dollars.”</p> <p>He then read a charter issued by the Governor of the State, conformable to law, dated 27th October, 1779, granting the islands in Lake Champlain, called the Two Heroes, to certain associates, among whom the name of James Hopkins was inserted.</p> <p>He then offered in evidence a deed executed by Isaac Adams, constable and collector of South Hero, conveying the first division of the original right of James Hopkins, original grantee in South Hero, to Charles Laffiin.</p> <p>objected to this deed being read in evidence, as the grantor had not in the deed either recited his proceedings at large, or set forth that he had in all things pursued the directions of the statute.</p> <p>admitted this to be necessary, unless he could shew the requisite proceedings from the doings of the constable. He then read a warrant in usual form from the Treasurer of the State, directed to the constable of South Hero, commanding him to collect a tax of one halfpenny on each acre of land in South Hero, pursuant to the statute above mentioned, and was proceeding to read in evidence certain public newspapers to prove the publication of the tax agreeably to the requirement of the act.</p> <p>contended, that previous to the reading’ these publications to the Jury, it was incumbent upon the plaintiff to exhibit the rate-bill required by the act to be made out by the selectmen, and delivered to the constable as collector. He read part of the first section of the act, which enacts,</p> <p>“ That upon receipt of the Treasurer of the State’s warrant, the constables shall give notice to the selectmen of their respective towns, who shall on or before the first day of March, 1793, make out and deliver to such constable a rate-bill, containing a list of all the lands in such town held in severalty, and the number of acres contained in each lot, and the range in which it lies, or the division to which it was drawn or pitched, and the tax to be paid on the same; and where there are undivided lands in such towns, the said selectmen shall, under their oath of office, make an estimate of the quantity of land so undivided to the best of their judgment, which, together .with all other lands in such towns, they shall form into one general list, and return an attested copy thereof on or before the first day of November (thenJ next following to the Treasurer of the State; and the selectmen shall assess each landholder or proprietor for the quantity which they respectively own, both divided and undivided, in one sum annexed to their names respectively; and when any land-owner or proprietor shall pay his proportion of said tax, it shall be the duty of said constable to make an indorsement on his rate-bill, of the name of the person so paying the tax, and their lands shall thereupon be discharged therefrom ; and if the sum assessed shall not be paid on or before the first day of September, 1793, such constable shall give notice by advertisement in all the newspapers printed in this State,” &c.</p> <p>insisted that it was not necessary to produce the rate-bill as any part of the evidence to support the plaintiff’s title. The warrant from the State Treasurer was in itself the sole and complete commission for the proceedings of the constable, in which no direction was given to the constable to apply to the selectmen for such rate-bilL He conceded that it was the selectmen’s duty to assess, and that they might be indicted for nonfeasance; yet if such assessment or rate-bill was not made, it would not defeat the plaintiff’s title, as the object of such assessment was not the benefit of the landholder ©r proprietor, but merely the convenience of the constable or collector, pointing out the portions or divisions in which he might vend the land. He argued, that if the Legislature had contemplated the assessment or rate-bill as constituting any link in the chain of title to lands vended under the act, they would have directed it to be recorded in some public deposit, to which the feoffee of the land under the vendue might at all times have had access.</p> <p>in reply, contended, that when a common law right is defeated by statute operation, such statute ought to be pursued strictly; that though it might be true that the Treasurer’s warrant did not direct the constable to apply to the selectmen for the rate-bill, yet the same warrant referred to the act, was itself a creature of the act, and in connection with it constituted the constable’s power to vend the lands of delinquents ; that by the act the constable’s application to the selectmen for a rate-bill became so necessary, that he could not proceed in his duty without it; that the assessment and rate-bill were equally a convenience to the landholder or proprietor as to the constable or collector, furnishing an indisputable statement of what the former had to pay and the latter to collect; that there is no deposit of record, for the rate-bill provided by the actis correct; but it is not more necessary to record the rate-bill than the proceedings of the vendue, which it is undoubtedly necessary to.produce in support of the plaintiff’s title; but it appears there is a provision made in the statute, that the selectmen should forward an attested copy of the assessment and rate-bill to the Treasurer of the State, which might be resorted to in cases of exigency.</p>

<p>Decision under the act establishing the division of lands in the town of Shorehain.</p>

COVENANT broken. Attach Martha Went-worth, of Portsmouth, County of Rockingham and State of New-PIamp shire, to answer unto Benjamin Sumner, of Clairmont, in the County of Cheshire ' . .

<p>ATTACH Moses Goddard and Buel Hitchcock, of Addison, in the County of Addison, et al. to answer unto Mathew Phelps, of Nexv-PIaven, in the same County, in a plea of trespass on the case. Whereupon the plaintiff declares and says, that at New-Haven aforesaid, on the 20th day of July, A. D. 1798, he the plaintiff then was, long before had been, and still is an inhabitant of said New-Haven; and the said defendants, combining, conspiring and confederating together to wrong and injure the plaintiff, did entice and persuade the plaintiff to go to Crown Point, within the jurisdiction of the State of New- York, from his home and his friends, and from the State of which he was an inhabitant as aforesaid; and the plaintiff so being fraudulently enticed and persuaded from his friends and acquaintance, among strangers and out of the State of which he was an inhabitant as aforesaid, at Crown Point aforesaid, in the State of Nezv- York aforesaid, on the 20th day of July aforesaid, they procured the plaintiff to be arrested on a process issued from the Supreme Court of the State of New-York aforesaid, in the name of one William Finch against the plaintiff on an old demand in favour of the said William Finch against the plaintiff for the sum of three hundred dollars, from the pay,ment of which said demand of the said William Finch he the plaintiff had long before the arrest aforesaid been exonerated in this State by the statute of limitations ; and the plaintiff being so arrested as aforesaid, on the process aforesaid, for such demand of the said William as aforesaid, was on said process then and there, to wit, at Crown Point aforesaid, on the same 20th day of July aforesaid, held a prisoner for the space of six hours, when the plaintiff, for the purpose of obtaining his discharge from said imprisonment at great trouble and expense procured and entered bail for his the plaintiff’s appearance in said action before the Supreme Court of the State of New-York aforesaid; and the plaintiff further says, that the said Moses, Buel et al, further fraudulently combining and confederating together against the plaintiff as aforesaid, procured the process so served on the plaintiff as aforesaid to be returned to the Supreme Court of the State of New-York as aforesaid,' and. entered in said Court, where the same process aforesaid is yet pending, and he the plaintiff is liable, by the laws of the State of New-York aforesaid to have a judgment of the said Supreme Court rendered against him in the process aforesaid, for the whole sum of the aforesaid demand so existing against him by the laws of the State of New-York as aforesaid, although the same demand had, long before the confederacy and combination of the said Moses, Buel, See. and their arrest of the plaintiff so made as aforesaid, been barred by the statute of limitations of this State. By reason of which the plaintiff hath been put to great cost, charge, expense and trouble in defending in the action aforesaid on the process aforesaid, on which he the plaintiff was so arrested as aforesaid, and by the fraudulent combination and confederacy of the said Moses, Buel, &c. as aforesaid, is injured and made worse, as he says, 3,000 dollars.</p> <p>Goddard and Hitchcock arrested, and non est as to the other confederates.</p> <p>At the County Court, the cause went to the Jury on the general issue. Verdict for plaintiff, 100 dollars. Defendants. gave notice they should waive their plea at the Supreme Court, and demur generally to the declaration. .</p> <p>At this term, the demurrer was argued and decided.</p> <p>This is a novel declaration. If we should search from the earliest book of entries to the most modern, we shall never find one of this nature. It is true, variety of-injury will continually produce a variety of declarations in case. But then, to be correct, although they differ in allegation, they must be founded on the great and leading principles of the law. This declaration appears to be equally destitute of form and principle. In the present argument we shall not descend to notice the defects of form, which may possibly be cured by jeofails ; but we shall contend against the substance of it.</p> <p>This declaration allegates, that my clients, with others, combining. and confederating, not with force and strong hand, not vi et annis and with breach of the peace, but by enticement, persuaded the plaintiff to go with them within the jurisdiction of a neighbouring State, and there procured him to be — what? arrested to respond to a just debt due to one of the citizens of that State, and recoverable by its laws, although barred by our statute of limitations. To exhibit this novel declaration in all its naked deformities, we have only to apply to the plaintiff himself, Let us question him. Is not the debt for which you were arrested due? He answers by his declaration, it is. Is it not a just debt? He confesses, that though an old, yet it is a debt justly due. Did my clients assault you ? did they batter, beat or wound you, until you were forced to pay it ? No; but they caused me to answer for my neglect in failing to pay an honest debt, before one of the most upright and intelligent State Courts in the Union.' Of what, then, do you complain ? Hear his reply from the declaration itself: “ By the law of the State where I reside, my creditor is for ever barred from bringing any action against me to compel me to pay this just demand ; and I had hoped, under the letter of our statute of limitations, to defraud my creditor of his property; and now your clients have enticed me to act like an honest man, and I am persuaded this Court will make them respond in damages for this grievous wrong.”</p> <p>Is not this substantially the language of the deck ration ? But let me ask seriously, is it a language which ought to be heard in this Court of Justice ? I have ever been taught, that he who crieth for justice against others, should first do justice himself.</p> <p>.It is true our declaration is new, but certainly it is incorrect to assert, that it is not founded on principle. To every possible injury the law supplies a possible and adequate redress. Here is an injury sustained by the plaintiff inflicted upon him by the combination and deceit of the defendants and their associates; and shall it be held, that he has no remedy. It is true, we can find no precedents in our books of entries : but the reason is plain; such an injury could not have been inflicted in England; it grows out of the state sovereignties. Here we have seventeen sovereignties, independent of each other as to their internal regulations and municipal laws. Their laws operating on contracts are various. In one State an action upon a species of contract is lir mited to a lesser, in another to a more extended term of years. In transitory actions limited by statute in one State, and not barred in another, it is to be expected that the creditor will prosecute for judgment in that where his demand is recoverable, if he can bring the debtor within process. This often operates hardly upon him, who may be compelled to respond a demand in a sister State, when he is debarred from recovering a demand of the same age and nature in his own. It is to be regretted that provision was not made , in the Federal Constitution to enable the Legislature of the Union to establish some uniform system of limitation of civil actions, if not on torts on contracts. As it is, the subject has often occupied the attention of the various State Judiciaries. In some States the Judges have decided, that the lex lóti where the contract was made should govern; in others they have considered both the action and the contract transitory, aftd have Subjected a contract made in another State to the laws of their own. In other States — but it is unnecessary to state the various decisions in the different States in the Union. Among these jarring decisions, we in this State have an equal right to our opinion. Our Legislature have a sovereign right to enact statutes of limitation. Our Supreme Court will, we trust, consider that it is the great object of their appointment to carry the laws of the Legislature into effect; and it is the right of the citizens to be protected by those laws. If an action is limited by our laws, he who abides within our jurisdiction can never be exposed to such action; and they who combine to entice him within a jurisdiction where the action is not limited, shall respond in damages. This doctrine is not entirely novel. In Roofs Reports, p. 59. we find a case of David Leavitt and two others v. Peter Sherman, which shews, that the Supreme Court in Connecticut considered an action of this nature would lie, although the Court decided that the demurrer was sufficient, upon the exception there taken, viz. that one of the plaintiffs, who was not arrested, joined in the action with two others who were.</p> <p>The present action is not brought against the creditor who was in pursuit of his debt, against the officer executing a legal precept; but against men, strangers to the contract, but neighbours to the plaintiff, probably bribed to entice their unwary and unof• fending neighbour into a scene of costs, vexation and trouble.</p> <p>Court. Read to us authorities to shew, that merely enticing a person to become obnoxious to civil process for a just demand, is actionable.</p> <p>Miller. With submission, this is not a just, that is, a legal demand. We wish to know where the line shall be drawn.</p> <p>Court. If personal force is applied, an action of trespass vi et armis will lie; and the Court will be very liberal in their inquiry after consequential damages. Rut you have allegated no force. You may at least shew some analogous cases, if any exist.</p> <p>Daniel Chipman. We have already stated that the case is novel, and we can shew no precedent. But we argue from the nature of the thing. The declaration exhibits a peaceable citizen engaged at home in his domestic concerns, not concealed either in person or property from his creditors, but amenable at all times to the laws of the government which he renders his taxes and personal services to support. If such a man is enticed into a foreign jurisdiction, and there exposed to all the costs, inconveniences and vexations of a lawsuit among strangers, by the combination and deceit of his neighbours, who being strangers to the suit, to suppose them bribed is attributing the best possible motive to their conduct. If such an event takes place, the moral sense rises against it. We feel that the man is injured, and all see, that from the common principle of justice he ought to have redress.</p> <p>Court. But if the debt is bona Jicle.</p> <p>Chipman. With submission vve conceive, that if the debt is honest, it malees no odds. We have wholesome laws, and our citizens are entitled to their protection; and I have no idea that the defendants shall be permitted to take us from this State, and say, “ We will take you from a land where no justice is found, and carry you where it is well administered.” If this action will not lie, neither will an action, if a citizen were enticed to Europe, and there made liable to decision upon a contract made here under some usage or practice which might run counter to all our ideas of justice, and to the very intention of the parties contracting.</p> <p>We have ever been taught that the law abhors deceit. Why should it be made to countenance it in this instance ? If this demurrer prevails, will it not be sanctioning fraud by law ? If our client had -concealed himself or property, there might have been possibly some excuse for some kind of art in enticing him into daylight.</p> <p>This declaration is in the nature of an action of conspiracy, and there is surely sufficient set forth in it, to sustain it on demurrer. If there is but a trivial injury sustained, this should not operate in demurrer. Let the quantum be the object of inquiry after damages. Wc shall shew, if permitted, under this declaration, the combination of the defendants and their confederates, and the injury we have suffered by being enticed from the protection of our own laws, within a foreign jurisdiction. If the demand of Finch is just, which is the pretence for this violation of our right?, is it therefore no injury to be compelled to attend a Court at a great distance, to be subjected to the necessary and augmented expenses in a strange land, to say nothing of the fees of advocates, which are known to be much greater than in our own Courts.</p> <p>Our opponents having argued themselves into the opinion that there is no substance in their declaration, now seem determined to rely upon the form. The declaration is said to be in the nature of an action of conspiracy, and that there is sufficient to sustain it in the very language of it. Every sufficient declaration in trespass on the case must set forth an injury sustained by the plaintiff, and make out a case for which an action will lie. The merely stating that the defendants have confederated and combined, unless some injurious and unlawful act is stated as the consequence of their combination and confederacy, is of np more avail than if the plaintiff had allegated that defendants had ■confederated and combined to feed and clothe the plaintiff. The gist of the action of conspiracy is an injury sustained as the effect of it. Here is none set forth, unless the exposing a man to justice is an injury.</p> <p>After so much has been said of the just abhorrence in which the law holds deceit, it seems confessed that there is a certain pia fraus at which my brother Chip-man's morality does not.revolt. He acknowledges, that if the plaintiff had concealed himself and property, qome kind of deceit might have been lawfully used to entice him into daylight. But where is die difference ? In this case were not the plaintiff and his property effectually concealed from his creditor ? He had not, it is true, hidden himself in the caves of the rocks, but he had completely concealed himself from his honest creditor under the dark cloud of our limitation statute. - ■</p> <p>But wherein consists the moral turpitude of the deceit allegated to have been practised; for the charge of bribery is dehors the record. I should esteem it á moral duty to assist an honest creditor in recovering a bona fide debt.</p> <p>It is said this action is not brought against the creditor or officer making the arrest; conceding, I presume, that it could not be maintained against either of them. But if tire act was legal in them, is it not in my clients, their servants ?</p> <p>But if this declaration should be sustained, what is to be the measure of damages ? Shall it be Finch's demand ? The action upon that demand, we learn from the declaration, is now pending in the Supreme Court of the State of New- York. ■ The writ may abate, or judgment may be for the present plaintiff; or if judgment for Finch, it may be reversed by error. Can we now know what will be the quantum of da mages in that suit ? If we could, is it right that my clients should respond it in damages under the present suit ?</p> <p>It is said, costs will accrue in that suit, and advocates’ fees will be great, and expenses of attendin Court will be heavy. But if these are taken into consideration in the inquiry after damages in this suit, would pot such items be the foundation of an action in every case where a citizen of this State seeks redress against his fellow-citizen' in another State, where the expense of living, costs of Court, and fees of advocates, may be higher than in this State ?</p> <p>The case cited from Roofs Reports does not touch the present case.</p> <p>On the whole, we consider that the plaintiff, in the declaration in question, has set forth no cause of action. If he has counted on any damage sustained, it is damnum absque injuria.</p>

<p>A promissory note deposited with arbitrators, subject to their indorsement to the amount of their award, is void.</p>

DEBT on an escape. Summon James Sawyer, • Esquire, sheriff of Chittenden County, to appear, See. and answer unto Darius Chipman, in a plea, &c. that to the plaintiff the defendant render… Held: that nominal plaintiff may maintain an action for mesne profits. It will be necessary to examine the. principles which govern this case, and the ancient doctrines of ejectment. The action of ejectment was invented to get rid of the tedious delays caused by the bringing real actions.

<p>Debt on recogbefore T° juscouii^o'fTnquiry, will not he tute of 1787. former upon motion and or** der for new bail</p>

MOTION to dismiss. In the declaration, plaintiff set forth, that the said Joel Minor, Ephraim Carr, and Wait Rathborn, have in their possession money, goods, chattels, rights or credits of the said Moses.

DEBT on recognisance. Attach Simeon Smith to answer to Chalkley James, surviving partner of Roger Hunt, deceased, in a plea, &c. that he the said Simeon to the said Chalkley as surviving partner to the said Roger Hunt, render the sum of 1,400 dollars, which he justly owes, &c. for that whereas the said Simeon, in the life-time of the said Roger, to wit, on the 9th day of February, 1798, in his own proper person appearing before Enoch Woodbridge, Esquire, one of the Judges of…

TRESPASS for taking one yoke of oxen, a mare' and colt. General issue. Trial per pais. stated, that on the 6th of April, 1798, the defendants purchased out two writs of attachment, one in'each of their names, and both against the present plaintiff and one Francis. These writs were issued by and made returnable before Mr. Justice Button, on the fourteenth of the same April.

MOTION in arrest of judgment, and for trial de novo, in ejectment. This cause was tried at the stated term, February, 4» D. 1801.

THIS was an action of debt on a bond. Defendant pleaded nil debet. Verdict for the plaintiff, and judgment for the penal sum. Motion to chancer filed by the defendant last term. And now the defendant moves for leave to plead de novo, that he might plead a release in bar, which was tested anterior to his filing the plea nil debet. In this action we were surprised into an immaterial issue.

SPECIAL rule. David Fay, State Attorney for said County, here moves the Court for a special rule to be served upon Truman Squires, attorney in this Court, to shew cause, if any he have, why he should not forthwith deliver to the grand jurors, duly impanelled, sworn, and charged by this Court, at this now term, diligently to inquire after and true presentment make of all felonious breaches of the law, for their inspection and examination, two certain promissory notes (which…

THIS was an action of trover and conversion, in which the plaintiff declared, that the defendant had converted to his own use a certain bay mare, the property of the plaintiff.

<p>(Reserved Case.)</p>

THIS was an indictment for forgery. The defendant shewed in evidence a complete defence. Mr. Attorney now moved to enter a nolle prosequi. We apprehend a nolle prosequi cannot be pleaded in bar to a subsequent indictment for the same offence. We consider our defence so ample and conclusive, that we are entitled to a verdict, and entry of judgment, eat sine die, that by plea of auterfoits acquit, we may be enabled to set this illiberal prosecution for ever at rest.

ACTION on promissory note. ' Jndorsee v. in* dorser. Plaintiff offered in evidence the original files of the County Court, on several pieces of paper in the action heretofore brought by the indorsee against the drawer of the note, accompanied with a certificate by the Clerk of the County Court, certifying a minute of the judgment in favour of the drawer. that certified copies of the entire record ought to have been produced, containing an exemplification of the whole process…

THIS was an indictment contra formam statute for sending a written challenge to fight a duel. Upon demurrer to the indictment, the principal exception inter alia was that the indictment would not lie uoon the act for the punishment of certain inferior crimes and misdemeanors, passed March 4th, A. D. 1797.

ACTION on the case. Plaintiff declared, that at Weathersjield, Windsor County, on the 4tK of January, 1796, in consideration that he the said Andrew Culver then and there paid to the said Moses Barnet forty shillings lawful money, to his the said Barnet1 s full satisfaction, he the said Barnet sold to the said Culver all the timber then lying on the ground, with six standing trees on the southern part of Lot No.'46. in the fourth division of lots in said Weathersfield,…

<p>THE plaintiff declared in debt upon a gaol bond, jointly and severally made and executed by defendant and one Solomon Strong, since deceased, to the sheriff of Windsor County, and by him assigned to the plaintiff; conditioned, in the usual form, that Jacob Bradbury, a prisoner for debt, should not depart the liberties of the prison; dated 1st July, 1800.</p> <p>Plea, non est factum. Issue joined and put to the Jury.</p> <p>And now the plaintiff offered a bond in evidence, the penal part of which recited, that Solomon Strong, Jedediah Strong, and Jacob Bradbury, held themselves firmly bound and obliged, &c.</p> <p>The execution of the bond by these three obligors was proved by Daniel Short, One of the subscribing witnesses. The signature and seal of Jedediah Strong did not appear on the bond.</p> <p>objected, that the bond offered in evidence, and proved by Daniel ■Short, is not the same bond declared upon.</p> <p>now stated, that the bond was originally made by Solomon Strong, Jedediah Strong, and Jacob Bradbury, but soon after the execution of it an immaterial defect was discovered in the bond, scilicet, Jacob Bradbury was set forth as being commorant in Hartford. This defect was rectified by erasing Hartford, and inserting Hart-land. This was effected in the absence oí Jedediah Strong, but the two other obligors were present, and consented to the alteration; and he contended that the bond was still good against them, although afterwards the erasure of the signature and seal of Jedediah Strong was made,</p> <p>Charles Marsh. All that the plaintiff attempts to prove is, that the alteration was made with the consent of the two remaining obligors, but that, when they gave their, consent, the seal and signature of Jedediah Strong still remained. It does not appear thát they ever gave any consent to the erasure of the name and seal of their co-obligor, nor would they.' This cannot therefore amount to a new acceptance and delivery by Solomon Strong and Jacob Bradbury.</p> <p>Nathaniel Chip man. The bond became void. When altered it became no bond, but depended, upon the subsequent act of the two individuals to render it obligatory. So in case where bond is given jointly and severally by ten obligors : it is altered; five consent and five refuse to consent to the alteration, and make a new delivery. It would hold against those five who consented. Each is bound by his individual act. If they had picked up an old bond signed by three others, not parties to their contract, and then executed it, would any one contend that they might not, after the execution, have cut off the immaterial names ? They might have been Indian names, and as accidentally there as the wax. The plaintiff, or rather his assignor the sheriff, might have had incorrect ideas upon the subject. But whatever they might have thought, after the alteration the name of Jedediah Strong was mere surplusage. It might have looked like forgery to see it there, but it was no longer Jedediah Strong’s bond. By the alteration it became as to him a mere nullity.</p> <p>Charles Marsh. We wish to be informed if the object of the proffered evidence is merely to shew that Solomon Strong and Jacob Bradbury consented to the alteration of the bond so far as relates to the changing the names of the towns. If so, we will not contend.</p> <p>Nathaniel Chipman. We expect to prove that the transaction between the assignor of the plaintiff and the defendant- and Solomon Strong, after the alteration, amounted to an actual redelivery and acceptance of the bond.</p> <p>Taylor, a witness, sworn. I was present when the alteration was made. A defect as to the town of Hartford was discovered. Hartford was erased and Ilartland put in its place, by one Turner, a constable. Solomon Strong and Jacob Bradbury were present, consented to the alteration, and said that the bond should be taken as g’ood, and no advantage taken. Jedediah Strong was not present, nor was any mention made of his name.</p> <p>Adams, a witness on the part of the defendant, testified, that he was present at the alteration. Solomon Strong and Jacob Bradbury said they accepted the bond as good. Turner said he would get Jedediah Stroiig to consent to the alteration.</p> <p>Charles Marsh. We now renew our objection to the bond being read ill evidence. An immaterial alteration by, a stranger does not destroy a bond; but when ever so immaterial an alteration is made by the obligee, it does destroy it. Here the alteration was made by Twner, the officer, a mere stranger to the contract, and the alteration was immaterial so the bond did not become a new bond, as contended for. The whole drift of the testimony shews, that all the consent of Solomon Strong and Jacob Bradbury went merely to their taking no advantage of the alteration, not to accept the bond as a new and separate thing, It is manifest they meant it merely as a consent to the alteration, but not to accept the bond as a binding instrument upon themselves separately from Jedediah Strong.</p> <p>■Nathaniel Chipman. The question, as now put to the Court, is a matter properly in pais, to wit, whether the evidence goes to prove a second delivery. It is not now a question whether the bond was nullified or not by the alteration. It is sufficient that the parties esteemed it so at that time; and the proper question to the Jury is, whether what was done by the two made the bond binding upon them.</p> <p>Charles Marsh. The gentleman is endeavouring to steal a law point from the Court, and give it to the Jury. 'This is merely a point of law for the sole decision of the Court. It must be agreed that an immaterial alteration by a stranger cannot vitiate a bond, and all questions of erasures, &c. belong properly to the Court.</p>

<p>A sheriff’s return of a vendue sale for the non-payment of what is commonly called the ten shillings tax, is illegal if he states that he has located more land in any one section of a township than that quantity for which the. lowest bidder offered to pay the tax on that particular section.</p> <p>The late Governor 0f W«uMamfishire’s visir,s of land reserved to him hy the tevferal charters, are not considered ns hidden in common with the other proprielors-of (he the respective townships,</p>

PLAINTIFF declared in case for several sums due to the intestate in his life-time. First count. General indebitatus assumpsit in the 1 sum of 2,000 dollars, for goods, wares and merchan- . . dise sold and delivered. Second count. 200 dollars, money laid out and expended. Third count. 2,000 dollars, money had and received. To these counts general issue was pleaded and joined. Defendant then pleaded as a set-off, several sums, by eight counts in his declaration. First count.

DECLARATION for taking insufficient bail. Plaintiff declared in case, that he recovered judgment against Seth Emmons, at the Windsor County Court, holden on the third Monday of September, 1799, for 86 dols. 64 cts. damages, and 6 dols. 26 cts. costs of suit; and on the 30th of the same month purchased out his writ of execution, and on the same day delivered the same execution to the defendant Rice, in his capacity of sheriff of the County, to serve and return, according to…

<p>The collector of a proprietor’s tax is not advertisement3 nextouiename of each deimtor such sum as is assessed, on his right or share, but may mention the amount of the tax on each right generally, and then insert a list of the delinquents.</p>

<p>A promise made by a sheriff to a debtor, within the liberties of the prison, “ that if he escaped he would not sue him until he had first prosecuted the bail,” will not operate a defeasance of the bail-bond, though the principal be sued at the same time with the bail.</p> <p>If the subject matter of a statute notice under the general issue could not have been well pleaded in bar, such matter maybe avoided on trial by parol demurrer to the evidence offered in support of it.</p>

<p>PLAINTIFF declared in debt, that the defendant render to him the several sums of 37 dols. 42 cts. 6 dols. 55 cts. and 27 dols. 42 cts. making’ in the whole 71 dols. 39 cts. for several judgments recovered by the plaintiff at the Court of Common Pleas holden at Litchfield, within and for the County of Litchfield and State of Connecticut, on the fourth Tuesday of March, 1798; which judgments are in full force, and in no part satisfied. Profert made of the record of the Court in Connecticut.</p> <p>The defendant craved oyer ,of the records ; which being read to him, it appeared, that Burnham was set forth as being of Pomfiret, in the County of Windsor and State of Vermont.</p> <p>Defendant then pleads in bar; because he says, that the said Solomon Waddams, at Goshen, in the County of Litchfield and State of Connecticut, on the 24th of April, 1797, purchased out the two writs upon which the judgments in the plaintiff’s declaration mentioned were rendered, signed by Adino Hall, Justice of the Peace, which writs were made returnable at and before the County Court then next to be holden in Litchfield, within, &c. on the third Tuesday of September then next, which writs were brought for the recovery of damages for the non-performance of certain promises therein alleged; and afterwards, on the 25th of April, in the year aforesaid, The said Solomon Waddams, by Timothy Buel, a pretended constable of said Goshen, caused each of said writs to be served by attaching on each an old chair, which were turned out by the said Solomon Waddams, at his the said Solomon's dwelling-house in said Goshen, as the- property of the said Frederick Burnham, and left copies of the said writs at the dwelling-house of the'said Solomon Waddams.</p> <p>And the said Frederick Burnham further says, that at the time of the pretended service of the said writs, and for a long time before, vizi for the term of twenty years next preceding the time of the pretended service of said writs, he lived and resided in the town of Bom fret, in the County of Windsor and State of Vermont, and not in any part of the State of Connecticut. That the said chairs pretended to have been attached on said writs and turned out by the said Solomon Waddams as aforesaid, were not, at the time of said pretended attachment, nor were they ever the property of him the said Frederick, nor had he at that time any property of any description in the said State of Connecticut. Lt hoc est paratas verificare. Wherefore, &c.</p> <p>To this plea the plaintiff demurred, and for causes of demurrer set down the following, viz,</p> <p>First. That the said plea is double, alleging two separate and distinct facts, having no legal connect lion; for that the said plea alleges, that the said Frederick, at the time of the service of the said writs, was not an inhabitant of the State of Connecticut, blit resident in Pomfret, Windsor County, State of Vermont. And it also alleges, that the property attached was not the estate of the said Frederick Burnham.</p> <p>Secondly. It does not appear by said plea, but that the said writs were served conformably to the laws of the State in which said judgments were rendered, or but that the Court of Common Pleas in the State of Connecticut had jurisdiction of said cause.</p> <p>Thirdly. The said plea is hypothetical, uncertain} and without legal form.</p> <p>Joinder in demurrer.</p> <p>This plea ift bar is double. Here are two issues tendered in the same plea.</p> <p>Hall, Judge. According to my Conception of the law, that duplicity in pleading which the law is said, to abhor, exists when separate and distinct matters, Which would Constitute distinct defences, are pleaded. But when ever so many facts are combined in the same plea, all going to prove one defence, there is no departure in pleading.</p> <p>In this case the two facts set forth in the plea in bar go to shew that the* Court in Connecticut had no jurisdiction of the causes in which the several judgments declared upon were rendered; and this is one entire defence, and no duplicity in pleading..</p> <p>Chief Judge. It is true, duress and accord and satisfaction cannot be joined in the same plea; but even this dictum of the book shews, that accord and satis* faction, distinct facts, may be coupled in the same plea, both going to make one entire defence, which would avoid the action. There is in such case no departure, and I can conceive none here.</p> <p>Buck. We shall now endeavour to shew, that the two facts in the plea in bar are not connected; and therefore, with deference to the opinion of the Court, this present plea is not within the doctrine laid down by the bench.</p> <p>If we should have carved an issue to the facts pleaded in bar, could we have coupled the facts of the defendant’s being resident in Vermont, and his having no interest in the property attached, in the same issue? Would there not have been duplicity in our traverse. In legal acceptation, accord and satisfaction are but one fact, that the party has agreed to accept a sum in discharge of his demand, and is satisfied with it. In truth, it is the simple fact of satisfaction that is alone pleaded, and relied upon in the plea. The accord is mentioned only as the inducement to it, and never can be pleaded safely alone. Therefore the elementary .writers say, that accord is, an agreement between two persons at least to give or accept something in satisfaction of a trespass, &c. done by one to the other. This agreement, when executed, may be pleaded in bar to an action for the trespass; for in all personal injuries, the law gives damages as ah equivalent, and when the party accepts-of an equivalent there is no injury or cause of complaint, and therefore present satisfaction is a good plea. But if the wrong doer only promise a future satisfaction, the injury continues until satisfaction is actually made, and consequently there is a cause of complaint in being, and if the trespass were barred by this plea, the plaintiff could have no remedy for a future satisfaction; for that supposes the injury to have continuance.</p> <p>But we shall rely principally upon our second exception : that it does not appear but that the two writs were served conformably to the laws of the State in which the judgment was rendered, or but that the Court in Connecticut had legal jurisdiction of the same.</p> <p>Certainly the law on this subject has been settled beyond controversy. In a plea in bar to a debt on a foreign judgment, it is necessary to set forth the laws of the country wherein such judgment was rendered, that the Court may determine whether the judgment has been legally obtained. The case of Mostyn v. Fabrigas, Co-cup. Rep. p. 161. goes the full length to shew' the high respect the English Courts entertain for foreign judgments. It is repeatedly said, in this celebrated case, that the laws of a foreign country must be pleaded.</p> <p>Chief Judge. It is a point settled, that when debt is-brought upon a foreign judgment rendered by default, the Court will go into the consideration of such judgment; and, if it appears such judgment was surreptitiously obtained, they will not render judgment upon it.</p> <p>Buck. There is another view of the subject: if the two stated facts are true, and may be embraced in one plea, yet they cannot be taken advantage of in a plea in bar to an action of debt on judgment in this Court, or even in that in Connecticut. When the actions upon which our judgments are predicated were entered in the Court of Common Pleas in Connecticut, insufficient services might have been pleaded in abatement there, or might have been cured by personal appearance of the party in Court, and imparlance, and certainly want of service of the original writ would have been the subject of error. But the writ of error must have been brought in Connecticut. This Court would not reverse a judgment rendered in another State by writ of error.</p> <p>Here are three exceptions in demurrer to the plea in bar. The first has been overruled by the Court, the last has been abandoned by the counsel.</p> <p>As to the second, which states in substance the necessity of shewing in the plea in bar, that the facts stated therein are against the laws of Connecticut,</p> <p>We reply, that we cannot find a dictum in the books in point, but many passages to induce us to believe it is not necessary. The case cited from Cowper's Reports merely shews, that the Courts in England will take notice of foreign laws, so far as to consider them operative in relation to contracts made under them, and that the Court must assist the Jury in determining what such foreign laws are. The whole opinion of the Judge goes only to shew, that the King’s Bench will inquire into the jurisdiction of minor and unappellant Courts, pertaining to the empire ; as in the case of the steward of a college, which we find in the same authority.</p> <p>If it be necessary to plead the laws of Connecticut, this follows, that we must plead law and fact in one plea, which would be fatal.</p> <p>The only question not abandoned or overruled is, whether it is necessary to bring the law of the State of Connecticut upon the record in our plea in bar.</p> <p>We say the gentleman has not and cannot shew any case decided, or the dictum of a single Judge, that it is necessary to plead a foreign law. England is a great commercial country, and frequent are the actions tried in the English courts of law upon contracts made in various foreign countries. The books abundantly shew, that upon the trial of such actions the laws and customs of the several countries where such contracts have been made are allowed to be shewn in evidence, and to regulate the decisions of the Courts on such contracts. But are those laws and customs ever pleaded, or spread on the record?</p> <p>In our plea in bar, we offer to verify certain facts, which, if true, are sufficient to shew that our plea is good. If the verbal statement we have given of the laws of Connecticut be correct, which does not seem to be denied, and we had set it forth in our plea ip bar, the same gentleman would have demurred, and alleged, that we had made in lieu of a double, a treble plea; two of facts, and one of law: for certainly if the law of Connecticut had been spread on the record, it would have been an issuable point, and the Jury whose province it is to try facts would have had to try'law.</p> <p>It is said, that in the case of Mostyn and Fabrigas it is repeatedly laid down,. that a foreign law should be pleaded. This is certainly a mistake. By recurring to the report the contrary will appear. The matter there insisted upon by the counsel for Fabrigas is, that if Mostyn was that sacred person as Governor or Judge, he ought to have pleaded it. It appears, from all the arguments and points in this important case, that no one of the learned counsel ever maintained that Mostyn ought to have pleaded the laws of Minorca.</p> <p>Buck. It appears that Mostyn pleaded that what he did was in pursuance of the laws of Minorca. In the present plea in bar there is no allusion to any law whatsoever.</p>

SUMMON Stephen Jacob to answer unto William Hunter et al. selectmen and overseers of the poor of the town of Windsor, &c. Plea in abatement: For that the action is brought by the plaintiffs for the benefit and behalf of the inhabitants of the town of Windsor, and the writ is served by Stephen Conant, deputy-sheriff, who is an inhabitant of the town, whereas the writ ought t« have been served by some disinterested officer.

THIS was an action of assumpsit to recover the amount of a certain execution and extra costs.

<p>If a petit juror is qualified by being- a freeholder when put into the • town jury-box, his d: vesting himself of liis freehold before drawn and summoned cannot be taken advantage of after verdict, but should have been objected in challenge.</p> <p>If a petit juror by any intimation discloses the event of the verdict before it is delivered in Court, it will be considered as a gross violation of his official oath, and the verdict on motion will be set aside.</p>

THIS was an indictment for forging a promissory-note contra formara statuti. On trial the promisor of the note was offered as a witness on behalf of the State, The counsel for the prisoner objected to his competency. It has been uniformly decided, that on an indictment for forgery under the 5th Eliz. c. 14. the person injured, or, as the statute expresses it, aggrieved, by the forgery, cannot be a witness on the trial.

THE plaintiff declared on a bail-bond dated January, 1799, executed by the defendants to the sheriff, for the admitting Cole, then a prisoner at the suit of the plaintiff, to the liberties of the gaol yard; bond assigned 20th November, 1799, and escape alleged before the assignment. Plea in bar, that the bond was in fact executed 1st November, 1800, but antedated to January, 1799. To this plea, plaintiff demurred, and took several exceptions.

<p>ERROR. This writ was brought to reverse a judgment rendered by the County Court, Caledonia County, June term, 1801.</p> <p>Oyer of the record craved* arid plea in nullo est erratum.</p> <p>The history of the cause, and the error assigned, may be collected from the bill of exceptions spread' on the record.</p> <p>The bill states, that Peasely, on the 2d December, 1800, commenced an action of debt on recognisance against the defendant in error and one Paul Spooner, writ returnable to Caledonia County Court, January term, 1801, demanding 1,000 dollars, which they jointly and severally owed, &c. for that, on the 19th of July, 1797, Buckminster attached Peasely to answer in an action of trespass, and entered his writ January term, 1798 ; which action was Continued from term to term until the January term, 1799 ; at which term Buckminster recovered judgment against Peasely, from which judgment Peasely appealed to the Supreme Court, 1799; at which term Peasely recovered judgment for his costs against Buckminster, and the latter reviewed the cause. “ And on that occasion, as surety to the said Jedediah that the said Buckminster should prosecute his review to effect, and answer and pay all intervening damages and costs, in case ju dgment should be affirmed,” Buckminster ajad Spooner entered into the recognisance. That at. the September term of the Supreme Court, 1800, Buckminster suffered a nonsuit, and thereby did not prosecute his review to effect, and the recognisance became forfeited, 8ccí Non est as to Paul Spooner. That Peasely entered his action upon the recognisance against Buckminster, who suffered a default to be heard in the assessment of damages. And now, at the County Court holden at Danville, within and for the County of Caledonia, June term, 1801, on motion of the plaintiff Peasely, a Jury was impanelled to assess the damages in said cause, and said Buckminster was permitted by the Court to be heard in assessment of damages; and while the cause was on trial upon the assessment aforesaid, the said Jedediah Peasely offered to produce one Abner Hunt and one Thomas Dow to testify and prove, that after review in the original cause by the said William Buckminster, and before and at the next Court to which said cause was reviewed, and at which said Buckminster suffered a nonsuit, the said Jedediah was at great expense in procuring witnesses and employing counsel, and wa'S at great charge in time spent'and money laid, necessarily laid out in preparing to defend in said cause, besides his fee-bill costs, which the said Jedediah said were intervening damages, according to the statute in that case made and provided. To which it was objected, that the intervening damages to be inquired after were such only as were occasioned by said Jedediah? s being delayed in recovering the sum for which he had recovered judgment against said William Buckminster, and not such extra costs and trouble its were not recognised in the fee-bill, and therefore that the evidence offered was not pertinent to the inquiry. Nevertheless the said Jedediah did insist, that such evidence ought to be received by said Court, and suffered to go to the Jury, which the Court here refused to permit or admit, and declared their opinion here, that the said matters here on the part of the said Jedediah produced, ought not to be given in evidence. Whereupon the Jury here find nominal damages only, to wit, the sum of five cents. Whereupon the counsel on the part of the said Jedediah, because the matters aforesaid, offered by the said Jedediah to be given in evidence as aforesaid? do not appear by the verdict of the Jury aforesaid, the said Jedediah requests of the Justices aforesaid, of tire Court aforesaid, according to. the form of the statute in such case made and provided, this bill of exceptions, which contains the matters aforesaid by the said Jedediah ready to be given in evidence as aforesaid? and by the Court aforesaid rejected. To which bill of exceptions the Justices of the Court aforesaid, that is to say two of them, being a quorum of said Court, at the request of the said Jedediah, have in open Court, this sixth day of the term, annexed our official signatures and seals.</p> <p> William Chamberlain. </p> <p> John W. Chandler. </p> <p>The question is, has error intervened from the exclusion of the testimony offered on the assessment of' damages by the Jury in the County Court.</p> <p>, It is conceded, that Peasely had taken out his writ, of execution upon the judgment for his costs on non-suit, which has been returned fully satisfied.</p>

THIS was an indictment for perjury, in swearing falsely m a certain deposition sworn to before Joñathan JBoit, Esquire, one of the Justices of the Peace of Franklin County, on the 9th September, 1796; which deposition was taken to be used, and was used 1 in a cause then pending in Chittenden County Court, . J wherem one Ljimphire was plaintiff and one Brown defendant.

THIS was an action brought by the plaintiff, as assignee of the sheriff, upon a bail-bond executed by the defendant jointly and severally with N. Spafford\ for admitting the latter to the liberties of the prison yard in the City of Vergennes. Plea in bar, that Spafford escaped with the consent of the plaintiff. Replication traversed the fact alleged in bar. Joinder, and issue to the Jury.

HABEAS CORPUS cum causa, returnable corain nobis. The writ was directed to Nathan Green, constable of St. Albans, commanding him to have forthwith the body of Abijah Hall, said to be a prisoner in his custody, with the cause of his detention or imprisonment.

VERDICT for the defendant at the last term; when House and A. Marsh, counsel for the plaintiff, moved for a rule upon Harrington and Rice, attornies to the defendant, to shew cause why the verdict in said cause should not be set aside and a new trial granted; because the plaintiff says, that one Judge alone presided, and held the Court for the trial of said cause, when in fact the two other Judges of the Court were not interested in the trial of said cause, or had been of…

THIS was an indictment for perjury contra Jormam statuti, presented to the Court January 3d, 1801. William C. Harrington moved that the Indictment might be quashed because the crime is alleged to have been committed the 24th day of April, 1797, more than three years from the time the indictment was exhibited in Court. He relied upon the act for the limitation of suits on penal statutes, criminal prosecutions, and actions at law, .passed November 6th, 1797.

<p>The deed, of a collector of a proprietor’s tax, however it may he worded, is not even prima facie evidence of a legal sale of the land. The proceedings of the proprietors in the assessment of the tax, and the collector’s own acts in the levy of it must be first shewn.</p> <p>The warrant Warning the meeting of the proprietors must be produced, that the Court may be enabled to judge whether it issued agreeably to law.</p>

EJECTMENT for 50 acres of land, being part of Lot No. 35. in the second division of lands in Fair-field, drawn to the original right of Daniel Smith. Common rule entered. General issue pleaded. Verdict for the plaintiff. Defendant’s counsel now moved to file a declaration for betterments, under the statute passed November 5th, 1800. Counsel for the plaintiff objected, and read the act.

'AUDITA QUERELA. The writ was allowed and signed by two Judges of the County Court. Below the writ the following minute was made: le John Palmer and Jonathan Green recognised to the defendant in the sum of 1,000 dollars, to prosecute the above writ in due form of law.

<p>When an officer attaches a chattel, and leaves it in the custody of the defendant, he so far loses his lien on the property attached, that a second attachment or bona fide purchase shall always enure against him.</p>

INDICTMENT for stealing one bushel of wheat in the chaff, on the second day of March, Anno Do-mini one thousand eight. Verdict guilty. In the copy delivered to the prisoner the year was rectified to one thousand eight hundred, and the defect ivas not noticed during the trial.

<p>After an appearance and imparlance, all defects in personal service ai;e waived.</p> <p>Whenthename of an attorney appears on the record, the Court will not suffer the record to be controvei-ted.' If a party has been injured by the appearance of counsel not retained, he may¡ have his remedy.</p>

EJECTMENT to recover possession of sixty'four acres of land in the township and island of South Hero in Lake Champlain, being Lot No. 75. Common rule entered, and general issue to the Jury.

COVENANT broken. Declaration for that the said Dills, at Burlington, . ‘ . “r by a certain obligation or covenant under his hand and seal, dated 12th November, 1794, said covenant reciting, that the plaintiff had at great expense procured a warrant of survey of a township of land in the Province of Lower Canada, called Bolton, for himself and associates, and that he had advanced large sums of money in locating said township.

<p>in case against the sheriff for taking insufficient bail on mesne process, a non est returned by the sheriff’s deputy on the execution -which issued upon the fi. fa. against the bail, may be so far impeached as that the sheriff may shew in his defence under the general issue, that the bail was of sufficient property to respond the judgment against the principal at the day of the date of guch execution.</p>

<p>A writ of scire facias, returnable to the County Court, must be signed by a Judge, or the Clerk of the Court, and not by a Justice of the Peace.</p> <p>in an action on theCsheri|ai&r cientSb«inupon th^defendant’ tiffmade sofar privy to the judgment against the bail, that he may in his defence of^radlcaid? cess1 upon ^he ««•/a- .</p>

SCIRE FACIAS, to shew cause why a writ of execution should not issue against them for the penal sum of a bond of recognisance entered into by them for the personal appearance of Ezra Moore, at the Supreme Court at their term holden in this County, on the first Tuesday of January, 1800, to answer to an indictment presented against him by the Grand Jury.

<p>PLAINTIFF declared upon a promissory note made by the defendant for the sum of 6/. 10?. lawful money, dated the 6th of November, 1787. Original writ served in 1800.</p> <p>Defendant pleaded in bar the statute of limitations, 1 passed 10th of March, 1787; which statute, after 1 mentioning a variety of other actions, which, with those on promissory notes, shall be sued or brought at any time after the end of the present sessions of Assembly, enacts, that they shall be commenced and sued within the times herein after expressed. All actions on promissory notes, within six years after the passing hereof, if executed, before the passing of the act, or if executed after the passing of the act, within fourteen years after the cause of action shall accrue, and not after. The plea was set forth with the usual averments.</p> <p>Plaintiff demurred.</p> <p>At the October session of the General Assembly, 1787, when a revision of the laws took place, the operation of this act, with a number of others, passed the session preceding, was suspended. The act declares,, that the force and operation of the revised laws, passed by the Legislature of this State at their last session, except certain acts, be and hereby are suspended until the 1st day of December next, id est, 1.78-7.</p> <p>And be it further enacted, that the force and operation of all the laws in this State, now in force, be continued until the same first day of December.</p> <p>The question now made is, whether the note declared upon was made before or after the passing of the act of the 10th of March, 1787. In the first case the action on the note would be limited to six, in the latter to fourteen years.</p> <p>contended, that though the operation of the act was suspended until a day subsequent to the execution of the note, yet the statute of March 10th, 1787, placed the distinction between actions on promissory notes limited to a shorter or longer period upon ££ the passing of the act.”</p> <p>that when an act is suspended by a subsequent act, the suspension is by its nature ingrafted into and becomes part of the first act, and the former cannot be said to be passed, that is, to become law, which is the technical meaning of the word £t passed,” as applied to statutes, until it goes into operation on the day provided by the suspending act; that the Legislature so considering, had, by an additional section in the suspending act, declared, that all the existing laws of the State should be in force until that time; which laws would have been abrogated and repealed in March, 1787, if it had not been for this additional section.</p> <p>But, to put the question for ever at rest, the Legislature, on the 28th of October, 1790, had passed an explanatory act, in the preamble of which they say, that whereas said act, to wit, the act- for the limitation of actions, was suspended from the 10th day of March, 1787, not to take effect until the 1st day of December, 1787, and doubts have arisen from which of those dates said statute should be construed to make the time of limitation begin: therefore be it enacted, &c. that the 1st day of December, in the year of our Lord one thousand seven hundred and eighty seven, be, and hereby is declared to be, the day from which the time of limitation, as to the passing the aforesaid statute, shall begin, any thing contained therein to the contrary notwithstanding.</p> <p>The plaintiff’s counsel insisted, that this explanatory act did not touch the present question.</p> <p>The expression in the act of March 10th, 1787, was vague “ after the end of the present session of Assembly,” a period which could not be generally known; and thei'efore, whether the limitation applied to six or fourteen years, it was equally proper for the Legislature to ascertain by public act the precise time of the rising of the General Assembly. But the Legislature, by their explanatory act, never intended to run into the absurdity of declaring, that an act was not passed at the time it was actually passed.</p>

<p>A person loaning a horse, which is eloigned and sold by the borrower, has a right to recapture him, provided it be done,, without breach of the peace.</p> <p>Wlrat sales shall be considered to have been made in market overt.</p> <p>A person may recapture his properly in such manner as may constitute a trespass.</p>

<p>It is not valiobjection to the po&° ftadr tiie attorney to the adverse party was not notifiedjthough living within the ypkceS of caption.</p> <p>It is not a coined ion in a party’s family by intermarriage with his daughter, but avdiiiterest in the cause, whicli. incapacitates a person from writing or j drawing up a deposition. <</p>

<p>THIS was an appeal from a Freehold Court. The original process was by summons.</p> <p>A motion was entered to quash the complaint, because no minute was entered upon it of the time of the exhibiting the same by the magistrate issuing the process, in pursuance of the 5th section of the act for the limitation of suits on penal statutes, criminal prosecutions, and actions at law, passed November 6th, 1797. Vermont Statutes, vol. 2. p. 407.</p>

<p>MOTION for a new trial.</p> <p>Plaintiff declared in two general counts :</p> <p>First. Indebitatus assumpsit for work and labour done for a sum certain.</p> <p>Secondly. For money had and received.</p> <p>At the last term the cause went to the Jury under the general issue, when it appeared in evidence,</p> <p>That the defendant had contracted with one Johnson to erect a forge and mills for him in the town of Westford, and was to pay him a certain sum. Johnson hired the plaintiff, among others, to work at 4s. 6c¿» per day. That before Johnson began the work, the plaintiff, apprehensive of his responsibility, refused to labour unless his wages could be secured to him. At this time Joshua Stanton, junior, son to the defendant, appeared and persuaded the plaintiff to work, assuring his wages until his father returned from a journey. The plaintiff then went to work. Some weeks afterwards, Joshua Stanton, junior, again came to Westford, and informed the plaintiff that he had mentioned the circumstance of his apprehensions of Johnson’s responsibility to his father, who said if the plaintiff would continue to labour, and Johnson would draw an order upon him in the plaintiff’s favour to the amount of the wages, he would accept it. That some days afterwards the defendant was himself at Westford, and in conversation with the plaintiff ratified all his son had promised in his behalf. The plaintiff then continued to work on the forge and mills, procured the order upon Johnson in his favour for the amount of his wages, which defendant protested.</p> <p>It was also in evidence, that there had been an arbitration between the defendant and Johnson, when there was found due from the former to the latter, 150 dollars, which Johnson demanded upon the award, but defendant said he would not pay it until he had settled with Sherman, as he was holden to see his wages paid. This was subsequent to the protest of the order.</p> <p>Verdict for the plaintiff, 82 dols. 3 cts. and costs.</p> <p>At the same term, the following motion was filed:</p> <p>And now the said Joshua Stanton, in Court, by Daniel Chip man, his attorney, after verdict in said cause, moves and prays the Court here for a rule on the said Edmond Sherman to shew cause, if any he have, why the verdict given in said cause should not be set aside and a new trial had; for that the evidence on the part of the said Edmond Sherman, given to the Jury in the trial of said cause, was wholly impertinent and improper to be given to the Jury in support of the declaration in said cause.</p> <p>Rule granted.</p> <p>And now at this term,</p> <p>shewed cause. The Court never grant a new trial where the merits of the action have been fully tried. Morgan’s Essays, p. 112. There can be no doubt that a special count might have been added to the present declaration, and that it would have been fully supported by the evidence adduced. But we shall contend there was no necessity for adding such count, for the evidence well supports both our counts. It is sufficient for us to shew that it supports either of them. We contend that the evidence supports the first count; for it appears the work and labour was actually done for the defendant, Johnson being his mere agent.</p> <p>Sed per Curiam. We are clear the evidence does not support the first count.</p> <p>Marsh. All the books shew it will well support the second.</p> <p>The position is now well Settled, that money had and received will well lie upon a general or special promise to ‘pay to or for a third person. Morgan’s Fssays, 139. Strange, 648. Weaver v. Burroughs.</p> <p>An indebitatus assumpsit lies for money lent or goods sold at his request to a stranger. Comyrfs Digest, yol.T. p. 187.</p> <p>Where the obligor of a respondentia bond, by indorsement thereon, agreed to pay it to any assignee, it was determined that the assignee might maintain general assumpsit for it. 2 Black. Rep. p. 1269. Fanner v. Meares.</p> <p>The doctrine had been established long before in the case of Jones v. Cooper, Cowper’s Reports, p. 227.</p> <p>We have no doubt but a declaration might have been so shaped as to cover the promise; but that is aside of the present question.</p> <p>The question now is, whether the evidence supports the count for money had and received. It is useless to multiply authorities to shew where money has been paid on a contract which fails, that this general count will lie. The cases cited do not apply to the point in contest.</p> <p>The case of Jones and Cooper, cited from Cowper’s Reports, appears not to touch the present question. The point mooted and decided upon in that case was, whether the case was within the statute of frauds. -The dictum in Comyns’ Digest, it is obvious, does not apply. But if it did, it appears to have been grounded on a case in Fentris’ Reports, p. 311. under which that learned reporter has inserted a query, expressive of his doubt of its correctness.</p> <p>The only case which distantly approaches the present is that of Tanner and Meares, in Blackstone’s Reports, and that establishes no such doctrine as is contended for by our opponent, because Meares received the money actually, and the only question was, did he agree to pay it to Tanner or Cox.</p> <p>The Court have the authorities before them. I shall only observe, that the case of Tanner v. Meares is directly in point. The decision of the Judges was, that the promise made by Meares to Tanner might maintained in assumpsit, and that action was not a special action on the case, but a general indebitatus assumpsit for money had and received.</p>

<p>EJECTMENT to recover possession of southwestwardly room, and chamber over it, half of the hall and stairs, in a house in Burlington, erected on Lot No. 21.</p> <p>Plea, not guilty:</p> <p>In this cause the Petit Jury returned a special verdict, January term, 1802....</p> <p>That the fee of Lot No. 21. was on the 29th of April, 1795, and for a long time before had been in Ira Allen. That whilst the fee was in Allen, he contracted with one Joel Woodworth, who was to erect a dwelling-house on the land; and that within sis months after the house should be completed, Allen was to have his election either to pay Woodworth for the house, or to convey the land to him for a price stipulated. That Woodworth erected the house which contained the premises demanded in the declaration. That Allen never made his election, but Woodworth continued in possession until the 22d of November, 1797, when King, the plaintiff, attached the house as the property of Woodworth. That at the February term of Chittenden County Court, he recovered judgment, purchased out his writ of execution on the 4th of March, 1799, and on the 4th day of April following levied it on the premises; which levy, with the writ of execution, &c. were duly recorded in the county and town clerks’ offices, according to law.</p> <p>That on the 29th of April, 1795, Moses and Lucinda Catlin attached a number of rights of land in Burlington, including Lot No. 21. as the property of Ira Allen, upon a writ returnable to the Circuit Court of the United States, holden within and for the district of Vermont. They recovered judgment against Allen, October term, 1798. Execution issued 9th of October, 1798, and on the 29th of November following, was levied on the lands attached, and regular records made according to law.</p> <p>That on the officer’s return of the last mentioned •attachment, reservation is made of the dwelling-house aforesaid, described therein as the property of Joel Woodworth; and on the levy of the last mentioned writ of execution, the said 'dwelling-house was not appraised to the defendant Catlin as the property of Ira Allen.</p> <p>But whether, upon the whole matter aforesaid, in form aforesaid found, the said Gideon King ought by law to recover possession of the premises in the declaration demanded, the Jurors are altogether ignorant, and therefore pray the advice of the Court here,</p> <p>And if upon the whole matter, by the said Juroi's in form aforesaid found, it shall seem to the Court here, that the said Gideon King ought by law to recover possession of the premises demanded in the declaration, then the said Jurors upon their oath do say, that the said Moses Catlin is guilty in manner and form as the plaintiff in his declaration hath alleged, and do find for the plaintiff to recover posses%sion of the demanded premises, with one cent damages, and his costs.</p> <p>And if upon the whole matter aforesaid, by the Jury aforesaid found, it shall seem to the Court here, that the said Gideon King ought .not by law to recover the said demanded premises, then the said Jurors upon their oath afi.-resaid do say, that the said Moses Gatlin -is not guilty in manner and form as the plain.tiif in his declaration hath alleged, and do find for him to recover his costs.</p> <p>At this term, the special verdict was argued and decided.</p> <p>We shall coiisider,</p> <p>First. For what ejectment will lie.</p> <p>Secondly. By whom it may be maintained.</p> <p>Thirdly. What kind of contract will sustain this' action.</p> <p>Fourthly. We shall shew, that by common Iavv any contract, accompanied by livery and seisin, will support ejectment.</p> <p>Fifthly. That there are contracts peculiar to this -country, not known in England, which upon common law principles will maintain ejectment, and the contract between Allen and Woodworth, in whose shoes we stand in consequence of the levy of our execution, would have enabled Woodxvorth, and consequently will enable us to maintain this action.</p> <p>Though the law writers are copious upon the sub-, ject of where ejectment will lie, the whole doctrine-may be summed up in this position: that ejectment will lie wherever a person has been unlawfully disseised of a corporeal hereditament. The complaint in the writ is, that he has been wrongfully ousted of his possession, and wherever this is the case he shall recover in this action.</p> <p>The only reason assigned in the books why this action will not lie for an incorporeal hereditament is, that the sheriff cannot deliver possession under the writ of habere facias possessionem ; therefore, where-, ver a person has been wrongfully ousted of any possession of which the sheriff may deliver him possession, the action of ejectment will well lie.</p> <p>Secondly. It will always lie in favour of him who has the right of entry, whether in fee, for life, for years, or for the shortest term..</p> <p>For it will lie by the tenant against his landlord if his term is unexpired. It will lie for common appendant or appurtenant. It lies, say the books, for a boilery of salt, that is, where a man hath no inheritance in the soil, in which there is a well of salt water, but only a lease or grant of so many buckets of water. Cro. Jac. 150. It lies pro prima tonsura, that is, if a nian hath the grant of the first grass that grows on the land every year, he may recover it in ejectment of him who holds it from him. Cro. Car. 262. Ward v. Petifer.</p> <p>It lies even pro pastura centum ovium, for so much land as will feed one hundred sheep; and though this had been doubted, yet we find it confirmed in Rex v. Pendlerenthide, 3 Term Rep. p. 772. and Bunt V. Moore, 5 Term Rep. 329.</p> <p>In all these cases there is a right of entry in the plaintiff, and the action well lies.</p> <p>Further. An ejectment need not be for an entire thing, as it will lie for the third part of a house. Sullivan v. Seagrove, Strange, 695.</p> <p>As the right of entry is the key-stone to the action of ejectment, it will be well to inquire, whether the plaintiff had this right of entry in the premises demanded. He may have acquired this by contract, or by mere operation of law. The plaintiff acquired this right by the levy of an execution issued upon a legal judgment against Waodxvorth. By this levy he. acquired all the right which Woodworth had at the time of the attachment on the mesne process. Whatr right had Woodworth at such time ? He had contracted with Allen, in whom the fee of the land was, to erect the dwelling-house which contained the demanded premises, and was either to have payment for the building, or the chance of purchasing the soil upon which it was erected.</p> <p>The,question is, did this contract give Woodworth a right of entry ?</p> <p>We shall shew from the books,</p> <p>Thirdly. What contracts will support this action, and the leading principle which governed the Courts in admitting such contracts.</p> <p>In Doe, ex dem. Winkley, v. Pie, Principal of Barnard’s Inn, ejectment lay for a cellar held under a parol contract. Espinasse’s Reports of Cases at Nisi, Prius, p. 364, 365, 366.</p> <p>To shew that the Courts in England will give a very liberal construction to contracts, and allow them to be the grounds of ejectment, we shall read the case of the wine-cellar, Morgan’s Essays, vol. 2. p. 340.</p> <p>The case of Lord Abington, same authority, p. 345. 343. shews, that where the intent of the parties is, to make a lease, it shall be so considered, though unaccompanied with those formalities which a more rigid construction of the law would render necessary. Though the case of Right, ex dem. Green, v. Proctor, was decided against the plaintiff, yet all the Judges -considered it to be law, that a license to inhabit amounted to a lease. Burr. Rep. vol. 4. p. 2208. Baxter, ex dem. Abrahall, v. Brown, Black. Rep. vol. 2. p. 973, 974. A promise to give a lease, accompanied with possession, was ruled to amount to a lease.</p> <p>In Bacon's Abridgment, vol. 4. p. 160. Gzvil. edit, we have the doctrine, that it may be laid down as a general rule, that whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession, and the other came into it for such a determinate time, such words, whether they run in the form of a license, covenant, or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually as if the most proper and pertinent words had been made use of for that purpose.</p> <p>So, if one (p. 161.) only license another to enjoy such a house or land till such a time, this amounts to a present and certain lease, and may be pleaded as such, though it may be also pleaded as a license; and if it be pleaded as a lease for years, and traversed, the lessee may give the license in evidence to prove it.</p> <p>In p. 163. of the same author, one said to another, “ You shall have a lease of my lands in D. for twenty-one years, paying therefor 10/. per annum. Make a lease in writing, and I will seal it.” This was agreed by all the Justices to be a good parol lease for twenty-one years, though no writing was made of it; (being before the statute of frauds;) for the intent of the parties was sufficiently expressed, and the making of it in writing was but for further assurance, and left to the lessee if he thought it necessary.</p> <p>Mr. Marsh cited also, Runnington on Ejectment, p. 9, 10. 24. 33, 54, 35 and 36.</p> <p>These authorities, and many others which may be .produced, go to shew, that the law will in trials of ejectment favour contracts made by parties, even against third persons, and that</p> <p>Fourthly. The leading principle is, that where livery and seisin is made, that is, where possession is given by him who has the right of entry, the intent of the parties in any contract shall be carried into effect, and ejectment will lie as a remedy to the injured.</p> <p>It is true we cannot produce a case exactly in point, but it is obvious,</p> <p>Fifthly. That there are many contracts respecting ■lands and buildings, which grow out of the state o£ society in this country, which are unknown in England, but which, in furtherance of justice, must, if they have not already, be supported by the decisions of this Court. A man executes a bond conditioned to convey a lot of land in a wilderness state to another upon the payment of a certain sum by instalments. The obligee goes immediately into possession. At great labour and expense he clears the land and erects buildings upon it, and his expenditures, before the last instalment becomes due, surpass the price stipulated for the land. Will not this bond be considered as a lease ? Will it not enure against a third person, to whom the obligor might pass the land by deed ? or, if set off by execution, could the creditor take more interest in the land and buildings than the debtor possessed ? In such cases, must the obligee be obliged to look solely to his bond ? and if the obligor becomes bankrupt, lose his labour and expenditures in the erection of buildings ? Or in ejectment will not this Court decide, that the obligee has an interest in the land and buildings in which the law will protect him; that as the covenant was accompanied with actual possession, which amounts to livery of seisin, a third person, who might take-a deed from the obligor, or who might have the land set off to him caí execution, should not hold against him; the grantee or the judgment creditor acquiring by the deed or the levy no more interest in the land and buildings than the original holder had.</p> <p>The case in the special verdict is one very common, if not peculiar to this country, and calls loudly for judicial interference; and we consider it fairly embraced by the principles and practice which sustain ejectment at common law.</p> <p>In days of ignorance, the old maxim of cujus est so - lum ejus est usque ad coslum prevailed; but it has been almost entirely done away in the more modem and more enlightened sera of English jurisprudence. The common, principles of justice always required, if the owner of land gave another a license to erect a building upon it, subject to a future election by the owner whether to pay for the biddings or vend the land, that the interest in the buildings, and such possession of the land as is necessary to the enjoyment of it, should be secured to the architect until the fulfilment of the contract, and that such interest of the architect in the buildings should not be defeated by the conveyance of the land to a third person, or by the interference of the creditors to the land owner. .</p> <p>We therefore consider, that by the common law the contract relied .upon is such as gave to Wood-worth, in whose shoes we stand, a right of entry into the'premises demanded; that the possession of Wood-worth was such, that he might have possession delivered to us by the sheriff under the writ of habere facias possessionem; that he could, and we can on ouster maintain ejectment upon it; that by the principles of the common law, the contract between Woodworth and Allen being accompanied with livery of seisin or possession, is a contract upon which ejectment can be maintained against a third person; that the Court will, in conformity with the English decisions, carry the intent of the parties into effect, and decide that the law so is that the verdict shall be recorded in favour of the plaintiff.</p> <p>The true question is, has the contract between' Allen and Woodworth so vested the property of the dwelling-house in Wood-worth, that he could have maintained ejectment against the judgment creditors of Allen, when set off to them by execution, or rather, whether the creditors of Woodworth can maintain it against the creditors of Allen.</p> <p>We consider it of small import which way this question would be decided on common law principles ; but we will so far notice the cases cited as to observe that they are not in point.</p> <p>The case quoted in Morgan's Essays does not touch the present question. The point in contest there was simply who owned the wine-cellar.</p> <p>But allowing Mr. Marsh the full force of the authorities, they amount to no more than that certain contracts shall hold in ejectment against the contractor, but in no case against a third person. In the present case, Woodworth might possibly have maintained ejectment against Allen, if he had been ousted before the attachments; at least he might have had relief in Chancery to compel a specific performance of the contract; but their private agreement shall not even by the common law affect their creditors. It is observable, that in the case of Lord Abington, quoted in Morgan's Essays, the Judges doubted whether the contract there in question could affect a third person.</p> <p>But we consider the common law principles, be they as they may, controlled by our own statute.</p> <p>By our statutes, livery of seisin is done away. Whether the land passes by deed, or is set off on execution, the perfecting the deed or the levy passes the land without further ceremony, and with the land passes all its appurtenances.</p> <p>Section 5. of the act regulating the conveyance of real estates, and for the prevention of frauds therein, enacts, “ that all deeds or other conveyances of lands, tenements or hereditaments, lying in this State, signed and sealed by the party granting the same, having good and lawful authority thereunto, and signed by-two or more witnesses, and acknowledged by such grantor or grantors before a Justice of the Peace, and recorded at length in tire clerk’s office of the town hr which such lands, tenements and hereditaments lie, shall be valid to pass the same without any other act or ceremony whatever.”</p> <p>Here the whole doctrine of livery of seisin is done away. The land passes by the deed, and immediately upon its execution possession attaches to the grantee as against the grantor and his heirs, and upon the record of it, against all others claiming under him or them,</p> <p>Perhaps it may be said, that in decisions under this statute, if a second purchaser knew óf á former deed, though not recorded, he shall not hold against the first grantee, though his deed be recorded first; and it may be insisted, that Catlin, the defendant, knew of the contract between Allen and Woodworth. But we consider that there is a wide difference between a creditor and a purchaser. The purchaser can have no moral inducements to interfere with and defeat a prior contract; but a creditor is at all times countenanced in his vigilance to secure an honest debt. If I know that my neighbour has taken a deed of land, I ought not to defeat his title by a subsequent purchase, and the procuring my deed to be first recorded. But if we are both creditors, and I know that he has taken out a writ to attach the land of our debtor, I may lawfully and honestly hasten to secure my own debt by a prior attachment, and the law will favour the most vigilant.</p> <p>Section 3. of the act directing the levying and serving executions, expressly vests the title of the land in the creditor. “ All executions extended and levied upon any houses, lands or tenements as aforesaid, with the return of the officer thereon, being recorded in the records of lands of the town in which such houses, lands or tenements are situated, or in the office wherein deeds respecting the same are required by law to be recorded, and also returned into the office of the Clerk of the Court or Justice of the Peace from which such execution issued, and there recorded, shall, as against such debtor, his heirs and assigns, make a good title to the-party for whom such estate was taken, his heirs and assigns for ever.”</p> <p>An attempt is made to scout the old maxim of cujus est solum, he. but if this maxim is to be abandoned, all the respect shewn by the common law and by various statutes, to real in preference to personal estate, will be done away. While the soil remains sacredly secured to him who holds the fee by the solemnities requisite in passing the same, it may be covered with buildings with various owners, who may claim the same, if the doctrine contended for be correct, by various unrecorded and even parol tenures. The whole object of our statute of frauds is to guard the rights of third persons, and to protect them from imposition; and it is well worthy of consideration whether this object can be secured if this venerable maxim of the common law be abandoned. A purchaser might then inspect the record, find the fee of a lot of land in the grantor by a succession of well authenticated deeds from the sovereign, and when he had parted with his purchase-money, and his grantor had become bankrupt, so that he could not avail himself of the covenants in the deed warranting the land to be free of all incumbrances, might discover that the buildings, which he considered as the most valuable part of the purchase, were owned by another, and be exposed to be ejected from his own fee by the possession of the buildings, which is given to the plaintiff in ejectment.</p> <p>But it seems the plaintiff inclines to consider the contract between Allen and Woodworth as a lease. But a lease not recorded would expose a third person to the same imposition as a parol contract. I may convey the fee, and my grantee be afterwards surprised by a lease which I had executed for 999 years. This would completely defeat the statute of frauds, but it would be more incongruous to admit of such a lease as operating upon the buildings whilst my grantee had the fee of the land.</p> <p>On the whole we contend, that though the contract' between Allen and Woodworth, as relative to each other, might have been sanctioned in ejectment, yet it can never affect a bona fide creditor to Allen; and by the levy of our execution we hold the fee of Lot No. 21. and have a right to the possession of it, with its appurtenances.</p> <p>It seems to be granted, that by common law ejectment would have lain in favour of Woodworth against' Allen, if the former had been ousted by the latter; but it is contended, that the plaintiff cannot as a third person maintain it. This will naturally lead to the inquiry into, what rights we acquired by the levy of our execution. Our levy was on the 10th of April, 1799, and was made under the statute of 'March 7th, 1797, entitled, an act directing the levying and serving of executions. This statute is familiar, and without investigating it particularly we confidently assert, that in all cases where an execution is levied on houses or lands, all the interest which the debtor held in them at the date of the levy passes to the creditor. All the rights, and no more, which the debtor held at such time, are vested by the levy in the creditor. What interest, what rights had Woodworth in the premises demanded? It appears, that the fee of the land was in Allen. He contracted with Woodworth, that if he would erect a house on the land, when it was finished he would pay for the house or sell the land to him. The possession of the land was therefore delivered to Woodworth, who had a qualified interest both in the house and land, and had a legal as well as equitable right to retain possession both of.the land and building until the contract had been fulfilled by the election of Allen to pay for the house, or vend and convey the land. Before this election was made, the creditors of Woodworth and Allen both attached. We attached the house as the property of Woodivorth, and acquired by the levy of our execution all the interest, all the rights, both in the house and land, which Woodworth had possessed.</p> <p>The defendant, in the right of his wife, attached the lands as the estate of Allen, and acquired, by the levy of his execution, all the interest, all the rights, which Allen had at the date of the levy. Sensible that the property of the dwelling-house was never in Allen, the defendant, as appears by the officer’s retunvóE the writ, excepted it in his attachment, describing it as the property of Woodworth, neither was it appraised to him in the levy of his execution.</p>

<p>THE defendant filed his complaint for the non-entry of a writ of error.</p> <p>Judgment of the County Court affirmed.</p> <p>And now the defendant contended for the computation of interest from the day of the rendering the original judgment.</p>

<p>when the apfaulted, the ap" me ^complaint í^non entry* “^t^'ancuims recover 12 per cent, as increase of damuftS’take his cdsts in Iheacl tl0n :iPPeaM'</p> <p>A default entered on the docket is not conclusive until the rising of the Court.</p>

TRESPASS on the case, for an escape. The declaration sets forth, that the plaintiff, on - 1 the 10th day of July, 1795, purchased out his writ of attachment • against one Benjamin Barnes, returnable before Boswell Hopkins, Esquire, one of the Justices of the Peace within and for said County, on the 18th of said July. That he committed this writ to Azariah J Painter: the sheriff’s deputy, who arrested the body , , J of 'Barnes, and took one Risden as bail.

BENJAMIN BROWN was attached to answer unto William Fisher, in a plea of the case for this, to wit: That whereas, on the 7th day of February, 1798, at Orwell, in the County of Rutland, he the plaintiff was lawfully possessed of a certain bay horse; and that, at the time and place aforesaid, the defendant applied to and solicited the plaintiff to sell to him the said horse; and did then and there faithfully promise and engage to the plaintiff, that he the defendant ivas a man…

ACTION on book account, Judgment to account entered at the last term; and Enoch Woodbridge, Esquire, Argalus Harmon, and Belden Seymour, appointed auditors to examine and adjust the accounts between the parties, and report at this term.

<p>A lease made by the husband during* cov erture, of land held in right of bis wife, of which she had been endowed in consequence of a prio** marriage, cannot enure against the woman after a divorce a minado matrimonii, but may be considered sub modo so far as to secure the baron’s tenant in his emblements, upon the determination of the lease by the divorce.</p>

<p>On an indictment for forgery 'and verdict guilty> the Court will not grant a new trial grounded on motion for new and material evidence, because the delinquent’s wife has since the verdict 'confessed that she perpetrated the fact without the privity of her husband.</p>

TRESPASS. The plaintiff in substance de~ blared, that he was possessed of a farm of 290 acres -of land in Weybridge, bounded on Otter Creek; that the defendants, between the 4th of May, 1797, and the 7th of August, 1799, erected dams at the head of die falls on Otter Creek, within the city of Vergennés, which occasioned an unusual rising of the waters, and caused them to overflow his lands, whereby his crops were destroyed, and his farm otherwise injured, ad damnum.

<p>Indebitatus assume sit for monies had and received.</p> <p>Issue in fact joined and submitted to the Court.</p> <p>Statement of facts.</p> <p>It is agreed by the attornies for the parties on record in the above suit, that the defendants did promise the plaintiff to pay him the interest of two sums of money contained in two writs of execution, in favour of the plaintiff and against the defendants, foi' and during the time the plaintiff had delayed the collection of said executions, on application and at the request of the defendants.</p> <p>The questions made were,</p> <p>First. Whether a promise of this nature could be embraced in a general count of indebitatus assumpsit for money had and receivedand if not,</p> <p>Secondly. Whether the express promise cóuld be shewn in evidence in support of the general count.</p> <p>John Cook. The plaintiff has declared in general indebitatus assumpsit. If he can maintain his action it must be upon an implied promise in the defendants to pay the sum demanded, growing out of the equity of the case.</p> <p>The elementary and systematic writers are full upon this subject. They have pointed out all the variety of cases in which the action upon implied assumpsit will lie, and none of them compare with this case. Neither after assiduous search can we find a single authority or even dictum of a Judge, countenancing a recovery upon an implied promise of this novel kind.</p> <p>Neither does it grow out of the principle of implied promises, which rests on the obligations of natural justice. When I loan a man my property, natural justice requires he should return it, but not that he should render me interest for the usufruct; for the interest of monies is a creature of the municipal' law,- and often thwarts the principles of natural justice.</p> <p>If my unfeeling creditor, who is pursuing me by lerai process to prison, should for a time slacken his . . . . . avaricious pursuit, the law will not imply m me a promise to pay him for this semblance of humanity, when perhaps his object was not to favour me, but to first make his debt certain by judgment, and then by the terrors of his writ of execution compel the sacrifice of my property, or payment of usury, or by a succession of suits from term to term, to recover the interest supposed to accrue on his judgment, oppress me with costs,</p> <p>If this action will lie in this case, it will lie in every case where a creditor suffers his judgment to remain without taking out his writ of execution. It will gender a multiplicity of vexatious súits, and go abreast of all former practice, which has been in cases where, through the lenity of the creditor, or other causes, the judgment has rested dormant so long as to make the interest an object to bring debt or scire facias upon it, and have the interest included in the second, judgment.</p> <p>It bfeing therefore clear, that an action on implied assumpsit will not embrace this case, the plaintiff, aware of this, attempts to buttress his declaration by shewing an express promise.</p> <p>If the plaintiff relies upon an express promise, he ought to have brought a special action on the case; for in declaring upon an express assumpsit it is always necessary to set out for what the debt became-due, and not generally that being indebted he or they promised to pay, &c. and the breach assigned in the declaration should always follow the undertaking. stated. Esp. Dig. p. 134, 135. Fin. Abr. vol. 1. p. 270. Com. Dig. vol. 1. p. 188.</p> <p>There appear cogent reasons for obliging the plaintiff to set forth an express promise at large in his der claration.</p> <p>First. That the defendant may be prepared for his •defence.</p> <p>Secondly. That the Court may judge whether the .promise can be sustained in law.</p> <p>Thirdly. That the promise being spread on the record, the defendant may plead the judgment rendered upon it in bar to an after suit,</p> <p>There can be no doubt that where an action upon an implied promise will lie, an express promise may be shewn under a general count, for it will not lessen or do away a promise which the law implies that a man has made from principles of equity, to shew that he has been honest enough to confirm it by his word.</p> <p>We contend that the action of implied assumpsit well lies here, The defendants owed the plaintiff several sums of money. When these sums were reduced to judgment debts, the interest was suspended, but non constat that it ceased to accrue in equity 5 for this suspension of interest arose ex necessitate rei, for on debt on judgment the Court would include the interest from the first to the second judgment. This second judgment of the Court is not founded on contract or expi-ess promise, but arises out of the equity of the case, and shews, that the Courts consider that there is an obligation of natural justice binding upon the defendant to pay such interest. The plaintiff here delayed the levy of his writs of exeeiu. tion, and was damaged in his interest by so doing ; and surely, though this particular case is not noted in the books, the general principle will apply; and the interest of the several sums accruing upon the judgments will be considered by the Court as monies of the plaintiff in the hands of the defendant, •which in equity and good conscience they ought to refund him.</p> <p>The reasons rendered why we should have declared specially are done away by the statement of the evidence signed by the counsel, and made part of the record. From this statement the defendants might be and were prepared for their defence. The Court could judge of the legality of the contract, and the defendants may be able to plead the judgment in bar to a future suit.</p>

PLAINTIFF declared in a plea of trespass quare tlausum fregit, and taking away sundry horned cattle, ad damnum, 300 dollars.

<p>THE defendant had been arrested and examined . before Mr. Justice Horton upon a charge of wilful . , , . „ . and corrupt perjury, upon the complaint oí AmosColvin, 2. private informer. The Justice ordered the defendant to recognise with surety in 500 dollars for personal appearance at and before the Supreme Court now sitting. Upon his failing to procure bail, the magistrate issued a mittimus, and returned attested copies of his proceedings into Court.</p> <p>The defendant came into Court in the custody of the officer serving the mittimus, and moved to be discharged, and that the process might be quashed.</p> <p>First. Because the complaint was made by a private informer, not under oath,</p> <p>Secondly. That a private informer could not legally prefer a complaint of this nature.</p> <p>Upon inspection of the copies of the proceedings of the justice, it appeared, that the complainant had recited in his complaint that it was made on oath; but there was no certificate by the Justice pf his having administered any oath, and in the capias it was not set forth that the complaint was made under oath, but in the mittimus it was.</p> <p>The personal liberty and reputation of the subject are held so sacred, that by the common law no warrant to apprehend any person for a crime can issue without oath, either personal or official. Hale’s. Pleas of the Crown, p. 595.</p> <p>The eleventh section of the State Constitution re-. probates in express terms warrants issued without oath or affirmation. Perhaps some reliance may be had upon the recital in the complaint and mittimus, that the oath was administered; but the former must-be considered as mere form, or at most as the unofficial assertion of the complainant, the latter but a mere recital of the caption of the complaint, and neither pan amount to that which can only be considered as evidence of the oath, which is the Justice’s certificate of the administration of the oath to the complainant of date precedent to the issuing of the capias.</p> <p>We contend the position totis viribus, “ that at common law every warrant for the apprehension of persons charged with crimes by a private informer, must be supported by complaint under oath,”</p> <p>There are some crimes so aggravated, and the immediate apprehension of the criminal is so apparently for the safety of society, that he may by common law be apprehended even without warrant, and these include all cases of atrocious felony; and what crime is more felonious or baneful to society, than perjury ? a crime which not only injures individuals, but pollutes the stream of justice at its very fount. It is the duty of all good people, whether in or out of office, to bring such offenders to condign punishment; and if any one, as a private informer, prefers his complaint to a magistrate, it is in the sound discretion of the magistrate to issue his capias with or without the oath of the complainant. The crime may be of such magnitude, that a faithful and prudent magistrate, to prevent escape, may order the immediate apprehension of the offended without warrant, and promulgate a hue and cry. In another case he may, from his personal knowledge of the complainant’s character for veracity, issue his warrant without oath made. In some cases he may require the oath of the informer; and in all cases it is a subject of discretion to be exercised by the magistrate at the time of issuing the capias, and the process cannot afterwards on this account be impeached.</p> <p>Sergeant Hawkins says expressly, “It is safe to set forth, that the party is charged upon oath; but this is not necessary.” Hawk. P. C. vol. 2. c. 16. s. 17.</p> <p>We had hoped more candour in our opponent than is discovered in his reference to the State Constitution ; the eleventh section of which does not reprobate warrants without oath or affirmation generally, but is directed against a particular species of warrants.</p> <p>A people, like individuals, will as frequently guard against those evils which they dread, as against those they feel or have occasion to dread. By our successful struggles for independence, from colonies we have become a nation; and it is curious to observe, that all the State Constitutions bear the marks of our former political servitude. The evils we feared or experienced as colonists, are scrupulously guarded against by bills of unalienable rights, when to the reflecting mind it is apparent, that few or none of those evils are experienced or to be apprehended in our state of sovereignty.</p>

<p>IN the trial of this cause, issue to the Jury. Plaintiff offered the deposition of James Robinson, since deceased.</p> <p>objected to the reading of it in evidence.</p> <p>It was conceded by the plaintiff’s counsel, that if the deponent was alive the deposition could not be read, as it was drawn up in the hand-writing of the plaintiff’s attorney, and taken by a Justice of the Peace interested in the cause. But,</p> <p>that a voluntary affidavit or deposition extrajudicially taken, might be read on the decease of the deponent; and cited 1 Ld. Raym.. p. 744. Tilly v. C — , Vol. 2. ib. Price v. Earl of Tor~ rington, p. 873. Ib. 1166. 1 Strange, p. 35. StyL p. 446. Sacheverel v. Sacheverel. 2 Strange, p. 1129. margin, Warren, ex dem. Webb, v. Grenville. And as advisory, Roofs Reports, p. 81. Roy v. Brush.</p>

IN ERROR. ' This writ was brought to reverse a judgment of Orange County Court, rendered December term, 1800, in favour of the now defendant against the plaintiff in error. In the original declaration, the plaintiff counted on a promissory note for 70 dollars, and added another count for Jive dollars, money advanced and lent. Judgment rendered on default.

<p>In an action brought against a surviving partner upon a promissory note, alleged to have been signed by the deceased partner in his life-time, in the name of the firm, proofs of his confession that he signed it, admitted to be given in evidence.</p>