Volume 10 — Vermont Reports

<p>A township is granted in sixty-nine equal shares, among which is a grant to His Excellency, Benning Wentworth, Esq., of a tract, as marked, 1 B. W.’ in the plan, to contain five hundred acres, which is to be accounted two of the within shares; the shares of Gov. W. not being marked in the plan, as designated in the charter.</p> <p>Held — That the grant was not void for uncertainty — and that Gov. W. took, by the grant, two shares, as tenant in common with the other grantees.</p> <p>If more than 500 acres are set to the Governor’s right, in the division of the town, a stranger to all proprietary title cannot object to such division.</p> <p>A feme covert cannot, either separately, or jointly with her husband, execute a valid power of attorney, to convey lands, held in her right.</p>

This case was submitted to the county court upon the following case stated. Rice Dean had his settlement with his father, John Dean, in Bethel. In the year 1824, he became of age, at which time he resided in Royalton. In 1827 he was married, and, after his marriage, he continued to reside in Royalton till the ' year 1829, when he rented a house in Tunbridge, for three years, and removed there with his family, and went to work on a contract that was to be continued one year.

<p>A verdict, taken by consent, on one of several pleas, will not deprive the party, against whom it is taken, of the benefit of his averments in other pleas, which are demurred to.</p> <p>A sale, by partners, of the partnership effects to a third person, and a subsequent dissolution of the partnership, and an assignment, from one of the partners to the other, of all his interest in the partnership, the assignee taking all the partnership effects into his own hands, operates as a discharge, by the act of the parties, of a covenant of the assignor, previously made with the assignee, to pay the debts of the partnership, out of the partnership effects.</p> <p>A partner purchases of his co-partner, all such co-partner’s interest in the company property, and gives a bond to pay all the debts of the company, and to indemnify such co-partner from all damages and costs arising from such company debts ; such bond, to prevent a circuity of action, operates to control a previous covenant from the obligee to the obligor, to pay the debts of the partnership out of the partnership effects.</p> <p>As the law does not presume fraud, it is not to be inferred by argument.</p>

<p>This was an aetion of trespass, for breaking and entering the plaintiff’s close, in B.arnard, and cutting timber.</p> <p>Plea — Not guilty.</p> <p>The locus, in quo was a strip of land, lying between two lines, one running from a birch tree, in the N. W. corner of lot numbered 28, (as claimed by the plaintiff,) southerly; the other, from a point east of said birch tree.</p> <p>On the trial of the cause, in the County Court, the plaintiff gave evidence of title, in those under whom he claimed, to lot No. 28, in the town of Barnard, which is spoken of in the deeds, as “York land.”</p> <p>The defendant gave evidence of title, in those under whom he claimed, to lot No. 18, lying west of, and adjoining, lot No. 28, or the “ York lands,”</p> <p>The plaintiff contended, and gave, evidence tending to show, that the dividing line between these lots, commenced on the north side of plaintiff’s lands, at a certain “ birch, tree,” and ran southerly therefrom.</p> <p>The defendant contended, and gave evidence tending to. prove, that the true division line was considerably east of the “ birch tree,” The evidence offered by the plaintiff tended to prove, that in April 18,14, Brace Jones, (under whose deed, dated July 4 1835, the defendant claimed title to the land in question,) being the owner of lot No. 18, conveyed to Shiverick Crowell, twenty acres in the north east corner of lot No. 18, by metes and bounds, and in that deed, the “birch tree,” and the line to which the plaintiff claimed, were recognised and adopted, as the north-east corner, and east line, of said lot; that, in September 1814, Solomon Aikens, claiming to be the owner of lot No. 28, or the York land, ' conveyed to Nathaniel Page, jr. thirty acres of the west part of lot No. 28, extending across the lot, from north to south, which includes the disputed tract. In that deed, also, the “ birch tree,” and the line leading from it, south, are given as the western boundaries of the tract conveyed; that Page took possession, under his deed, and immediately commenced clearing on the north part of this tract, between the two lines aforesaid, and cleared to the “ birch tree” corner, and that a possession, and an improvement had ever since been continued there, by Page, and those claiming under him ; that no clearing had ever been made, on the south part of said tract, where the trespass was committed; that the title and possession of Page had come down to the plaintiff, and that the plaintiff had acquired a title, through a chain of conveyances, to the 20 acres opposite, being that part of lot No. 18, deeded by Brace Jones to Shiverick Crowell in 1814; that ever since 1814, the plaintiff, and his grantors, have claimed to own to the “ birch tree,” and the line extending south therefrom, and that during all that time, until within the last two or three years, Brace Jones, the defendant’s grantor, acquiesced in said corner and line, believing them to be the true line and corner of his lot No. 18.</p> <p>The plaintiff requested the Court to charge the Jury;— That if they believed from the testimony, that the plaintiff, and those under whom he claimed, had occupied and improved the northerly end of the disputed tract, as before stated, more than fifteen years before the commission of the alleged trespass, the deed from Brace Jones to Shiverick Crowell, of the 20 acre piece, made in 1814, recognizing the line, as contended for by the plaintiff, in connexion with the acquiescence of the owners and occupants of the two lots, ■numbered, 18 and 28, in such recognition, for more than fifteen years, was conclusive, as to the line dividing said lots, and that the plaintiff was entitled to recover. But the Court instructed the jury —that the evidence did not-establish any conclusive acquiescence of Brace Jones, affecting the southerly and unimproved part of the disputed tract, where the trespass was committed, .and that their verdict should depend on the question which of the lines was the original and true division line between the two lots.</p> <p>The Jury returned a verdict for the defendant.</p> <p>To the foregoing charge of the Court the plaintiff excepted.</p> <p>The charge of the Court below to the Jury, would have been correct, if the plaintiff, and those under whom he claims, had merely a naked possession of the land, without any definite boundaries. In such a case, the actual clearing, or some visible marks of actual possession, would bound his claim.</p> <p>But, when a person takes possession under a deed, and the land is described in the deed by metes and bounds, his possession (in the language of the late Judge Patterson in a similar case) is co-extensive with his deed, and he possesses his wood land as much as he does his clearing.</p> <p>This doctrine was recognized in the case of Hull v. Fisher, 7 Vt. R. 100; see also Prescott et al v. Kevins et al, 4 Mason’s Rep. 326.</p>

<p>This was a qui tarn action, brought by the plaintiff, a creditor of Elwood Irish, to recover of the defendants, the penalty of the statute against fraudulent and deceitful conveyances.</p> <p>Plea — Not guilty.</p> <p>On the trial of this cause, in the County Court, the plaintiff, in support of the issue on his part, gave in evidence four several deeds from Elwood Irish to the defendants, of lands in Shelburne, Charlotte, Starksboro’ and Fayston, all dated Oct. 20,1833, and also, a bill of sale of sundry personal property of the same date. The plaintiff also introduced said Irish as a witness, who testified that he was indebted to the plaintiff, on the said 30th of Oct. 1833, to the amount of about thirty or forty dollars, that he was in possession of considerable property and owed a good deal at that time, but supposed himself good; that he was on terms of friendship with the defendant, Clayes, and was indebted to him to the amount of about $5000, for which he had executed to him a mortgage a few days previous, viz. on the 25th of the same October, of the principal part of the real estate in question. That after the execution of the said mortgage, the defendant came to him (Irish) and represented, that all his (Irish’s) creditors were about to sue him, and attach his property; that he would be sued for every debt, down to one dollar; that he needed a friend to step, into the boat with him, and take a conveyance of his property to prevent a sacrifice of it; that Clayes proposed to step in, as a friend, himself, in connexion with the defendant, Morse, and that witness consulted with the defendants. The next day, they came to witness’ house, and took a schedule of the property; that witness then proposed to them to buy in earnest, but Morse said he had land enough already, and had more stock than hay, and Clayes said he could make more money otherwise ; witness made the conveyance, and Clayes gave up the notes secured by his mortgage. It was agreed, that they should go to Burlington, and that Clayes “ should take money out of the Bank, and pay me, and I could hand it back.” When they got to Burlington, Clayes proposed a different way, viz. to give up the notes which he held against witness, and witness should pay interest on the amount. Morse was reluctant to go into the business, but Clayes said, it was necessary to hold Morse, “ to make out a strong team.” Witness was absent from home á short time, and on his return, found that the defendants had made a “general sweep” of his property; that he remonstrated with the defendants; and Clayes said, they must frighten the creditors, and buy up the debts at a discount. Witness told them to bring in all the debts, and he would pay off all of them in property at an appraisal. Clayes then said, “ we may as well tell you first as last, that you have got no property for yourself, or creditors; we have got the papers to show.” At the time of the transfer, the witness proposed to take a paper back, showing the agreement, but Clayes said it would not do; that the conveyance was all, or nearly all, of his property, and that the object was to prevent attachments by his creditors, and consequent sacrifice. This witness also testified to the value of the property conveyed, which, at his estimate, would amount to about $17000, or $18000.</p> <p>On cross examination, the witness testified, that at the time of the transfer, the real estate was incumbered by the mortgage to Clayes, as stated above, and also portions of it were incumbered by previous incumbrances, viz. a mortgage to one Perry, for $1500, a mortgage to one Seymour of $800, and a mortgage to the trustees of Deming’s estate of about $ 900; — that he was also indebted to the Bank of Burlington, in the sum of $150,00, and to the estate of O. Bu-ell, to the amount of $800, for the larger portion of which Clayes was previously bound ; — that the personal property Was attached, to secure the debts to Buell & Perry ; that there was, also, a previous mortgage to Burritt, on which was due $183,00, and an execution in the hands of Bliss, Sheriff, secured on the personal property ; all which debts Clayes, at the time of the conveyance in question, agreed to pay, and to advance the money, if necessary ; that Clayes did pay them in a short time after, and that he was authorized to sell property to pay the debts.</p> <p>He further testified, that it was not his intention to defraud his creditors, but that he calculated to have all his debts paid. That the agreement was, that the defendants should stand by him as assistants, turn the property, and appropriate the avails to the payment of debts, as fast as the property was sold; keep an exact account, advance money if necessary, and when the business was closed, to return the surplus, if any ; that witness was to allow interest on the amount, and that there was no debt, which was not to be paid, if there were means of paying it.</p> <p>The plaintiff further gave evidence, tending to show the declarations of Clayes, made after the conveyance, that he J * had “ stepped in” as the friend of Irish, and would stand by him, that he had taken the conveyance to prevent the property being sacrificed, that the object was to sell the property to the best advantage, and not to have it sold at a sacrifice, that they did it for Irish’s benefit, &c. and in one instance, when he went to take possession of certain property, that he declared, that he was looking it up, to take care of it, so that the creditors should not get it; that if he did not, it would be attached, and one of the witnesses, who testified to this declaration, added, that Clayes declared that they were going to turn out the property, to pay debts. The plaintiff, also, introduced sundry witnesses, to prove the value of -the property conveyed, whose testimony, tended to prove the value to be from $17,000, to $18,000; whereas, the amount of the notes due to Clayes, together with the debts paid by the defendants, was about, $ 10,000. The de-r fendants gave testimony, tending to prove, that at the time of making the conveyance, the defendants, as a consideration, therefor, gave up the notes to Clayes, which were secured by mortgage as stated above, and also undertook to pay the debts to Seymour, Perry, Buell’s estate, Deming’s estate, and to Bliss, mentioned above, and insisted that the transaction was a bona fide and actual purchase of the property, by the defendants, in consideration of giving up said notes, and payment of the several debts above enumerated.</p> <p>The defendants also introduced sundry witnesses, whose testimony tended to show, that the value of the property, did not exceed the consideration paid, but according to the valuation of some of them, the value thereof, fell considerably short of the consideration.</p> <p>The estimate, of the defendants’ witnesses, who had attempted a full appraisal, placed the value of the property, at about $9,400.</p> <p>The, counsel for the plaintiff requested the Court to charge the Jury as follows</p> <p>1. If the jury found that Elwood Irish was largely indebted to various individuals, and that he had attachable property, sufficient to pay his debts, and that well known to the de-. fendants, and they or either of them, represented to the said Irish that his creditors were about, to secure their debts by attaching- his property, and offered to take an absolute conveyance of said property, and did, in fact, take such conveyanee, and justify it as bona fide, for the purpose of preventing attachments by the said Elwood’s creditors, and for the purpose of enabling him to withhold his property from his creditors, until it could be sold at private sale, without sacrifice, to raise money to pay off his, the said Elwood’s, creditors, the transaction was fraudulent and within the statute.</p> <p>2. If they found that it was expressly agreed ¡.between Irish and the defendants, by parol, at the time of the conveyance, that the defendants should take an absolute conveyance of all his property, both real and personal, and justify it as a bona fide sale to them, for-the purpose of preventing attachment of said property, by the creditors of the said Elwood, until they or the said Elwood should dispose of the same at private sale, without sacrifice, to raise money to pay the creditors of the said Elwood, the transaction was fraudulent and within the meaning of the statute.</p> <p>3. If they found that the defendants received the conveyance of the property of the said Elwood, for the purpose of avoiding any right, debt, or duty of others, and to prevent the creditors of the said Elwood from attaching said property to secure their debts, when they chose, the transaction was fraudulent, and within the statute, although they should find that, when the defendants received said absolute conveyance, it was agreed by parol between the said Elwood and the defendants, that they should claim to be bona fide owners of said property, only for the purpose of preventing attachment by the creditors of the said Elwood, ánd that the defendants should dispose of said property at private sale, without sacrifice, and pay out the money raised by such sales to the creditors of the said Elwood or,</p> <p>4th. If they found that the defendants made use of the mortgage debt due Clayes from Irish, as a valuable consideration to enable Irish to withhold his property from his creditors, it was a fraudulent transaction, within the statute, and the plaintiff should recover the full value of the property conveyed, without deducting said mortgage debt from the value of the estate conveyed by .Irish to the defendants ; — or,</p> <p>5th. If they found that the personal property, which the defendants received of the said Irish, on the 30th of Oct. 1833, should go to reduce the debt due Clayes, when the defendants received said conveyance, or to pay off the incumbrances on the real estate, conveyed to them by the said Irish; — that, in either case, this action was sustainable.</p> <p>The Court charged the jury, among other matters:— That in order to subject the defendants to the penalty in this action, it must appear- that the actual intent and purpose of the defendants was corrupt and fraudulent; that the motive was dishonest and the object fraudulent; that the design must have been, ultimately, to defraud the creditors, and such must have been the tendency of the contract; that the fraud in this case, if any, must have consisted in securing the property to Irish, to the ultimate exclusion of his creditors; that the question in this case was, was it the purpose of the defendants in this transaction to defraud the creditors of their debts, and was such the tendency of the contract ? That the criterion is the intent of the parties at the time of making the contract, and the character and tendency of the contract,as it was then understood by them; that the first question on this point, upon the evidence, was, whether this conveyance was to be regarded asan absolute conveyance, as contended for by the defendants, or a conveyance upon trust, as contended for by the plaintiff:— That it was in form an absolute conveyance, and if the jury were satisfied that it was in good faith, without any design to defraud or injure creditors, and that a valuable consideration was actually paid, they must find a verdict for the defendants. But if, on the other hand, they were satisfied that the pretended consideration was merely colorable, and the design was to secure the property to Irish for his use and enjoyment, to the exclusion of his creditors, then the case was with the plaintiff. That on this point the value of the property conveyed was material, for if they found the consideration, pretended to be paid, to be grossly inadequate to the value of the property, it afforded strong evidence of a secret and fraudulent trust.; that it was incumbent on the plaintiff, in order to recover, to make out that the conveyance was not in reality absolute, but that there was a secret trust, or understanding and that such trust was fraudulent. That if they were satisfied that, any trust was attached to the conveyance, as the parties understood it, at the time, ^ , 1111 then the inquiry arose, whether such trust was legal and honest,</p> <p>or fraudulent and illegal; that on this point the criterion was" the same, viz. whether the object and tendency of such trust was to secure the property for the benefit of Irish, to the exclusion of the rights of his creditors; if so, the transaction was fraudulent. But if, on the other hand, it was actually understood and intended by the parties,that the defendants should dispose of the property to the best advantage and appropriate the avails, as fast as received, to the payment of debts, so far as the property went, or so far as there were debts to be paid, that, in that case, the transaction was not such as would subject the defendants in this action; that although the object might be to prevent attachments, and consequent sacrifice of the property, yet, if the contract was such as last supposed, it would not fall within the penalty of the statute; and that on this supposition, any representations, made by the defendants to Irish, to induce him to make the conveyance, if the intent of the conveyance was the honest application of the property in payment of debts, would be immaterial. And further, that if the trust was a legal trust, agreeably to the supposition already made,although the defendants might afterwards deny the trust and refuse to carry it into execution, still, the plaintiff could not recover in this^action upon the ground of such denial or refusal, but the creditors might have another remedy.</p> <p>1. The conveyance from Irish to the defendants was a sweeping one. It included all the property belonging to Irish, both real and personal. Since the time of Twyne’s case, such a conveyance by a debtor in such circumstances, and for such purposes, has been held to be fraudulent.</p> <p>Our statute against fraudulent conveyances declares all fraudulent and deceitful conveyances of goods or chattels, &c. utterly null and void, as against the party, whose right, debt, or duty, is endeavored to be avoided, and the statute further declares that “every of the parties to such fraudulent and deceitful conveyance, &c., who, being privy thereto, shall justify the same-to be made, had, or executed, bona fide and upon good consideration, shall forfeit the full value of such houses, lands, &c.” Vide Statute, 266. sect. 7.</p> <p>The rule to be adopted, In construing the statute in question, is obvious. It was made in suppression of fraud and deceit, and should be liberally and benefically expounded, though highly penal. Cadogan v. Kennett. 2 Cowp. 434. 1 Swift’s Dig. 266.</p> <p>2. All conveyances are fraudulent and void, when the object of the parties is to hinder, delay, or defraud créditors. It is essential to every valid conveyance, that there should be not only a valuable consideration, but it must be made bona fide, and if there be malafides in the transaction, it is void as to creditors. A debtor may legally prefer a particular creditor, but he must take care to do it in such a manner as not to defraud other creditors. A debtor may also convey his property to trustees, for the payment of his debts, but the object and character of the conveyance should appear upon the face of the deed, or by some other instrument, executed at the time of the conveyance. 1 Swift’s Dig. 275, 76, 77.</p> <p>In the case of Jackson v. Brush, (20 Johns. Rep. 5) the Court held a conveyance', by a person indebted at the time, absolute on the face of it, but intended to enable the grantee to sell the land, and pay the debts of the grantor, rendering the surplus, if any, to him, void, as against his creditors.</p> <p>So a general conveyance of all a man’s property is always considered a badge of fraud, and a secret trust between the parties, that the vendor shall have a certain advantage from the estate conveyed, is a conclusive badge of fraud, that will admit of no explanation, and wherever it appears, the conveyance is fraudulent and void. 1 Swift’s Dig. 274.</p> <p>Lord Coke states a bona fide conveyance to be, where there is no trust, expressed or implied. In all cases, we apprehend, where there is a direct or indirect agreement, that the vendor is to have some allowance, favor or benefit, from the estate conveyed, or where some advantage will result to him from any provision in, or consequence of, the contract, the sale will be void. Vide Twyne’s case, Co. Abr. 62. Neto England Marine Ins. Co. v. Chandler, 16 Mass. R. 279. Goodwin v. Hubbard. 15 Mass. R. 215. There was a secret trust between Irish and the defendants, in relation to the property conveyed, which rendered the conveyance fraudulent and void. The conveyance said one thing, and the secret understanding another, and quite a different thing. The debt to Gayes was to bo kept on foot, and Irish was to pay interest on it though the notes w^ere given up.</p> <p>3. ' A contract fraudulent m part is. void in toto; for as Lord Coke observed in Fermor’s case, (Co. Rep. Abr. 61.) “The common law doth so abhor fraud'and" deceit, that all acts, as well judicial as others, which of themselves are just and lawful, yet being mixed with fraud and deceit, are, in judgment of law, wrongful' and unlawfuland the same doctrine is laid down by Montague, Ch. J. in Wimbish v. Tail-boys', Plowden 54.</p> <p>It is generally the object of fraudulent vendors to desire some direct, or indirect advantage from the transaction, but there may be cases, where they can dérive no advantage, and yet the sal/es be fraudulent. It is not therefore dn indispensable test. Vide Swift’s Dig. 275.</p> <p>But in the case at bar, the fraudulent grantor, Irish, was to derive a distinct advantage from the transaction. His property was to be kept from the attachments of his creditors, and consequently all loss, which he might otherwise sustain by forced sales of his property, on executions, would bo avoided. This would induce him to make the fraudulent conveyances complained of in the plaintiff’s declaration.</p> <p>If the law sanctions such a contract, how long can a debtor hinder and delay his creditor by such a conveyance ? What rule can this court lay down upon the subject, that will be certain and easy of application ? If the doctrine of the charge of the court below should be'sustained, it would enable every insolvent debtor to make a bankrupt law for himself, and one too, that would operate very unequally upon his creditors. If debtors can keep their property locked up in the hands of others, and set their creditors at defiance, for one month, they can for one year, or for any indefinite period. Vide Hyslop v. Clark, 14 Johns. R. 464.</p> <p>4. We assert the principle, and believe we can maintain it, that a creditor has a right to attach his debtor’s property, whenever he chooses, and the man, who takes a conveyance of it for the purpose of avoiding that right, and hindering and delaying the creditor in the collection of his debts, subjects himself to the penalty of the statute against fraudulent conveyances.</p> <p>“An insolvent debtor” said Judge Van Ness, in the case °* ^y^°P v* Clark, 14 Johns. Rep. 464, “has no right to place his property in such a situation as to prevent his cred-d°rs from taking it under a process of law.”</p> <p>In Naylor v. Fosdick, 4 Day’s Rep. 152, Judge Swift said, a debtor had no right to withdraw his property from the reach of legal process, and thereby compel his creditor to seek his remedy against the person of the debtor only, or his trustees.</p> <p>Trumbull, J. in the same case said, “in this state it has been holden as settled law, that no man can make a conveyance of his effects to a mere trustee, for the payment of debts, with intent to secure the property from attachment and levy.</p> <p>All such deeds and assignments have been adjudged void, under our statute against fraudulent conveyances,” and to the same point, we cite Quincy v. Hall, 1 Pick. Rep. 357, 362. Widgery et al. v. Haskell, 5 Mass. R. 152.</p> <p>The charge takes the ground, that the debtor may place his property, for a time, or until he can sell it at private sale to raise money to pay off his debts, beyond the reach of his creditors, for the purpose of preventing attachment, and hindering and delaying them in the collection of their debts. The charge was erroneous, or the authorities to which we have referred are not law.</p> <p>Again, it is said by the defendants, that the property was conveyed to them in trust for the creditors of Irish. We answer first, that the creditors never consented to any such conveyance, and without their consent, it was void. Stevens et al v. Bell, 6 Mass. R. 342. Widgery et al. v. Haskell, 5 Mass. R. 152, 3. Quincy v. Hall, 1 Pick. 357, 62.</p> <p>In the second place, we say, that the conveyances are absolute on the face of them, and no writing was executed showing any trust; and it is well settled, that when no trust appears upon the face of a deed, and there is no manifestation Snor evidence of it in writing, parol proof is inadmissible to show a trust. 1 Johns. Ch. R. '333. 1 Pick. R. 362. 4 Day’s R. 149. 2 Swift’s Dig. 108. ' 3 Pick. R. 205.</p> <p>The conveyance, therefore, placed the property beyond the reach of creditors. In the third place, we say, that the defendants, immediately after receiving the conveyance, denied any trust, and claimed to be the bona fide purchasers of the property for a full consideration; and upon this point, the jury should have been directed to return their verdict for the plaintiff, unless- they found, that the defendants were the bona fide purchasers of the property, for a valuable consideration; and we further insist, that if it were true that the defendants, by parol, agreed to hold the property in trust for the creditors of Irish, and received absolute conveyances of it under such agreement, and then denied the trust, and claimed to be the bona fide owners of the property, by virtue of said conveyances, the transaction was fraudulent and void, within the true intent and meaning of the statute, and the jüry should have been so instructed. Again, the representations made by the defendants to Irish, to induce him to make the conveyance, taken in connexion with their subsequent, conduct, were evidence tending to show the transaction fraudulent and the jury should have been so directed.</p> <p>In conclusion, we insist, that the last request to charge, in relation to the personal property, should have been regarded and sustained by the County Court. Naylor v. Fosdick, 4 Day, 152, 153.</p> <p>1. The proceedings, on exceptions, being in the nature of a writ of error, the case must be' decided upon the exceptions alone. Way v. Wakefield, 7 Vt. R. 223.</p> <p>' 2. The plaintiff, to avail himself of any benefit from his exceptions, must make out the two following propositions»</p> <p>1. That the law, as laid down by the court, was wrong, as regards actions of this character, generally. 2.That, taking into consideration the cause, and the evidence to sustain it, in this particular case, it was wrong, and tended to mislead the jury in applying the facts. Though the court may not assent to all the propositions in the charge, yet, if they do not tend to mislead the jury, the judgment will not be reversed. 6 Vt. R. p. 411.</p> <p>The court, in their charge, told the jury, that the criterion, to determine whether the transaction was fraudulent, or not, was,' what was the intent of the parties at the time of the sale, and the character and tendency of the contract;— that if'the intention was to reserve the property for the benefit of Irish, to the exclusion of his creditors, the case was with the plaintiff, but, if it was the intent of the parties, and the character and, tendency of the contract was, to appropriate the whole property for the benefit of Irish’s creditors, the case was with the defendants.</p> <p>The case rests upon the correctness of the charge on this point.</p> <p>The intent is material. The suit is civil in its form, but no further ; and the object is to recover a forfeiture for a crime, committed by the defendants. The idea of a crime supposes an unlawful intent, and an unlawful act, consequent upon the will. 4 East, 1. 13 Petersdorff, 193, in note. 4 Black. Com. 21, et seq. Here, both parties, to make out the case, must have had an unlawful intent. ,</p> <p>The very idea of deceit supposes a bad intent. It must be averred, and proved, or no action can be maintained. 3 T. R. 51, Pasley v. Freeman. Hay craft v. Creasy, 2 East, 92. Allen v. Addington, 7 Wend. 9., 8 Johns. 25. 13 Vesey, 131.</p> <p>In criminal cases, a general felonious, intent will not answer, especially, when the offence is created by statute, and the statute makes a particular intent necessary to constitute the offence. Arch’d. Cr. PL 27, and cases cited. Rex v. Jukes, 8 T. R. 536. Leach, 597, Williams’ case. Stalkie’s Evid. 742. The question here was, whether the defendants, at the time of the conveyance, took it with the intent of defrauding or delaying Irish’s creditors. This was a question of fact for the jury, exclusively, and was fairly submitted to them. 4 East, 1. 5 T. R. 420. 2 Bos. & Puller, 59. 1 M. & S. 251. Cowp. 432. 7 Wend. 436. 8 Cow. 405. 4 Wend. 303. 6 East, 259.. 3 M. & S. 371.</p> <p>The fallacy of the plaintiff’s argument, consists in holding those circumstances, which are mere evidences of fraud, and proper to be submitted to a jury, as actual frauds, sufficient to make out his case ; thus, treating the question of intention, either as immaterial, or in point of law, conclusively established, by proof of certain circumstances attending the sale. This would estop the jury, by artificial rules, from finding the truth in criminal' cases. The circumstances upon which he relies, as conclusive evidence of fraud, are, — 1st, The representations by Clayes to Irish, before the sale, — 2d, That by reason of the assignment, Irish’s creditors could not immediately attach his property, — 3d, That the trust was by parol, — 4th, That defendants have subsequently denied the trust.</p> <p>To the first objection, we answer, that from the whole ease it appears, that the representations did not produce any mischievous act.</p> <p>To the second, that it has been held by repeated decisions, * ' 4 . that the assignment, by a debtor, of his property for the uitimate benefit of his creditors, does not bring him or his assignée within the act, even though the creditors had not previously assented to it. 6 Vt. R, 600. -,3yM* & S. 371. 4-East, 1. 17 Mass. 552. 6 Mass,239. .</p> <p>To the third objection we answer, that, though the trust was by parol, it could be enforced. It would be singular indeed, if parties, intending to perform an honest act, were to be entrapped and punished, through the mere ignorance of the scrivener, in reducing: their contract to writing. This position is founded upon the false assumption, that the intent, with which the act Is done, is not material. But the doctrine advanced in the following authorities, would seem to put a quietus on the objections. 4~East, 1. 4 Pick. 104. 2 Pick. 610. 16 Mass. 275. 6 Vt. 426'.' Powell'on Mortgages, 4, et seq. 3 Vt. 565. - 1 Paige, 56. 6 Johns. 417. Ido. 594. 4 do. 167. 7 do. 40. 2Cowen,324. 4 Kent, Cbm. 142. 8 Wend. 641. 4 Johns. 536. 17 Mass. 164,</p> <p>To thd other objection it is sufficient to say, that if the: intention, at the time of the sale, was honest, a subsequent. ’ change of views by the defendants will not make them liable. in this action. 4 Black. Com. 232, and Chitty’s note,</p> <p>According to the plain and obvious- words, of the statute, to constitute the offence complained of, two things must concur.</p> <p>-1. A conveyance fraudulent, per se, without respect to the use that may afterwards be made of it; and</p> <p>2. The conveyance must be.justified tobe bona fide.. There cannot be a fraudulent conveyance, within the statute, without guilt in the grantor as well as the grantee, otherwise the contract will not be covinously made. Stat. p. 266.</p> <p>It is against corrupt collusion that this'statute is directed, and when the fraud is on the side of the vendee alone, there are other penalties and other remedies. Foster v. Halt, 12 Pick. 89, 100. Nunn. v. WilsmQre, 8 T, R. 521, 530,</p> <p>The general doctrine of that portion of the charge which is excepted to, is that the criterion of guilt under this statute is, whether the design and tendency of the contract were to benefit the debtor to the injury of the creditor. This is a plain and intelligible rule, and commends itself to the good sense of every man.</p> <p>The statute is directed against those collusive, colorable conveyances, whereby some advantage is attempted to'be secured for the debtor, in derogation of the rights of the creditor. The rights óf the creditor are satisfied by the payment of the debt.</p> <p>The power to vex and embarrass the debtor to his ruin, and the injury of other creditors, is not a substantive right in the sense of the statute, but is a mere incident of the right to the debt, and if this latter right be secured to him, it would be monstrous to contend, that the statute is intended to punish the party for the attempt to deprive the creditor of a power, the exercise of which could produce no benefit to himself, and only mischief to others. If the case made by the plaintiff be true, the assets were ample to satisfy all the debts of the grantor, and the plaintiff and other creditors have a sufficient remedy by civil proceeding.</p> <p>Under these circumstances, it would be unparallelled hardship to punish the defendants for a constructive fraud, where no actual injury to the rights of creditors was either designed or effected. Pickstock v. Lyster 3 M. & S. 371 — Note at end of Oliver’s Con. Nunn v. Willsmore, 8 T. R. 521, 530. Foster v. Hall, 12 Pick. 89,100. Mason & Hidden v. Gale, 6 Vt. R. 600. Gibson v. Seymour, 4 Vt. R. 518. Johnson v. Peak, 4 Wend. 308.' Jackson v. Finnemore, 7. Wend. 438. 1 Cowp. 77. Sturgess v. Maitland, Anthon’s N. P. 153.</p>

<p>A wharfinger is liable only for ordinary diligence.</p> <p>A charge for wharfage, if made from a shipping list, and not from an inspection of the goods, is not conclusive evidence that the goods were received by the wharfinger.</p> <p>A delivery of goods on a wharf is not necessarily a delivery to the wharfinger.</p> <p>Evidence oi usage is proper to show when goods, landed, on, a wharf, are to be considered as in the custody of the wharfinger..</p>

<p>When G. in pursuance of a contract with S., delivered S. wool to card, and cloth to dress for him, and S. was then, or soon after, in the employ of T. and did not carry on the business on his own account, and this was generally known ; — Held, that G. was accountable to T. for the services thus performed by S., and as he had notice before the services were performed, and before any payments were made therefor, that S. was in the employ of T. he was not jusitfied in making any payments to S.</p>

<p>Where a declaration on book is filed as an offset to a suit pending in the ' County Court, and exceptions are taken to the decision of the County Court, accepting the report of the auditor, such decision is an interlocutory judgment, and the exceptions cannot be carried to the Supreme' Court until after a final judgment shall have' been rendered in the original action; and if an entry' of such exceptions is made in the Supreme Court, it will be treated as a mis-¡enlry.</p>

This was an action of assumpsit for services, performed by the plaintiff, as an attorney. Plea — General issue.

This was an action of trespass on the case. The plaintiff declared in three counts.

This was an action of trover, to recover the value of a cow. Plea — Not guilty. On the trial of the cause in the County Court., the plaintiff offered in evidence a writing, signed by the defendant, which is as follows; “Burlington, Feb. 12, 1833.

This was an action of ejectment, to recover the seizin and possession of certain lands m Charlotte. Plea — Not guilty. Issue to the country.

<p>Audita Querela cannot be sustained for error in law or in fact.</p> <p>The Court, before whom a cause is pending, has power to decide on the authority of a person to appear and answer for a party, in said cause.</p> <p>The decision, which said Court makes on that point, cannot be revised by an audita Querela.</p>

This was an action of assumpsit,.upon the following written submission. “Whereas divers difficulties have arisen between “ Wm.

<p>Assumpsit, to recover the price of a piece of land, deeded by the plaintiff to the defendant, on the 30th day of March, 1832.</p> <p>Plea — General issue, and joinder to the country.</p> <p>On the trial of the cause in the County Court, the plains tiff offered, in evidence, a copy of his deed ,to the defendant, dated March 30th, 1832, which was not objected to. The deed was a deed of warranty, in common form, and the grantor, in and by said deed, aeknoy/ledged that he had re-, ceived the consideration money.</p> <p>The plaintiff also offered parol evidence, tending to prove, that after the date of said deed, the defendant had admitted that he gave, or was to give, seventy-five dollars for the land, and that the land had not been entirely paid for. To the admission of this evidence the defendant objected, but the Court overruled the objection and admitted it.</p> <p>The defendant then offered one Nathaniel S. Packard, as a witness, to prove that the consideration for the deed had been paid to the plaintiff.</p> <p>The plaintiff objected to said witness, upon the ground of his interest in the event of the suit. It appeared that the plaintiffs writ was served by attaching the land, described in said deed, as the property of the defendant, and that the said Nathaniel, subsequent to said attachment, had purchased the same land of the defendant, and that the defendant had conveyed it to him, by a deed of warranty. The Court de? cided that the witness was interested, and his evidence was rejected.</p> <p>The defendant then offered evidence tending to prove, that the deed in question did not convey all the land, for which the defendant had agreed to pay seventy-five dollars, and that by. th.e terms of the original contract, the plaintiff was to covenant, in his deed, to keep all the division fences in repair. The - plaintiff also objected to this evidence, and the Court rejected- it, as it had previously appeared, that when the deed was offered by the plaintiff to the defendant, tlie defendant objected to it, because, it did not conform to the contract, that the parties then disagreed as to what the contract was, and that the plaintiff put’ it to the defendant, to elect, either to accept the deed, or not, qnd that the de-: fendant thereupon accepted it.</p> <p>The defendant requested the court to charge the jury, that it was necessary for the plaintiff to produce express proof that the land was not paid for, as it was the universal practice to receive payment for lands sold or take security therefor, on the execution of the deed of conveyance, and that the admission of the .plaintiff by his deed, that the consideration for the deed had been received, was strong evidence that the land had been paid for. But the court charged the jury, that the acknowledgment in the deed of the receipt of the consideration money was prima facie evidence of the payment of it, and threw the burthen of proof upon the plaintiff, to show that it had not been paid, but that the acknowledgment, in the deed, was not conclusive.</p> <p>The jury returned a verdict for the plaintiff, and to th.e several decisions, and charge, of the County Court, the de* fendant excepted.</p> <p>1. The plaintiff admits in his deed, that the consideration had been paid. He is, therefore, estopped from proving the Contrary. Every party to ■ an instrument, under seal, is e&? topped, in a. court of common law, from denying any fact therein expressly alleged, or particularly recited. 1 Phil. Ev. 424. Countess of Rutland's case., 5 Coke Rep. Ábr. 143. Shelly v. Wright, Willes’ Rep. 9. Haynes v. Hare, 1 H. Elk. 659. ........</p> <p>The rule applies with peculiar force and propriety to deeds of bargain and sale. The lawTeqüires them to b.e in writing, to be executed with certain formalities, and, among other requisites, to be made o/i good consideration, and parol evidence is no.t admitted to enlarge, abridge, vary, contradict or control them.</p> <p>2. As to the subject matter of the conveyance, see Paine y. McIntyre, 1 Mass. Rep. 69. Russell &■ Lawson v. ' * Laude, 1 Dick. 346. Fell v. Chamberlain, 2 Dick. 484. Hare v. Shearwood, 1 Vesey, jr. 24. Mease v. Mease, Cowp. 47. Preston v. Merceau, 2 Black R. 1249. Snyyer’s iessee Snyder, 6 Bin. 483. Meers v. Ansell, 3 VCils. 275. Howes v. Barker, 3 Johns. 506. Northrop v. Speary, 1 Day’s Cas. 23. Parol evidence is inadmissible to show a mistake in the grantee. 12 Johns. 488. Do. 77.</p> <p>Without some consideration, nothing passes. Mildmay’s case, Coke’s R. Abr. 12. Sheppard’s Touch. 222, 3. notes.</p> <p>If the particular consideration is not stated, or if the deed recites a good consideration without naming it, it may be shown by averment, as that is consistent with the deed. Coke’s R. and Sheppard’s Touch, above cited. But if the deed recites a particular consideration, either in quality or amount, parol evidence is then inadmissible to vary, contradict, or enlarge the consideration mentioned in the deed. Winchell v. Latham, 6 Cowen, 690. Hoioes v. Barker, 3 Johns. 506. Maugley v. Hauer, 7 Johns. 341. Emery v. Greenleaf, 5 Greenleaf, 232. Schermerhorn v. Vanderheyden, 1 Johns. 139, 40. 1 Phil. Ev. 427. 12 Wend. 61. 1 Cowen, 250. 4 Cowen, 431, 6. Har. & Johns. 276.</p> <p>So where the deed admits the consideration to have been paid, the grantor cannot recover, at law, though in truth it was not paid. Shep. Touch, pp. 222 and 3 says: “ If the “ deed make mention of money, and in truth no money is “ paid, yet the bargain and sale is good, and no averment “ will lie against this, which is expressly affirmed in the “ deed.” Ib. 510. Dyer, 169, 90, to the same point. Willes, 9. 6D. &E. 62. 1 Salk, 277. Coke on Litt. 352. (a) 1 Chit. PI. 572. 1 Saund. Rep. 325, note 4; and we refer more especially to the following more recent cases, in England, as directly in point. Rowntree v. Jacob, 2 Taunt. 141. Baker v. Dexoey, 8 Com. Law, 193. Lampón v. Corke, 7 C. L. R. 205. In the American States the decisions are not uniform, but a great weight of authority is in favor of the doctrine, as established in England. Steele v. Adams, 1 Green-leaf, reviewing the case of Shepherd v. Little, 14 Johns. Speake v. U. States, 3 Peters’ Cond. Rep. 244. Connell v. McLean, 6 Har. & Johns. 299. Dixon v. Swiggett, 1 Har. & Johns. 252. Stark. Ev. 1002, where it is said, “In “ Maine, Maryland, and North Carolina, parol evidence can- “ not be giyen to prove the non-payment of the purchase “ money, for lands, where the deed states the consideration “ has been paid. See also Ruffin’s Rep. 64. Treadwells v. Buckley, 4 Day’s Cas. 395. 1 B'inney, 5Ó2. Belden v. Seymour, 8 Conn. 316. 3 Mason, 347. Davenport v. Mason, 15 Mass. 85, 91, 92. Ib. 307.</p> <p>The party here has had no opportunity of pleading the estoppel ; he may, therefore, rely -upon it in- evidence, and it will have the same conclusive effect as if pleaded. Hoivard in Mitchell, 14 Mass. 241. Hobart, 297. Treveson v. Lawrence ét al. 1 Salk. 276. 2 Lord Ray. 1051. 6 Mod. 256. 1 Chitty’s PI. 575. 1--Saunders’ Rep. 325, note 4.</p> <p>Nathaniel Packard was improperly rejected as a witness. Plis interest was equally balanced, as his remedy was complete on the covenant of the deed. It is not sufficient to say that the remedy on the covenant might be attended with some difficulty. Buchland v. Tankard,, 5 T. R. 578, is the only case, which countenances the exclusion of a witness, on such grounds, and that case is overruled by Birt v.Kershaw, 2 East, 458. See also Page v. Weeks, 13 Mass. 201. Stark. Ev. 752. Ridley, v. Taylor, 13 East. 175. Phil. Ev: 55, 56. 6 Johns. Ch. R. 201.</p> <p>But at all events the charge was wrong, in respect to the proof required by the plaintiff. The burthen of proof was on him, nnd be ought to have produced express proof. 1 Swift’s Dig. 415.</p> <p>I. It has long since been decided, that-the acknowledgment, in a deed, of the receipt of the .consideration is not conclusive. 4 Kent’s Com. 465. Bullard v. Briggs, 7 Pick. R. 537. Wilkinson v. Scott, 17 Mass. R.. 257. 3 T. R. 474. Shepherd v. Little, 14 Johns. 210.</p> <p>II. Nathaniel Packard had become interested in the event of the suit after its commencement, by the joint act and assent of himself and the party, who attempted to use him. The purpose of his testimony was to relieve the land, which he owned, from the plaintiff’s incumbrance; and a verdict for the defendant, in this case could be given in evidence, in his favor. Widgery v. Haskell, 5 Mass. 144. Lapham v. Curtis, 5 Vt. R. 381.</p> <p>HI. It appears that the defendant had his option to take , . \ the deed, or let it alone; but chose to take it — After this, he cannot find fault with it, either to defeat the action, or to lessen the damages. He should have objected to the deed if it was different from the contract, and if he had paid any thing or suffered any damages, be might have sued and recovered.</p> <p>When thd deed was offered, the defendant was fully aware of its alleged deficiency, and by taking it, procuring it to be recorded and conveying the same land, he must be taken to have waived objections.</p>

Ejectment, to recover the seizin and possession of one equal undivided fourth part of a saw mill, mill yard, and privileges, situate in Jerico. Plea — Not guilty. Issue to the court.

This was an appeal from the decision of the Probate Court for the district of Chittenden to this Court. It appeared from the copies of the appeal that Guy Boynton, deceased, left a widow (Laura M..

<p>Trespass, for taking two horses. Plea — -General issue.</p> <p>Verdict for plaintiffs, and exceptions by defendants to the decision of the county court, in rejecting testimony.</p>

<p>An averment, that A. bought of L. a barrel of rum for fifty dollars, and that L. warranted it to be good, &c. is not sustained by evidence that L. sold A. a barrel of St. Croix rum, at 1,06 per gallon, and by mistake delivered rum of an inferior quality, worth only 60 cents per gallon.</p> <p>Nor is such evidence sufficient under counts for mpney paid, and money lent.</p>

This was an appeal from a decision of the Probate Court, for the district of Chittenden, accepting the report of the doings of Stephen Byingtdn and Daniel Marsh, administrators of the estate of Jared Byington, deceased, under a warrant to them directed, by said Probate Court, for the sale of the real estate of said deceased, and also, from a decision of said Probate Court, allowing the said Stephen’s and Daniel’s administration account, which appeal was taken by Mason Mead…

This was an action of debt, in which the plaintiffs declared, among other things, in substance, that the defendants, on the 4th Feb. 1829, presented their petition to the road commissioners of Chittenden cqunty, for the laying qf a new road, or the alteration of the old one, from the village qf Hines-burgh, through a part qf the towns of Hinesburgh, St. George, Shelburn, Williston, and Burlington, tq the college in said Burlington ; that the said commissioners, on the 5th…

<p> (In Chancery.) </p> <p>An application for rb-liearing must be made, and notice of it served upon the adverse party, within twenty days from the rising of the court, which pronounced the decree.</p>

This ivas a trustee process, returnable to the County Court, at their September Term, 1837. Service was accepted by the trustee, — and service by a legal officer, made on the principal debtor. The following 'is a copy of the officer’s return : — r b Franklin County, ss.

This was a petition to this court, for a new trial. The petitioner, Orange Ferris, alleged that, at the April -Term of Franklin County Court, 1835, he entered in that court a suit in his favor, and against Darius S. Barlow, declaring upon a judgment recovered at the September Term, of said county court, 1824, in favor of said Orange, and against the said Darius, for .$320;28, damages, and $6, 91 costs, to which declaration the said Darius pleaded the statute of limitations,…

<p>This was an action of book account, in which judgment to account had been rendered in the county court, and the case referred to an auditor, who disallowed the greater part of defendant’s account, and reported a balance due the plaintiffs of $30,06. No reasons were assigned in the report for the disallowance of the part of the defendant’s account, which was not allowed, and it did not appear that the auditor was requested to make a special report of the reasons for such disallowance, nor that any objection had been heretofore made,on the ground that no reasons for the disallowance were stated in the report. The items in the plaintiffs’ account, mentioned as numbered 2, 9, 18, 27, and 29, were charged on the plaintiffs’ original book, a part to Goodrich & Barney, and a part to Goodrich & Hopkins. The auditor reported, that it appeared from the plaintiffs’ testimony that those items were for work done for the defendant, and that they were set to the account of Goodrich & Barney, and Goodrich & Hopkins, in consequence of their having said to plaintiffs that they would accept an order from defendant for all the work, which plaintiffs might do for defendant.</p> <p>The auditor further reported, that all the work done by the plaintiffs for the defendant, was while the defendant was sawing marble in the mill owned by F. V. Goodrich, and on a contract between said F. V. Goodrich and the defendant,</p> <p>It further appeared, that in the spring of 1834, defendant became sick, and F. V. Goodrich took charge of the business in the mill, with the understanding with the defendant, that when he recovered, he might go on with the contract, and receive the whole profits of the sawing, agreeably to his contract, and account to F. V. Goodrich for what the latter should . expend m carrying on the business; — that the defendant did resume the business, as soon as his health was restored, and, on a final settlement between him and F. V. Goodrich, he was allowed for all the marble sawed during his sickness, and accounted to F. Y. Goodrich for such sum as he had expended in prosecuting the business ; — that the work charged in the plaintiff’s account, and described as numbered 34, 35, 36, 37, 38, and 39, was done while the defendant was sick, and during the time that F. Y. Goodrich superintended the business in the mill, and at his request, and was charged on the plaintiffs’ original book, in the account against Goodrich & Hopkins, and designated as work done for mill; — that at the time the defendant and F. V. Goodrich adjusted and settled the business done under the contract for sawing marble, as aforesaid, the plaintiffs drew off their account against F. V. Goodrich, and presented it to the defendant, who refused to have it allowed against him in that settlement, as he had a settlement to make with plaintiffs, and preferred to settle it with them; that no part of the work charged in the plaintiffs’ account was accounted for by Drew, in the settlement between him and F. Y. Goodrich, nor had any part of it been paid by F. V. Goodrich to plaintiffs, except 75 cents, which the auditor allowed to the defendant, nor by Drew, otherwise than by the account presented by him to the auditor.</p> <p>The report of the auditor was accepted by the County court, and the case brought into this court upon exceptions by the defendant, to such acceptance.</p> <p>The report ought not to be accepted for the following reasons :</p> <p>1. From the auditor’s statement of facts, in relation to plaintiffs’ account, it appears that he has allowed, in plaintiffs’ favor, charges for which they had no legal claim on defendant.</p> <p>2. The auditor- has not, in his report, stated any facts in relation to the defendant’s account, which will enable the court to ascertain, whether his decision, rejecting 'that account, is correct or not.</p> <p>As to the first point, charges in plaintiffs’ account, numbered 2, 9, 18, 27, and 29, were originally charged to others than , defendant, and the auditor does not find that the services m those items contained, were performed at defendant’s request. From the auditor’s report, it appears that items numbered-34, 35, 36, 37, 38, and 39, are for services performed by plaintiffs, at the request of F. V. Goodrich, and for F. V. Goodrich’s benefit, and for which defendant was never accountable to plaintiffs.</p> <p>As to the second point, it is the duty of an auditor, whenever he makes a special report, to detail so much of the facts found, relating to each litigated item, as will enable the court to judge, whether the auditor has decided legally. Eddy et al. v. Him, 3 Vt. R. 389.</p>

Assumpsit, for monay had and received, and for money lent. Plea — Non assumpsit, and trial by jury.

<p>Trespass for taking plaintiff’s mare.</p> <p>Plea — General issue, and two special pleas in bar.</p> <p>1. That defendant took said mare, by virtue of an execution against the plaintiff, issued by Alvin Hall, captain of the seventh company of the third regiment, third brigade and third division of the militia of this state, on an amercement, by said captain, of the plaintiff, for delinquency of military duty in said company, and directed to defendant, as orderly sergeant of said company, and that he, as such orderly sergeant, proceeded to advertise and sell, and did, on the 9th day of December, 1836, sell said mare, on said execution, according to law, in satisfaction of such execution, — setting forth his whole proceedings, but omitting to allege in his plea, that the plaintiff was enrolled in said company, or warned to appear at the cómpány training, for neglect of which appearance the fine in question was imposed.</p> <p>The defendant pleaded, secondly, that before the committing of the said supposed trespass in the plaintiff ’:s declaration mentioned, there was “ in said Berkshire, a company of “ militia of this state, known and designated as the seventh “ company of infantry, in the third regiment, third brigade cc and third division of the militia of this state,” of which Alvin Hall was captain, duly elected, commissioned and sworn — and setting forth the issuing of orders by said captain for a company training, — -the ^enrolment of plaintiff in said company and his liability to do military, duty therein,— the warning to appear at said company training, — plaintiff’s neglect to appear, and his amercement for such neglect, by said captain, — the issuing of an execution for the collection of said fine, directed to the defendant, as orderly sergeant of said’company, and the levying by him, as such orderly sergeant, of said execution on the mare in question, and setting forth, as in the first plea, the advertising and sale of said mare, in satisfaction of the sums contained in said execution, but omitting to allege that said company was a legally organized company of said regiment.</p> <p>The plaintiff replied, that at the time when the said Alvin Hall, captain of said company, issued his said orders, for said company to meet, as in said plea alleged, and at the time the plaintiff was warned, agreeably to the order of said captain, as mentioned in said plea, and for a long time before, to wit, for more than two years before, and at the time when it is alleged that the said captain amerced the plaintiff in said fine, and for a long time, to wit, three years before, and after-wards, the plaintiff was not an able bodied man or citizen, and was not subject to the requisitions of the act, entitled “ an act, regulating and governing the militia of this state,” and was not subject to be enrolled in the militia of this state, nor subject to any order or orders of the said captian nor liable to any process issued by him, but, on the contrary, was, at the times before mentioned, and for more than two years before, and afterwards, and still is in feeble bodily health, by reason of bodily infirmity called a breach, and, by reason of such infirmity, was, during all the time aforesaid, and ever since, disabled from performing the duties in the militia of this state, required by said act, — and that, previous to the issuing of the order aforesaid, the plaintiff notified the said captain, that he was not able nor liable to do military duty, nor subject to any order from him, and that, after the amercement of the plaintiff, by the said captain, to wit, on the -8th J 1 * day of December, 1836, the plaintiff presented to the said caPtain a certificate of Doct. John S. Webster, then surgeon of said regiment, dated the 8th day of December, 1836, of the same disability before mentioned.</p> <p>To this replication the defendant demurred. The County Court adjudged the replication insufficient, and rendered a judgment for the defendant, and the plaintiff excepted.</p> <p>I. The act, for regulating and governing the militia of this state, provides only, that each and every free, able bodied, white male citizen of this state, &c., shall be subject to the requisitions of the act, and enrolled in the militia, &c.</p> <p>It is obvious that none but able bodied men are embraced within the act.</p> <p>The statute does not undertake to define what bodily infirmity shall exempt a man, but it is plainly inferable, that any man, who, by reason of any bodily defect, is rendered less capable of enduring fatigue than he otherwise would be, is not such an able bodied man, as the statute contemplates.</p> <p>After the captain had been duly notified of the disability, if, with that notice, he proceeded to amerce the plaintiff, he must be regarded as doing it at his peril. After notice of the disability was given by the plaintiff, he stood in the same situation, as a man with but one leg, or one arm, over whom the captain could, by law, have no jurisdiction or power.</p> <p>The plaintiff, then, was not liable to do military duty. 'He was not subject to the jurisdiction of the captain. And the captain in undertaking to impose a fine, has exceeded his jurisdiction, and his doings are, therefore, void. McLane v. Stuart, reported in Swift’s Ev. 359.</p> <p>2. The defendant’s first plea in bar is defective. It dees not show that the necessary steps required by law, in order to render the plaintiff amenable to a fine, have ever been taken; viz, that he was enrolled, or warned to appear, or that he neglected. This is certainly necessary. To merely set forth the fact, that the captain assessed the fine, is not sufficient. The act of amercement is not a judicial, but a mere ministerial act. The captain is not a judicial, but a ministerial officer. .</p> <p>1. The defendant, as orderly sergeant, was justified, while acting in his official capacity, in levying and collecting the' execution in question, which was regular upon the face of it.</p> <p>2. The execution, under which the defendant justifies, cannot be collaterally impeached, as the captain, who imposed the fine, had jurisdiction of the subject matter. Mower v. Allen &f Bateman, 1 D. Chip. R. 382.</p> <p>3. The Legislature has constituted militia officers courts of competent jurisdiction, and an appeal lies from the captain to the regimental field officers, whose acts are not ministerial, but judicial, and their decisions are conclusive.</p> <p>4. The plaintiff, having no apparent infirmities, was properly enrolled; if he was entitled to an exemption from military duty, he should have procured a certificate from the surgeon of the regiment, and procured a disenrolment, in conformity with the provisions of the eighth section of the statute relating to the militia. Stat. 615.</p> <p>Until disenrolled, he was not exempted from doing military duty.</p>

<p>This was an action of debt. The plaintiffs declared upon a bond, dated April 12, 1830, given by the defendants to the plaintiffs, in the penal sum of $200, under a condition, that if the defendants should build a good and substantial bridge, of sound timber, &.c. across Brown’s river, in Fairfax, &c., then the obligation to be void, otherwise, of force, and averred a breach of the condition.</p> <p>The defendants pleaded non est factum, and a performance of the condition. Issues to the country.</p> <p>On the trial of of the issues in the county court, the plaintiffs offered in evidence, a bond executed by the defendants to Hiram Bellows, Joseph Kingsbury and Ira Farnsworth, selectmen of Fairfax, and their successors in office, the date, penal sum and condition of which corresponded with the declaration.</p> <p>The defendants objected to said bond, and contended that it did not show a right of action in the plaintiffs, and that there was a fatal variance between the bond offered and- the declaration, but the court overruled the objection and admitted the bond.</p> <p>The jury, under the charge of the court, returned a verdict for the plaintiffs, a,nd the defendants excepted.</p> <p>The act of 1817 does not give the action to the town, It extends only to cases where the action had been given to the selectmen by former statutes. Stat. 159.</p> <p>The statute only enables the towns to sue in cases where an action accrued to the town officers in virtue of their office. No action accrued to these officers, as incident to their office, except such as was given by statute. Previous to 1817, actions had, by statute, in various cases, been given to and against the selectmen, and nothing more was intended by passing the act of 1817, than to give the right of action in those cases to and against the town.</p> <p>No action is given at common law to these town officers, as such. They are the mere servants of the town, and in that capacity no right of action could vest in them. The statute of 1817, therefore, was intended for such cases only as had been provided for by statutes.</p> <p>The action, in this case, was founded upon the bond and not upon any statute regulation. The covenant alone gives the right of action, and this can in no way be affected by the act of 1817.</p> <p>But it may be said that “ the town had the legal interest in the bond, and, therefore, the suit should be in the name of the town.” Both the law and the fact of this position are denied, The doctrine, that the party having the legal interest should sue, does not apply to specialties. The law is well settled, that the person to whom the bond is given, and not the person for whose benefit it is made, must bring the suit. Watson v. Cambridge, 15 Mass. R. 290.</p> <p>The selectmen have no general authority to build bridges. This authority is given, not to the .selectmen, but to the town. Stat. 413. $ 14.</p> <p>There is only one -case where the selectmen are authorised to build a bridge, and that is, where a bridge is Wanting, and twenty or more freeholders apply to have one built. In that case, the selectmen can build a bridge and assess a tax upon the town to defray the-expense. But-the whole power of the selectmen is given by-statute,.and they must show that they acted within the scope <of their'authority. Nothing will be presumed -in their favor. The case does not show any authority for the -obligees to build the bridge in question, as the agents of -tire town, and the court will not presume it. Stat. 437.</p> <p>But there is--a fatal variance. The bond should have been set forth according to the terms of it, with an allegation •showing that by virtue of the statute, an action had accrued to the town.</p> <p>4. The bond shows upon the face of it, that it was executed for the sole benefit of the town, and that the obligees mentioned in the bond had no interest, and acted in no other capacity than as agents for the town.</p> <p>2. If they acted in no other capacity than as agents for the town, the penalty of the bond, instead of being due to them, is due to the town, and in legal contemplation, payable directly to the’town. The defendants were, in effect put . .... . under distinct obligation to the town, tor the contract must have been made with the town.</p> <p>It is well settled, that the suit must be brought in the name 0f the person, in whom is the legal interest. 1 Chitty’s PL 23. And it is equally well settled, that when a contract is made with one person, as the agent of another, the agent cannot sue, but the suit must be brought in the name of the principal, and this, Whether the agent be a public officer or a private agent. Bissell v. Spencer, 9 Conn. R. 267. Piggott v. Thompson, 3 B. & P; 147. Gilmore v. Pope, 5 Mass. R. 491. Mann v. Chandler, 9 Mass. R. 335. Toion of Arlington v. Hind. Chip. 431. Hodgson v. Dexter, 1 Cranch, 329. 1 T. R. 172,674. 2 Conn. R. 338. 1 Root’s R. 440;</p> <p>It is apparent from tiré bond itself, that the selectmen as sumed to act in nó other capacity thán a'S agents. If so, the whole legal interest is in the plaintiff find not in the selectmen.</p> <p>The act of 1817, Stat. p. 150, expressly confines the right of action to the town find settles the question;</p>

<p>This was an action of book account, brought into the county-court by an appeal from the decision of a justice of the peace. Judgment to account having been rendered therein, an auditor was appointed, who reported in substance, as follows : That the only claim exhibited before him, consisted of items, charged by the plaintiff to the defendant, for attending court as a witness, at the defendant’s request, in a suit in favor of the defendant, as administrator of one Wadsworth, against Corse &f others; that the plaintiff’s account accrued under the following circumstances. One Atkinson, prior to the year 1828, brought an action of ejectment against one Wright, and a-like action against one Mott, to recover certain lands, situate in Knight’s gore. Atkinson claimed title to the lands, under the town of Bakersfield, and Wright and Mott claimed under the proprietors of Enosburgh, and the principal question made in said suits, was, in which of said towns did the lands in question lie ? About the time when these suits were brought, the town of Enosburgh appointed the defendant and Heman Alle.n, agents for the town, to act, in conjunction with Wright and Mott, in the defence of said suits; that said Allen and the defendant took upon themselves the duties of said appointment, and, after conferring with Wright and Mott, joined with them in preparing and defending said suits ; that the defendant, as such agent, repeatedly called on the plaintiff to attend court as a witness in said suits ; that Wright and Mott, also, called on the plaintiff to attend as a witness in the same suits, and that the plaintiff did regularly, when so requested, attend the terms of the county court, as a witness in said suits, until they were finally determined, and charged his travel and attendance in each suit, and was paid by Wright for the fees accruing in the suit against him, and was partly paid for the fees accruing in the suit against Mott, by Mott;—</p> <p>That in the year ] 828, and during the pendency of said .suits, the defendant brought a suit, in his name, as administrator of Wadsworth, for certain lands in the same gore, which involved the same questions, and depended upon the same testimony as the before mentioned suits in favor of At-' kinson; that the suit brought by the defendant was commenced to prevent the statute of limitations from running against his claim of title, with the intention of having it continued from term to term, to await the determination of the suits in favor of Atkinson against Wright and Mott; that before the determination of the last .mentioned suits, Wright and Mott relaxed their exertions in their defence, and the principal labor of procuring the attendance of the witnesses devolved upon the defendant, as agent as aforesaid, though the witnesses generally, and the plaintiff, among others, continued to charge their fees to Wright and Mott, and received pay of them, as they had before done ; that during the time the defendant so took the charge of the defence of said suits against Wright and Mott, he from term to term either subpoenaed or requested the plaintiff, and other witnesses, to attend as witnesses in said suits, and at the time of requesting the witnesses so to attend, he also requested the plaintiff and the other witnesses to attend as witnesses in the suit in his name, as administrator of Wadsworth, but that "at no time, during the plaintiff’s attendance as a witness in said suits, was he called upon or sworn, as a witness in the suit in favor of the defendant, as administrator, nor did the plaintiff, at any time"' during the pendency of said suits, attend expressly as a witness in the last mentioned suit, nor was he ever detained at court, after the trial of the suits in favor of Atkinson, as a witness in the other suit.</p> <p>From these facts, the auditor found nothing due from the defendant to the plaintiff, but, if the county court should be of the opinion that the plaintiff was entitled to recover, then he found for the plaintiff to recover against the defendant the sum of $46,49.</p> <p>The county court rendered a judgment for the plaintiff, and the defendant excepted.</p>

<p>p. gave a note to W. payable to bearer, and before he was notified of any transfer thereof, a judgment was rendered against him therefor, as trustee of W. This is a legal defence to an action afterwards commenced against him by E. as the bearer of said note If there has been legal service of process, judgment of a Court, rendered upon such process, remains in full force until reversed.</p>

<p> (In Chancery.) </p> <p>A decree on a hill to redeem, in this state, is the same as on a hill to foreclose the equity of redemption, to wit, to fix on a definitive period of payment, and, in case of failure, decree a foreclosure of the equity of redemption. Rule as to cost.</p>

Trespass, de bonis asportaiis. The testimony in the County Court tended to show that the defendant and E. A. Garfield were joint owners of a printing press and types, which were attached by the plaintiff, as constable of North Hero, on a writ in favor of Horace Wads-worth against said Garfield ; that after the attachment and the removal of a part of the property attached', and before the inventory of the articles was completed, and while the plains tiff and his assistants…

<p>This was an action of book account, brought in the County Court, and judgment to account having been rendered therein, an auditor was appointed, who reported ; — that in the spring of the year 1835, two of the plaintiffs, viz. Bowman and Hodgson, and one Jeremiah Hall, were owners of a canal boat, each owning one third; that the boat being out of repair, Bowman and Hodgson repaired it, at their own expense, and made a contract with the plaintiff, Cummings, to sail said boat during the season of that year, by the terms of which the said Cummings was to pay all the necessary expenses of sailing said boat, and of taking and carrying freight, and the said Bowman and Hodgson were to have one half of the earnings of the boat, and the said Cummings the other half, each party losing one half of all bad debts made in the business, and each paying one half of all other losses; that plaintifl, Cummings, sailed said boat agreeably to said contract, and, after the close of navigation, the receipts of cash and other property were divided between said parties, including all demands due for freight which were considered good, leaving the bad and doubtful ones for a future division, if collected; that the account against the defendant, to recover which this suit was brought, was one of the doubtful demands not divided ; that the defendant contracted with Cummings to freight the goods for which the defendant is charged ; that it did not appear, that the defendant, at the time of making the contract, knew who owned the boat, but it did appear, that while the first freight, charged by the plaintiffs, was being received on board of said boat, the defendant was present, and also the plaintiffs, Bowman and Hodgson, and at that time the defendant tried to prevail upon Bowman and Hodgson to let the boat go through to Troy or New York, with the freight then taken on board ; that it did not appear that Hall, the other part owner of the boat, either affirmed or disaffirmed the contract, made by Bowman and Hodgson with the plaintiff Cummings, though it was generally known on Isle La Mott, where the plaintiffs resided, that Hall owned a part of the boat; that there was no dispute as to the amount of the plaintiffs’ claim ; that, if they were entitled to recover in this action, the sum of $36,52 was admitted to be due, and the auditor found that sum due from the defendant to the plaintiffs. The county court accepted the report of the auditor, and rendered a judgment thereon, in favor of the plaintiffs, and the defendant excepted.</p> <p>There is one of two conclusions that cannot be avoided. Hall should have joined in the suit, or it should have been brought in the name of Cummings alone. Graham et al. v. Robertson, 2 T. R. 282.</p> <p>The fact, that it did not appear whether the defendant knew or did not know who the owners were until after the bargain was made, could not affect the question. The act of one partner, relating .to the vessel, was the act of all. .Law merchant, 428, 432,100, 103, 104.</p> <p>The non-joinder of Hall was properly taken advantage of before the auditor. Loomis v. Barritt, 4 Vt. R. 450. Hilliher v. Loop, 5 Vt. R. 116.</p> <p>The question of nonjoinder and misjoinder of parceners, tenants in common, and joint owners, always has been whether each might sue for his proportion, or whether all must join, but not whether part could sue for the whole debt as in this case. Archbold’s Pleadings, 56, 57.</p> <p>Joint owners are not always partners, and the mere fact of joint-ownership, can never be evidence of a partnership, nor that the owners of property have a direct interest in all contracts made relating to it. In this case, Hall was not a party to the contract made with Cummings, nor to the one made with the defendant, and there being no partnership in the business in which Hall had any interest, he ought not to be joined with the other plaintiffs in the suit.</p>

Trespass, quafe claUsum fregilo Plea — Not guilty and issue to the country.

Assumpsit, on a promissory note for thirty dollars. Plea —Non assumpsit. Issue to the court. On the trial in the county court, the defendant admitted the execution of the note, and, to avoid it, for want of consideration, proved the following facts. Alanson D. Loop, deceased, was in his lifetime guardian of his two sisters Almira E. and Melissa A. Loop. The defendant was executor of the said Alanson’s last will and testament.

<p>Assumpsit, for money had and received. Plea — General issue.</p> <p>Upon the trial in the county court, the plaintiff gave in evidence a statement, in which he made the defendant debt- or for moneys collected of one Harry Hill, and credited the defendant for sundry payments, showing a balance in the defendant’s hands of about $300, and introduced testimony tending to prove that the defendant had admitted such balance to be correct.</p> <p>The defendant then read in evidence a letter, dated June 24, 1835, from Joseph Russell, one of the persons interested, and for whose benefit the moneys were collected by the defendant, in which Russell stated the sums paid over by the defendant, and acknowledged that such sums reduced the amount in the defendant’s hands to $ 160. The defendant also offered an account in his favor, for services rendered in collecting the moneys for the plaintiff, which purported to have accrued previous to June 1835, and evidence to sustain the account. To this evidence the plaintiff objected, and, as the defendant had read the letter from said Russell as evidence for him, and there being no plea in offset, the court rejected the evidence. The jury returned a verdict for the plaintiff, and the defendant excepted to the decision of the court, rejecting the evidence by him offered.</p> <p>An attorney has a lien on all papers in his possession, although his charge is not in the cause for which the papers are delivered. Montague on lien, 61. And his lien extends not only to papers, but to moneys and judgments recovered.</p> <p>The courts of all countries are inclined to favor the lien of an attorney, as advantageous both to the attorney and his employer, and will not order or compel him to surrender up papers, until his claims are satisfied. 2 Mad. Ch. 576.</p> <p>If an attorney has a lien on moneys, papers, &c. for njon* eys paid out and services performed, in prosecuting and de- . * . ,, lending suits, why should he not have the same hen tor all business done, or moneys paid out by him as an attorney, although the charges might not have been taxable as costs ?</p> <p>The defendant, having given in evidence Russell’s letter, for the purpose of proving the balance in his hands to be $ 160, instead of $300, is precluded from showing by other evidence that a less sum was due.</p> <p>The defendant’s claim for services could not be given in evidence, under the general issue. He should have pleaded it in offset, and not having done so, the' court below properly rejected the evidence offered to sustain it.</p>

'The orator alleged in his bill, that on the 8th July, 1807, lie received from John Knight and Elijah Hyde a deed, in consideration of $100, of one equal undivided half of the Gordon farm, so called, that is, of the lots drawn to the original rights of Thomas Tolman, Samuel Herrick, and John Wood, and entered into possession of the premises conveyed by said deed ; that on the 3d March, 1808, said Knight and Hyde, in consideration of $ 1800, by warranty deed, conveyed one…

This was an appeal by the administrators of the estate of Wiliam Slade to this court from a decision of the probate court on 'the settlement of an account of their administration, making Samuel S..Phelps, one of the administrators, debtor .to the estate in the sum of $ 188.65.

Trespass on the case, to recover-a penalty imposed by an act of the legislature, for travelling upon the plaintiffs’ road, and turning out of and again entering said road, with intent to evade the payment of toll. Plea — not guilty. Issue to the country.

This was an action of book account, which had been referred to an auditor, who reported, that the only item of charge in the plaintiff’s account was for a horse, at forty-five dollars; that the horse… Held: that a domestic spinning jenny, the only charge on the plaintiff’s book, could not be recovered in the action on book. If that decision be law, it puts an end to the present question. Bray. Rep, 39.

<p>Appeal from an order of removal of a pauper.</p> <p>It appeared from the copies of the appeal, that Luman Case, overseer of the poor of Bristol, filed his complaint before two justices, agreeably to the statute, setting forth that one William Amidon, late of Braintree, in the county of Orange, had come to reside in said Bristol, and had not gained a legal settlement in said Bristol, and had become chargeable, for his support, to said town of Bristol, and prayed that said Amidon might be examined, &c. Whereupon a warrant issued in due form of law, directed to either constable of said Bristol, to bring said Amidon before said justices on the 17th day of May, 1836, &c. — which warrant was executed by the said Luman Case, who was also one of the constables of said Bristol. The record of the justices who made the examination, after reciting the filing of the complaint and the issuing of the warrant, is as follows :—</p> <p>“ Whereupon, after hearing the proofs and examining the “ same; — It is considered by the court, that the said Wil- “ liam Amidon has come to reside in the town of Bristol, “ and hath not gained a legal settlement therein, and that (( g£¿d William Amidon is chargeable to said town of “ Bristol, when in fact, the said William Amidon belongs to, “ and has his legal settlement m, the town of Braintree, and u ]le 0Ught, of right, to be removed to said town of “ Braintree agreeably to law ;” and it further appeared from said record, that said justices ordered the pauper to be removed to said town of Braintree, on or before the 24th day of May, 1836, and on his neglect or refusal to comply with said order, that he be removed “ with his family and effects, “ according to the statute in such case, made and provided;” and that on the 10th day of December, 1836, the town of Braintree appealed to the (then) next stated term of the county court. Upon the entry of the appeal in the county court, the appellants moved to quash said order of removal,—</p> <p>1. Because the complainant, Luman Case, served the process, which issued upon his own complaint.</p> <p>2. It did not appear that the justices examined the pauper on oath.</p> <p>3. Their certificate did not show that a copy of the order of removal was left with the town authorities of Brain-tree.</p> <p>4. Neither does it show any notice to the town of Brain-tree.</p> <p>5. The names of the pauper’s family are not inserted in the order of removal.</p> <p>The county court overruled the motion to quash, and the defendants excepted.</p> <p>I. The policy of our laws has been to commit the service of process to those wholly disinterested and disconnected with the proceeding; and a person, on whose complaint the whole proceeding is had as an overseer of the poor, or a grand juror, is, in such a sense, a party to the proceeding, that he cannot serve a writ or other process in the case. And this results as well from general principles of law, as from a sound construction of our statutes.</p> <p>It may be said, that the statute in this case directs the process to be directed to a constable, without any such condition as appears in the judiciary act. But the same may be said of the justice act. Stat. 127. The case of Essex v. Prentiss, 6 Vt. R. 47, shows that this is to be construed in connexion with the judiciary act. Fairfield v. Hall, 8 Vt. R. 68. Weston v. Coulson, 1 Wm. Black. R. 506.</p> <p>II. It is necessary that the pauper should be examined on oath. The statute is imperative. If, from any cause, the pauper cannot be examined, such as insanity, it makes an exception to the rule, but does not affect the rule itself.</p> <p>If the pauper must be examined, then it must so appear in the proceedings; for the town, seeking the removal, is bound not only to proceed according to law, but to show in the order of removal, that the provisions of the statute have been complied with. The right to make the order must appear in the proceedings, but that right does not appear and does not exist, until they have examined the pauper on oath. Stat. 37, sec. 3. Waterford v. Brookfield, 2 Vt. R. 204. Hartland v. Williamstown, 1 Aik. R. 251.</p> <p>III. An order to remove A. B. and family is erroneous and, on motion, will be quashed.</p> <p>1. The complainant, in this case, had authority to serve the process upon the pauper, as he was one of the constables of Bristol. The statute requires the direction of the process to the constable of the town. See Stat. 370.</p> <p>2. The law does not require that it should appear, from the proceedings before the justices, that the pauper was examined on oath. They had jurisdiction of the matter, and as their record is in the usual form, and shows, that, from the evidence before them, they found the facts set forth, the presumption is that the evidence was such as the law requires.</p> <p>3. Neither is it necessary that it should appear, from the certificate of the justices, that a copy of the order of removal was left with the town authorities of Braintree. Hart-land v. Williamstown, 1 Aikens’ R. 241.</p> <p>4. Unless it appears from the records and proceedings, that the pauper had a family, the exception taken, that the order did not specify the names of the pauper’s family, cannot prevail.</p>

<p>If the general owner of chattels part with the possession for a definite term, he cannot sustain trespass or trover for an injury done to the thing, during the continuance of the term.</p> <p>But if the bailee apply the thing to a different use from that for which it was bailed, his interest is determined, and the bailor may sustain trover for the injury, against all concerned in the transaction. E. g. if the hirer of a chattel for a year, sell it during the year to one knowing his interest, the owner of the chattel may sustain trover against the purchaser.</p>

<p>Ejectment. The plaintiff claimed title to the land in question under a deed from the defendant to him, in which the land conveyed was described as “ all the first division, “ drawn to the right of Ebenezer Walbridge, except forty-six “ acres and one fourth, off the west end of said lot.”</p> <p>On the trial in the county court, the plaintiff gave in evidence the defendant’s deedjto him, and it was admitted that, if the lot referred to in the deed were divided by a straight line, parallel with the west line of the lot, in such manner as to leave to the defendant the number of acres by him reserved, the premises sued for would be conveyed to the plaintiff by the deed aforesaid. The defendant’s possession of the land in question was also admitted.</p> <p>The defendant then offered evidence, tending to show that said lot had been anciently divided between several owners, by a line neither straight nor parallel with the west end thereof, by which division the westwardly portion contained the number of acres reserved in the defendant’s deed, and had been occupied and owned by defendant., and the easterly portion of the same, containing the residue of the lot, had been owned and occupied by one Philips ; that the defendant and Philips had always occupied to this last mentioned line, upon which their division fence had been erected; that afterwards, the whole lot becoming the property of the defendant, he had conveyed, by the deed aforesaid, the easterly section to the plaintiff; that before this deed was executed, the last mentioned line was shown to the plaintiff, as the division line between the parties, and that at the time of executing the deed, it was understood that this line was to be the dividing line between them ; that plaintiff stated he was purchasing only the Philip’s farm, and that this was said with reference to the land in question, the boundaries between vyhich and the Philip’s farm had been pointed out, and that the defendant, had possessed the land in question ever since.</p> <p>It was conceded that, if this last mentioned division line should be adopted; the plaintiff had derived no title to the land in question, by the deed aforesaid.</p> <p>The plaintiff objected to the admission of this evidence, upon the ground that it tended to vary the legal effect of the deed, but the court overruled the objection and admitted the evidence, and the jury returned a verdict for the defendant.</p> <p>To which decision of the court, in admitting the evidence, the plaintiff excepted.</p> <p>1. The reservation in- the deed of forty-six and one fourth acres, from the west end, is a reservation by a line parallel with the west line. This is the natural and reasonable construction of the deed, and any other principle, adopted in such cases, would leave similar questions wholly indefinite and vague.</p> <p>2. If this be the legitimate effect of the deed, it cannot be varied by parol testimony. If it be admissible to adduce parol evidence, to enlarge, diminish, or vary the force of words, and in a deed in relation to boundaries, it is difficult to see what part of a deed may not be affected by parol. If there is an ambiguity in this case, it is one that must be ex-jplained by the instrument itself.</p>

Assumpsit, upon the warranty of a horse. This case was referred by the .county court, by agreement of the parties, and the referees reported in favor of the plain? tiff.

Ejectment, for thirty-three acres of land in Shoreham, being the south part of lot No. 8, in the third division of the right of Jonathan Gates. Plea — Not guilty, ■ and issue to the country. The defendants were admitted to be in possession of the demanded premises.

This was an action of book account, brought to the county court.

This was an action of book account, brought into tiie county court, by an appeal from the decision of a Justice of the peace, and a judgment to account having boon rendered therein, the case was referred to an auditor, who reported, that the plaintiff’s account was for boards, plank, and sled-runners, delivered from time to time to the defendant, in the year 1830; that the defendant directed the plaintiff' to keep an account of the quantity, with a view to a future…

<p>A. & D. were copartners in trade. They dissolved, and D. assigned to A. all the property and debts, to collect and account for. D. being indebted to T., assigned his interest to him to pay said debt, and account for the balance. Afterwards A. also assigned all to T., to pay his and partner’s debts to T. For the money received by T. hereon he does not become the bailiff of the plaintiffs jointly, but to each severally, for their respective interests, so severally assigried to him.</p>

This was an action on the case for the default and neglect of John Harrington,late constable of Middletown in this, that the said ponstable had neglected to sell and apply on an execution, which he had in his hands, as such constable, in favor of the plaintiff against one Isaac Pierce, certain personal property which he,the said Harrington,as such constable, had before attached at the suit of the plaintiff against said Pierce,in which suit plaintiff had obtained a judgment,…

<p>Foreign attachment cannot he sustained against a partnership, ns absconded or concealed debtors, unless all the members of the firm have absconded or kept concealed.</p> <p>A plea in abatement in such case, that one of the debtors is not an absconding or 'concealed debtor, is sufficient.</p>

<p>A corporation, especially an eleemosynary corporation, cannot be assessed and set in the list and taxed for money on hand or debts due to it.</p>

<p>This was an action of debt, originally brought against the defendant and one Rodney C. Royce, since deceased, on a bond given by them to the plaintiff, in the penal sum of four thousand dollars, dated July, 9, 1832. The defendants prayed oyer of the bond and the condition thereof, which condition is as follows ;—</p> <p>“ The condition of the above obligation is such, that, “ whereas the said Rodney C. and Silas II. have heretofore “ been in the practice of law in co-partnership under differ- “ ent articles; now if the said Rodney C. shall well and truly “ pay all the debts contracted by the said Rodney C. and “ Silas H. or either of them, jointly or severally, in the pur- “ chase of books, borrowing of money, or any otherwise in “ the prosecution of their business, and shall indemnify and “ save harmless the said Silas II. from and against said debts “ and all other responsibilities and claims incurred by them, “ or either of them, by becoming bail in suits, by negligence “ in the collection of demands, or by any other means in the “ course of the business they have transacted, and in the “ management of that which remains on hand, then this “ bond to be void otherwise of force.”</p> <p>The defendants pleaded non damnificatus.</p> <p>The plaintiff replied that at the time of the making of said bond, a promissory note, before that time executed by the said Rodney C. and Silas H.in the prosecution of their copartnership business to one William Page for $485, dated Nov. 19,1827, payable in one year from date, with interest, was outstanding and unpaid ; that said Rodney C. had neglected and refused to pay said note, and that Silas H. afterwards to wit, on the 14th day of August 1835, at Rutland was compelled to, and did confess judgment on said note, before Solomon Foot, a justice of the peace in and for the county of Rutland, in favor of said Page for $569,13 damages and 59 cents cost, and afterwards, to wit, on the 22d day of August 1835, the said Silas H. was forced to and did pay to the said Page the amount of said judgment, whereby the said Silas H. had been damnified.</p> <p>The plaintiffs rejoined, traversing the allegation of the plaintiff in his replication, that said note was given by said Rodney C. and Silas H. to the said Page in the prosecution of their co-partnership business, and issue was joined to the court.-</p> <p>Upon the trial in the county court, the plaintiff proved that, on the 20th day of Nov. 1827, the plaintiff and Rodney C. Royce entered into co-partnership as attorneys, by articles of agreement of that date and continued said co-partnership until the — day of — 18 — -, when the same was dissolved, and offered evidence which proved the following facts, viz; that a day or two before the date of the said articles of co-partnership, and also before the date of said promissory note, the said Rodney C. and Silas H. concluded to form a co-partnership, as attorneys in the practice of law, and purchased a library of law books, for which said note was given, which books were owned and used by them in their co-partnership business until the dissolution of said co-partnership, and were afterwards owned and used by the said Rodney C. during his lifetime, and that the plaintiff had paid on the judgment in favor of said Page against him, the sum of $486,67. To the admission of the evidence showing the consideration of said note, and the circumstances under which the books were purchased by the plaintiff and said Royce, and that they were used by them during the continuance of said partnership and afterwards by said Royce, the defendant objected, but the court overruled the objection and admitted the evidence.</p> <p>The defendants insisted that the said debt to said Page was not contracted in the prosecution of said co-partnership business,under said articles of co-partnership,within the meaning and intent of said bond, and that the obligors were not, by the condition of said bond, responsible for debts contracted by the individuals composing the partnership. But the court decided otherwise and rendered a judgment for the plaintiff, to which decision the defendant excepted.</p> <p>In this case, the liability resting upon the defendant arises solely from his bond. By an examination of the bond, it will be perceived, that the liabilities incurred under the bond are large, and, to a certain extent, indefinite, but these liabilities cannot be extended by construction or by parol.</p> <p>As against a surety, this bond must receive a strict com struction. 2 T. R. 360.</p> <p>The most that can be said of the debt in question is, that it was a debt contracted in contemplation of a partnership. The condition of the bond embraces not only Joint but several debts, contracted by either individual composing the firm, if by construction or by parol the condition of the bond may be so extended as to take in a joint debt, it may also take in a several debt, contracted in contemplation of a partnership.</p> <p>The fact that Royce &. Hodges contracted the debt with Page, before the date of the articles of partnership, is of no consequence. The bond is not limited to debts incurred after the date of the articles. It covers all debts contracted in the purchase of books, or otherwise, in the prosecution of their business. The case shows this debt was so contracted, and it comes clearly within the scope and meaning of the bond.</p>

<p>Held, that If one receive money and promise to pay it over to a third person, _ such third person may sustain an action to recover the money.</p> <p>If the contract also contain a promise of indemnity to two others, liable for the same thing, in different relations, and who do not pay money out of any joint fund, their right of action, if any, is several and not joint.</p> <p>But a person collaterally interested in a contract, where another is principally interested and is the occasion of the consideration, and the party with whom the contract is made, cannot sustain enaction upon such contract.</p> <p>Dubitatur, whether money received under a legal obligation to repay the same with interest; forms any legal consideration for a promise beyond that..</p>

<p>Where a case is removed from the comity to the supreme court, on exceptions, this court will revise only those questions which are excepted to in the court helow. E. g. if decisions arc made against the plaintiff, by which he fails to recover for his entire claim, and the cause is finally removed into the supreme court by defendant, on exceptions, the plaintiff' must also file his exceptions to those decisions which are against him, or they cannot he revised in this court.</p> <p>Goods sold aud delivered, in payment of usurious interest, cannot he charged on book and recovered for. The recovery should be sought in the mode pointed out by statute.</p> <p>Goods assigned to be disposed of and converted into money, and the proceeds ajjplied in a particular manner, cannot he recovered for in the action of hook account.</p> <p>Semble, That the appropriate remedy in such case is either assumpsit, or account, at common law.</p>

Trespass, for taking two oxen and other articles of personal property. Plea — Not guilty, and issue to the country. The plaintiff claimed the property in question, by virtue of an attachment made by him, as constable of Danby, on a writ in favOr of Isaac McDaniels, against one Jared L. Hulet.

The facts in the case are stated in the opinion of the court, delivered by Redfield, Chancellor. — This was a bill of foreclosure. The respondents filed their answer within the rule, and the orators set down the case for hearing, on bill and answer. 1. The answer claimed, and so alleged, that one fifth part of said mortgage had been assigned to Robert Temple, in his lifetime, and by the respondents paid to his administrators, since his decease. 2.

<p>In an action upon a note, signed by one of two partners in the partnership name, for a purpose not connected with the partnership, and with-' out the knowledge of the other partner, testimony, tending to show a subsequent recognition of the note, by the latter, is within the exclusive province of the jury to weigh, and the court ought not, in such case, to pass upon the sufficiency of the testimony, and direct a verdict.</p>

<p>This was an action of book account, which had been referred by this court to auditors, who 'reported as follows;</p> <p>That the defendant contracted to deliver the plaintiff a quantity of coal, of a good quality, at six dollars per hundred bushels, payable in leather at Clark’s tannery, at Factory point, in Manchester, the defendant having previously examined the leather at said factory, and it being agreed between the parties that defendant was to select such kind of leather as he should want.</p> <p>Soon after this, plaintiff brought a load of coal to the defendant’s shop, which defendant objected to receiving, on account of its bad quality. The plaintiff then agreed that he would make it right in the price, if defendant would take it.</p> <p>The next day a second load was brought, of an inferior quality, which defendant refused to receive on the contract. The plaintiff then agreed that if defendant would take the coal, ;there should be no difficulty as to the price.</p> <p>The plaintiff afterwards delivered a third toad, of good quality, which was not objected to.</p> <p>A few days after this, plaintiff called on defendant for pay, 'demanding $19,50, being at the rate of 6 dollars per hundred bushels, for 325 bushels, the whole quantity delivered. ■Defendant objected to the amount, and said he would pay him $14, 04, at the tannery, and requested plaintiff to go With him and select the leather, but the plaintiff refused, saying he would take nothing less.</p> <p>Soon after this, the defendant set off on a journey, having previously directed his son to settle with plaintiff, even if lie had to allow him more than the coal was worth-The plaintiff called on defendant’s son for the pay, claiming 6 dollars per hundred bushels. The son offered to pay at the rate of $5,00 for the two first loads, and $6,00 for the third, and requested plaintiff to go with him to the tannery, and make his selection of the leather. But plaintiff refused to go to the tannery, or receive the amount offered.</p> <p>The auditor? also reported, that defendant had made an arrangement with the owner of the tannery, for leather, to pay for the coal, and that the leather was ready for the plaintiff, and always has been.</p> <p>The decision of the auditors was in the alternative * that if this court should be of opinion, from the foregoing state® ment of facts, that the plaintiff ought to recover, they found for the plaintiff to recover $ 15,00 upon the balance due up-, on his account, together with the interest thereon, amounting in the whole to $18,30, for which the defendant was in arrear to the plaintiff, together with plaintiff’s costs; but if the court should be of a different opinion, they reported that the defendant recover his costs$</p> <p>I. No offer to tender, can be considered as equivalent to an actual tender, where it is in the power of the debtor to. complete his payment, without some, previous act necessary to be done on the part of the creditor. And, in the present case, if it be considered, from the terms of the contract between the parties, that the plaintiff had the right of selection as to the kind or quality of leather, to be received in payment, yet, having neglected to make that selection, the defendant is not excused, as the right of selection would, of course, by law, devolve on the defendant, and he had a right to turn put such leather as hp pleased. 3 Day’s R-827.</p> <p>II. The offer which the defendant made, did not amount to the sum found by the auditor to be then justly due, and would, on that account, have excused the plaintiff from signifying his intention, if it had been otherwise requisite on his part.</p> <p>By the terms of the contract, three things were stipulated for the plaintiff to perform, before any duty devolved upon the defendant.</p> <p>1st. To deliver the coal, of good quality, at the defendant’s shop.</p> <p>2d. To call for his pay at Clark’s tannery.</p> <p>3d. To select and make known the kind of leather which he wanted in payment.</p> <p>Any call or demand for pay at any other place than the one stipulated by the contract, would lay the defendant under no obligation to perform on his part.</p> <p>Place of payment, says Chipman, should be always stipulated by the parties, and made part of the contract. Chip, on Contracts, 23.</p> <p>This principle seems to have b.een understood and acted upon by the parties, and courts will always take into consideration the situation and circumstances of parties, and so construe their contracts as to carry into execution their intentions.</p> <p>The selection of the leather could have been made at no other place than the tannery, and the case finds the fact, that the defendant had done his duty, by having it ready for the plaintiff, whether the defendant was there or not</p> <p>But, if the plaintiff might have demanded the leather at any other place, wherever he might happen to meet the defendant, it cannot, with any reason, be urged, that a demand of $19,50, where, at most, but $15,00 were due, could have laid the defendant under any obligation to tender, much less could the defendant tender, until the plaintiff had signified, or made his selection of,, what kind of leather he would receive. 3 Starkie’s Ev. 1391, 2, 3. Barney v. Bliss, Chip. R. 399.</p> <p>Up to the time of commencing the suit, or even to the present day, the defendant had done no act, nor omitted any duty, which entitled the plaintiff to dispense with the performance of the condition precedent, on his part, to have been performed.</p> <p>Had the plaintiff declared specially on this contract, he must have averred and proved a performance of the condition precedent, on his part, or an excuse for non-perfoj¡mance» Chit. Plead. 309.</p>

This was an appeal from au order for the removal of Sylvia White, a pauper, from the town of Rupert to the town of Sandgate, made on the 21st day of' April, 1837. Plea — ■. that the pauper was unduly removed, because the residence of the said pauper was not in the town of Sandgate, at the time of making said order of removal, and issue thereon was joined. The appeal was entered in the county court, at the June term, 1837, and the issue was tried at the December term, 1837.

<p>. The return of an officer, of the levy of an execution, is conclusive, for the purpose of passing the title of the debtor in the execution, and is not to he supplied or contradicted by any one.</p> <p>The caption of a deposition, taken by a plaintiff, must state the names of all the defendants.</p>

Debt, on a bond given to the probate court, by the defendants, as surety for Elisha Lovett, administrator of the estate of-Elijah Lovett, deceased, dated February, 4, 1825. A judgment was rendered in the county court for the penalty of the bond at the December term, 1836, and at the December term of said court, 1837, the issues on the breaches assigned by the prosecutor were tried.

This was a bill for the foreclosure of a mortgage, from Phebe Hill, one of the defendants, to the orator. The hill set forth,— 1. The mortgage from said Phebe Hill to the orator, dated Jan. 7, 1833 ; 2. A mortgage from said Phebe Hill to Phebe Maria Hill, of the same premises, dated March 16, 1833 ; 3. A mortgage of the same premises, from Phebe Hill to Nathaniel Cheney, jr. dated March 18, 1833 ; 4.

<p> (In Chancery.) </p> <p>Where an estate is mortgaged, and the mortgagee assigns the mortgage to a third person, and subsequently takes a quit-claim deed from the mortgagor, the mortgage title does not merge in the fee.</p> <p>In such case, the mortgagee becomes mortgagor, and the assignee mortgagee.</p> <p>There can be rio such merger, unless the two estates unite in one and the samé person.</p> <p>If, after such assignment and quit-claim, the mortgagee mortgage the premises, the assignee having neglected to record the assignment, such subsequent mortgage will not hold as against the assignee.</p> <p>For the purposes of a foreclosure, a mortgage is a mere incident of the debt, and accompanies and follows the debt" wherever that is assigned, and, as the debt may be assigned by parol, the mortgage security may be transferred in the same way.</p> <p>It seems, that, to enable the assignee to maintain ejectment, in such case, it would be necessary that the assignment should be recorded.</p>

<p>A review may be had from a judgment, rendered on a writ of scire facias, brought by a prosecutor to recover damages occasioned by the breach of a probate bond.</p>

<p>An idiot, under guardianship, is not liable to be assod and taxed for money on hand or money due.</p>

<p>T. executed a bond to C., conditioned to “ support and maintain the obligee, to the extent of $1700, and the interest accruing on the same, during his natural life, and to furnish him with food, apparel, &c., until the whole amount of said $1700 should be expended in his support.” T. supported C. up to the decease of the latter, at which time a part, only, of the $1700 was expended ; — Held, that the condition of the bond was fully performed, on the part of the obligor, and that a mortgage deed, from T. to C., conditioned for the performance of the condition of the bond, became thereby void.</p>

This was an action of book account, commenced before a justice of the peace, and came to the county court by appeal. Judgment to account having been rendered, auditors were appointed, who reported a balance in favor of the plaintiff.

This was an action of book account, brought to the county court, by appeal, from the decision of a justice of the peace.

This was an action of debt upon a bond. The pleadings are set forth in the opinion of the court. The plaintiff was a member of the firm of Emerson, Dudley & Torrey, and of the firm of Emerson & Lamb.

<p>This was a suit commenced before a justice of the peace, and appealed by the defendant to the county court. The plaintiffs declared against the defendant, as bail on mesne process, in their favor against one Asahel Hubbard. The declaration began “in an action or plea of debt,” setting forth the issuing of plaintiffs’ writ against Hubbard, the service by arresting Hubbard’s body, that the defendant became bail, and the subsequent proceedings, in the usual form, to the return of non est inventus on the execution, and concluded, “to the damage of the plaintiffs $75, for the recovery of which” &c.</p> <p>The county court, on motion of the plaintiffs, dismissed the appeal, on the ground that the case was not appealable ; and the defendant excepted.</p> <p>]. The action is debt, demanding $75,00.</p> <p>The defendant was, therefore, entitled to his appeal, under the- first proviso to the fourth section of the justice’s act; and no other proviso or subsequent statute has taken the right away. Statute, 125.</p> <p>2. The writ is in form an original, and not a judicial one; and whether it contained a sufficient or insufficient declaration to sustain the action, is wholly immaterial to the present question.</p> <p>3. If the court are able to discover in this declaration, all the facts necessary to sustain a process of scire facias against bail on mesne process, the objection is not obviated.'</p> <p>4. The obligation of bail by endorsement is created by statute, and the remedy upon it being pointed out by the statute, and being declared to be by scire facias, it can be enforced by no other process.</p> <p>5. But if the court should sustain this process, as a scire facias, then we say the defendant was, nevertheless, entitled to an appeal.</p> <p>“In all causes cognizable before a justice of the peace, any person, who shall think him or herself aggrieved, by the sentence or judgment given or rendered, by such justice, shall have liberty to appeal therefrom,” &c. 1 Stat. 125, proviso of section 4.</p> <p>To determine, therefore, whether or not, the present case were appealable, it is only necessary to ascertain the meaning and import, of the word “ causes” made use of, in this statute.</p> <p>Although in strictness of language, the action, and the cause of the action, cannot, perhaps be said to be one and the same thing, yet the term “ cause” in this place, and in most other parts of the statute book, where it occurs, and by the legal profession generally, is made synonymous with the word “action.” 1 Stat. 136, <§> 3, and No. 4. $ 1, 149, $ l. 150, $ 2, and 151, proviso of $ 5, where both terms are used in the same section, and made convertible to express the same idea, and technically used to represent what an action is defined to be, viz. “ a lawful demand of a man’s right.” Co. Lit. 285, a. 2 Inst. 40, or, in other words, “an application to a court of law to redress a wrong.” 1 Swift’s Dig. 474. It is the “ demand,” or “ application,” or action, which the right of appeal, given by statute, entitles the party to remove from the inferior to the superior court. If, therefore, the present proceeding be an action, whether it be a scire facias or debt, or distinguished by any other name, it is most clearly appealable. It is not a continuation and part merely of some other action, as it doubtless would be, if brought to revive a judgment, or obtain execution, against the same parties. In such case, and in some others that might be named, an appeal might not vacate the judgment, or remove the main action, and the higher court could, perhaps, itself grant execution on the judgment below, or compel the inferior court to do so. The appeal might be entirely nugatory, and therefore not sustaináble. But the present is not that case. It is an original, distinct, and entire action by itself, based upon a separate and distinct liability, assumed by th.e bail. A new party is made defendant, who was not party or privy to the original judgment, against the debtor. An issue may be formed, a trial had, a judgment rendered, fpr or against the bail; and upon this judgment, and not on the judgment originally rendered against the principal, execution issues. 1 Stat. 66, <§> 29, and 110, No. 31, § 4. State Treas. v. Foster, 7 Vt. R. 53. 4 Bap. Abr. 409, Tit. Scire-Facias.</p> <p>If the Legislature, after enacting, that all actions shall be open to appeal, intended to suspend the right in this particular instance, they would have done so by an express except tion, as they have done in a case of scire facias against a sheriff's bail. 1 Stat. 102, <§, 2.</p> <p>The court will find a sufficient authority for sustaining this ' .appeal in Mach v. Nichols, 5 Vt. R. 200, and in Fuller v. Hoivard, 6 Vt. R. 501. Adams v. Campbell, 4 Vt. R. .448.</p> <p>It is very clear that no appeal lay from the judgment of the justice in this case, unless the act of 1797, giving jurisdiction to justices, applies to cases of judicial writs as well as to original actions, and we think it equally elear, that such a construction, cannot be sustained.</p> <p>1. Because it is inconsistent with many of the provisions of the act.</p> <p>By the provisions of th.e 12th section (p. 127) th.e parlies “ in any action pending before a justice of the'peace,” may make mutual offsets, and the justice is to render judgment for the balance. It will not be pretended that this can apply to cases of scire facias against bail, as, by the 29 th section of the judiciary act, judgment is to bo rendered in such case, “for the original debt or damage and cost, with the additional costs of suit,” unless just cause is shown to the contrary, or the principal surrendered. Stat. p. 66.</p> <p>By the 18th section of the justice act (p. 129) tire defend-.'ant lias a right of review at any time within three years after a judgment has been rendered against him, in all cases where he was absent from the state at the time the action was commenced, and no notice is shown to him before judgment, and upon such review, “shall take the benefit of all pleas and advantages, which he might have had upon the original suit.” Slat. p. 129.</p> <p>We think it will not be pretended that a judgment, upon scire facias against bail, may be revised at any time within three years after the rendition of jft, and thq principal surrendered in discharge of it. Such a construction would be consistent with the provisions of the 29th section of the judiciary act, which requires that the the principal shall be surrendered, and the costs paid before entering judgment on the scire facias, in order to discharge the bail. Stat. p. 66.</p> <p>By the proviso to the 4th section of the justice act, the right of appeal is mutual in all cases, where it is given, (p. 125) But still, it is very clear, that if the defendant in this case had surrendered his principal before the justice, the plain-; fiff could not have appealed.</p> <p>2. Because it is inconsistent with well established princi-: pies in scire facias.</p> <p>By the 4th section of the act, the question of jurisdiction js made to depend upon the amount of the debt or other matter in demand.</p> <p>In seÁre facias it depends upon where the record is, as it is well settled that scire facias must be brought in the game court where the judgment remains of record and can be brought in no other, and this without any reference to the amount of the judgment, Swift’s Dig. 583. 6 Term. R. 365. Carlton v. Young, 1 Aik. R. 332. Howe y. Bradley etal. 1 D. Chip. R. 27-2.</p>

<p>This was an action of debt, on two jail bonds, and came to the cofinty court by appeal from a justice of the peace.</p> <p>The- plaintiff declared in two counts;</p> <p>First, setting forth that .the plaintiff recovered a judgment against the defendant, Lewis, on the 7th day of November, 1833, at Sherburn, in the county of Rutland, by the consideration of Richard Eastbrook jr. a justice of the peace, in and for said county of Rutland, for the sum of seven dollars damages, and four dollars and seventy six cents cost; that an execution issued upon said judgment, for the sums aforesaid, directed to the sheriff of Windsor county &c. in due form of law, dated the 8th day of November, 1833, upon which the said Lewis was committed to the common jail in Woodstock,in the county of Windsor, and to procure for said Lewis the liberties of the jail yard, the defendants gave a jail bond, the condition of which had been broken and the jail bond assigned to the plaintiff.</p> <p>Secondly, that the plaintiff recovered a judgment against said Lewis, on the same seventh day of November, 1833, at Sherburne aforesaid, for the sum of five dollars and twenty five cents damages, and two dollars eighty-two cents costs; 'that an execution issued upon said judgment, for the sums aforesaid, in due form of law, dated the 8th day of November, 1833, upon which the said Lewis was committed to the 'common .jail in Woodstock-, in said county of Windsor, and •defendants gave a jail bond, to procure the liberty of the .jail yard for said Lewis, the condition of which had been broken, and the bond assigned to the plaintiff.</p> <p>The defendants, in the justice court, pleaded;—</p> <p>First, that the plaintiff never took out such executions, in manner and form as alleged in his declaration.</p> <p>Secondly, that neither of said executions contained any' command to the sheriff of Windsor county, or other proper officer, to commit said Lewis to the common jail, in said Woodstock ; and issue was joined.</p> <p>Upon the trial in the county court, the plaintiff offered in evidence, in support of the first count, a copy of the record of a judgment, in .favor of the plaintiff, and against said Lewis, which, after reciting the writ, recognizance and service, is as follows;</p> <p>“ State of Vermont, Rutland County, ss.</p> <p>“ Re it remembered, that, at a justice court, holden before “me, at Sherburne, on the 7th day of Nov. 1833, William “ Lewis, jr. of Windsor, was attached to answer unto Jere- “ miah Avery, of Sherburne, in an action on the case, de- “ manding the sum of ten dollars damage, as per original “ writ on record more fully appears — at which time the plain- “ tiff came, and the defendant came by J. Chandler, jr. his “ attorney, and put themselves on the court for trial, where- “ upon, it was adjudged by the said court, that the plaintiff “ recover of the defendant the sum of seven dollars, for his “ damages, and the sum of four dollars and seventy-six cents “ costs, whereof he may have execution.</p> <p>Richard Eastabrook, jr. justice peace.”</p> <p>The plaintiff also offered a copy of a writ of execution, purporting to have been issued on said judgment, directed to the sheriff of Windsor county, &c, for the sum of seven dollars damages, and seventy-six dollars and four cents costs, amounting, as stated in said execution, to eleven dollars, wherein the sherifl was commanded to commit said Lewis to the common jail in Windsor, in the cóuuty of Windsor; upon which the said Lewis was committed to the common jail in Woodstock, and a jail bond given thereon, which bond recited the judgment and execution as being for seven dollars damages, and four dollars seventy six cents costs.</p> <p>In support of the second count, the plaintiff offered in evidence a copy of a judgment in favor of plaintiff, and against said Lewis, which, after reciting the writ, recognizance and service, is as follows ;</p> <p>“ State of Vermont, Rutland County, ss.</p> <p>“ Be it remembered, that, at a justice court, holden before ' “ me at Sherburne, on the 7th day of Nov. 1833, William “ Lewis, jr. of Windsor, was attached to answer unto Jere- “ miah Avery of Sherburne, in an action on the case, de- “ manding the sum of ten dollars, as per original writ on rec- “ ord more fully appears, at which time the plaintiff came, “ and the defendant came by J. Chandler, jr. his attorney, and “ put themselves on the court for trial. Whereupon, it was “ adjudged by the court, that the plaintiff recover of the defendant the sum of five dollars twenty-five cents for his “ damages, and the sum of two dollars eighty two cents for “ his costs, whereof he may have execution.</p> <p>Richard Eastabrook, jr. justice peace.”</p> <p>The plaintiff also offered a copy of a writ of execution issued on said judgment, for the damages and costs aforesaid, beginning as follows; “State of Vermont, Windsor County, ss.” directed to the sheriff of Windsor county, &c., commanding him to commit said Lewis to the common jail in Windsor, in the county of Windsor, upon which the said Lewis was committed to the jail in Woodstock, and a jail bond given on said execution, wherein the judgment and execution aforesaid were correctly recited. Both writs of execution were dated at Sherburne, and signed by said justice Eastabrook.</p> <p>Upon this evidence, the county court charged the jury that the plaintiff was not entitled to recover, and the jury returned a verdict for the defendants.</p> <p>The plaintiff excepted.</p> <p>As to the allegation that, no such execution issued, as is recited in the bond, mentioned in the second count, we say that the bonds do not set out the executions in hcec verba, and there is clearly no variance in respect to the execution, issued on the judgment for $5,25 damages, and $2,82 costs. In respect to the other execution, it is perfectlyapparent, upon inspection, that the execution offered is evidence is the same execution referred to in the bond, and although the defendants in making their bond, thought proper to correct an obvious clerical error in the execution, it will not be permitted for them to take advantage of that fact to avoid their bond. We think that if no other difficulty existed, it should have been left to the jury, to say, whether the execution offered was in fact the same referred to in the bond.</p> <p>The next inquiry is, as to the executions themselves.</p> <p>It seems to be well settled, that mere irregularity in the process, will not avail the defendant in this action, that if it is merely irregular, it is in force until set aside by writ of error, which must be brought by the party himself, at which time the defendant can move to amend the execution-Such irregularity cannot, therefore, be taken advantage of, thus indirectly, either by the sheriff or his bail, but they will be liable to the defendant in such sum, as he might collect on the execution when amended.</p> <p>The only defect that will be relied on, in respect to the execution, mentioned in the second count is, that the venue in themargin of the execution, is set up as “ Windsor county, &c.” while in the body of the execution it appears to be dated at Sherburne, which is in the county of Rutland, where the judgment was rendered. This is clearly ameih dable, and does not render the execution void.</p> <p>If the name is incorrectly stated in the margin, and is truly stated in the body of the execution, this will not vitiate the proces. Mellon v. Barber, 3 D. & E. 387.</p> <p>As to the execution mentioned in the first count, it is merely irregular. In this the venue is correct, but in the recital of the previous judgment, the cost is stated at $76,04. Now this process, upon the face of it, is regular. It is is* sued by proper authority, having jurisdiction over the parties, and the subject matter, and although the cost appears to be larger than the debt, yet this might arise out of an action of trespass, or by continuance of defendant or otherwise, besides if not, it would be erroneous and not void. The sheriff was, therefore, bound to serve it, unless it were void, being founded upon a void judgment. But we find the judgment was regular, and the variance in the execution is an obvious clerical error, discoverable upon the.record itself. But it is well settled, that a mere misprision of the court, of this description, will not render the execution void, but the same may be amended. The party has not been injured. The sheriff was directed only to collect $11,00 in the whole, and the bond which he gave, was for the true amount of the judgment. The defendant ought to recover the amount of the original judgment, and it is not for defendant or his bail to object in this manner. Crolte Elizabeth, 165, Croke James, 288. Bissell v. Kip, 5 Johns. R. 100, Jones v. Cook, 1 Cowen’s R. Young v. Hosmer, 11 Mass. R. 89. Holmes v. Williams, 3 Caines’ R. 97. 6 Cowen’s R. 50. Wm. Jarvis jr. v. Josselyn fy Avery, 8 Vt. R, 287, Ear* vach v. Washborough, 2 D. & E. 737.</p> <p>This judgment ought to be affirmed ;—</p> <p>I. Because the defendants’ several pleas in bar were not demurred to, admitted and avoided, nor traversed, and judgment should have been for the defendants, for want of a replication. Shenoin et-al. v. Bliss, 4 Vt. R. 99,</p> <p>II. The executions, on which Lewis is alleged to have been committed, on the occasion of giving the bonds, were not supported by the judgments which were given in evL dence, but were variant and unsupported by any judg~. ments.</p> <p>1. The judgments given in evidence were rendered in B,utland county.</p> <p>2. The judgments, on which the executions issued and which are therein recited, were rendered in Windsor coun-i ty, — and the justice had no jurisdiction in that county.</p> <p>And the defendants are not estopped to deny or insist on the truth of the recital. Stilman et al. v. Barney, 4 Vt, R. 187-</p> <p>III. The executions contained no command, or permission to the plaintiff or his officer, to commit the said Lewis to the jail in Woodstock, where the bonds were taken, Lewis v, Avery et al. 8 Vt. R. 287.</p>

<p>This was an action of book account, in which judgment to account had been rendered in the county court, and auditors appointed, who reported ;-—</p> <p>That the defendant and Luther Foote, one of the plaintiffs were formerly co-trustees of Susan M. Grosman, a minor, and, in that capacity, had the control and management of an estate, belonging to the cestui que trust, amounting to $ 10,000; that Foote & Emerson had been partners in trade, and had employed a portion of the trust-fund in their business; that the defendant sold out his interest in the partnership to the plaintiffs, and, at the time of such sale, it was verbally agreed between the parties, that so much of the trust-fund, as had been employed in the business of Foote & Emerson, should remain in the business of the plaintiffs, and, as a consideration to the defendant for such agreement, the plaintiffs were to pay the interest on the amount to the cestui que trust, and were also to pay the defendant one hundred and fifty dollars per yoar for three years, in goods out of their store, as the defendant might want them ; that the goods, charged in the plaintiffs’ account, were received by the defendant under this agreement, amounting to $124,58; that the defendant presented before the auditors a claim, for allowance, of $415,00, for the use of the trust-fund, under the said agreement. The auditors allowed the whole of the plaintiffs’ account as charged, with the interest thereon, and concluded their report as follows;—</p> <p>1. “If from the foregoing facts the court should decide “ that the defendant’s claim should be wholly disallowed,</p> <p>“ then the auditors find there is due and in arrear, from the “ defendant to the plaintiffs, the sum of $147,10, including “ the interest on the plaintiffs’ account.</p> <p>2. “ If the court should decide that so much of the de- “ fendant’s claim, as is necessary to balance the plaintiffs’ ac- “ count, should be allowed him, and that the remainder “ should be disallowed, then the auditors find there is noth- “ ing due and in arrear, from the defendant to the plaintiffs “ to balance book accounts between them.</p> <p>3. “If the court should decide that the defendant’s whole “ claim be allowed him, then the auditors find there is due “ and in arrear from the plaintiffs to the defendant, to bal“ance book accounts between them, the sum of $283,97,</p> <p>“ including the interest on the defendant’s account.”</p> <p>The county court rendered judgment on said report, for the defendant to recover his cost. To which judgment the plaintiffs excepted.</p> <p>insisted that the contract found by the auditors was void</p> <p>1. Under the statute of frauds, and</p> <p>2. Under the statute of usury.</p> <p>Judgment ought to be rendered, on the third position statecl in the report, for the damages in favor of the defendant there reported.</p> <p>This is considered as being, between the parties, a mere ordinary transaction, in which defendant, for furnishing á part of the capital in trade with Foote & Stone; is to share in the profits to the amount of $150 per annum.</p> <p>It has no relation to the subject of usury, and it is believed tobe common for persons to furnish capital, under an agreement, that such persons shall receive, not for the use of money well secured, but for the risk run as fid its ultimate loss, a specified sum more than merely six per cfent interest, as a share 'of the profits. Or in such case, the party, furnishing funds, may share in tile profits-, be they more or less, and yet his capital furnished be on interest, and this premium or Share in the profits may vary according to the proportion between the funds thus furnished and the stock in trade.</p> <p>It is not perceived that as between these parties, the question is not the same as though the defendant had furnished, out of his own funds, a sum equal to one half the trust-fund left in the hands of the plaintiff, by the agreement.</p> <p>We are aware that when trustees make any profits by the use of the trust-fund, they are liable to the cestui que trust for the full amount of such profits.</p> <p>However this may be, the trustees will be alike liable to the cestui que trust for the profits made by the use of the fund, should it be thought proper, ever hereafter, to call them to account. The agreement, therefore, as between them, ought to be carried into effect.</p> <p>Surely no one can complain of this transaction, except the cestui que trust. Nor is it believed that any case can be found, in which the conduct of trustees in the use of the trust-fund, has been impeached, except by the cestui que trust. This is intended only of trustees of a fund merely private or individual, as distinguished from a public charity.</p> <p>But suppose we are altogether in a mistake, in attempting to sustain the position, that the defendant is entitled to recover the sum reported as the third altenMive, yet there will be little difficulty in sustaining the ground on which the county court acted, in entering up judgment on the second position reported by the auditors.</p> <p>1. This is in no sense a case within the statute of usury. To constitute usury, it is essential that there should be a loan of money or other property, for the use of which more than six per cent is reserved by the contract.</p> <p>But in this case there was no lending nor any thing of that nature. The moneys, constituting a large part of the fund of which the parties were both trustees, had been used by them in trade as capital, when they were in partnership, at the dissolution of which, the fund was in the hands of Foote the plaintiff. Foote still wished to employ it in trade, in the new firm of Foote & Stone, they paying the interest to the cestui que trust. And plaintiffs proposed to defendant, to pay him the sum of $ 150 per annum, in goods out of their store To this defendant agreed, and afterwards look up the goods in question, in pursuance of the agreement.</p> <p>The objection is, that they had no right to make such use of the fund, of which they were trustees.</p> <p>If the proceedings were improper, the parties were in pari delicto. And though perhaps the contract cannot be enforced at law, yet when performed in whole or in part, whatever has been paid cannot be recovered back, and the rule of law, melior est conditio defendentis, strictly applies.</p> <p>In another point of view, the plaintifi cannot recover in this action.</p> <p>The goods were not delivered under any agreement or understanding of the parties, either express or implied, that defendant was to be liable to pay for them. They were delivered on an entirely difierent consideration, add though it was proper for the plaintiffs to make a minute of them, that they might know when they had paid the $150,yet they never formed a proper ground for a book charge. The plaintiffs never sold, nor did defendant ever purchase them with any such view. The contract, under which they were delivered, might have been illegal, or the consideration might have been inadequate,but neither of these would justify the plaintiffs in charging them on book, or seeking relief, if they can have any, in this form of action.</p>

<p>Trover, for two oxen, one mare and one calf.</p> <p>Plea — Not guilty, and notice justifying the taking of the property by the defendant, as constable of Pittsford, duly authorized to serve process throughout the county of Rut-land, by virtue of two executions, one in favor of Samuel B. Spalding and George T. Hodges, and the other in favor of Amos Holt, and both against James Dain.</p> <p>Upon the trial, in the county court, the plaintiff offered in evidence an execution in his favor against said Dain, for fifty six dollars damages, and twenty-five cents costs, issued on a judgment rendered by Richard Eastabrook, jr., a justice of the peace, in and for the county of Rutland, upon the voluntary confession of said Dain, dated the 18th day of June, 1834, — which execution one Charles Shedd, was, by said justice Eastabrook, at the request and risk of the plaintiff, authorized to levy and collect, — together with the return upon said execution thereto attached, showing a sale of said mare and colt, by virtue of said execution, to the plaintiff, on the third day of July, 1834, which return was regular on the face of it, and was sworn to by said Shedd on the first day of June, 1836. The plaintiff also offered in evidence another execution in his favor against said Dain, issued on a judgment rendered upon the confession of said Dain, by said justice Eastabrook, on the same 18th day of June, 1834, for $99,00 damages and twenty-five cents cost, which last mentioned execution the said Shedd was, also, by said justice Easlabrook, at the request and risk of the plaintiff, authorized to levy and collect, with a regular return of said Shedd, thereto attached, showing a sale of the oxen and mare to the plaintiff, by virtue of said last mentioned execution, on the same third day of July, 1834, which return was also sworn' to by the said Shedd, on the same first day of June, 1836. The plaintiff introduced evidence tending to prove that said executions were the original executions issued by said justice Eastabrook, and that the defendant took the property in question. The executions, offered by the plaintiff, were not objected to.</p> <p>The defendant, to maintain the issue on his part, offered in evidence attested copies of the two executions, specified in the notice accompanying his plea, and copies of the executions introduced by the plaintiff, upon the back of which executions were endorsed the fees for levying the same, and also the following memoranda, viz., on the first described execution,</p> <p>“One cow $12,</p> <p>“ One mare and colt 48,</p> <p>60,</p> <p>45,</p> <p>$105.”</p> <p>And on the other execution, “one yoke of stags, at forty-five dollars, also one mare and colt.” The defendant introduced said Eastabrook as a witness, whose testimony tended to show, that said Shedd never returned said executions to said justice, until about the month of March following their date, ' and that they were never in the witness’ possession, with any other return thereon, than the fees for levying them, and the memoranda above set forth; that about the month of April following, the plaintiff, with witness’ consent, took said executions into his own possession, and that they had never been returned to him.</p> <p>The defendant introduced further testimony, tending to show, that Shedd found said property in said Dain’s possession, and drove it to Shedd’s house, and afterwards the plaintiff and Dain went before said justice Eastabrook, and said Dain confessed said judgments in favor of the plaintiff; that after the sale of said property by said Shedd, as specified in his said returns, it was taken back to the same farm whence it had "been taken, being the farm where said Dain then lived, and continued to live, until it was taken by the defendant; that said property was kept there until two or three days previous to the time when the defendant took it by virtue of the executions in his hands, when it was attached by one Rufus Graves, on a writ against the said Dain and Eli S. Gates and others, and was driven td one Woodward’s in Sherburne, axld two or three days afterwards, was driven back by said Graves to said Dain’s, the plaintiff in said writ, upon which it had been attached, having directed said property to be returned ; that said Dain refused to receive it, saying, he was out of hay, and that Graves took the proper-to Woodward’s, where the defendant found it and took it, as before mentioned.</p> <p>Upon this evidence, the defendant requested the court to charge the jury; that if they found that the returns of said Shedd, made upon said executions, were not made until after the executions were taken from said justice Eastabrook, by the plaintiff, the sale of the property by Shedd to the plaintiff could not be placed upon the same footing as Sheriffs’ sales, and that the continued possession of the property by Dain, after the sale, rendered the sale fraudulent in law, as to creditors.</p> <p>But the court charged the jury, that the sale of the property by Shedd to the plaintiff was to be considered as a salé by a sheriff, in reference to the question raised from the continued possession of the property, by Dain, after the sale, but that all the facts relied upon by the defendant, so far as proved, were proper for the jury to consider in determining whether the sale was fraudulent in fact; or not.</p> <p>The jury returned a verdict fdr the plaintiff; and the defendant excepted.</p> <p>Sales by virtue of executions, made by an authorized person, like the sales in question, ought not to be put upon the sanie footing as sales by a sheriff.</p> <p>Sheriffs are known officers of thé law, sworn to act impartially -and bound to return the precepts by them executed.</p> <p>When their returns are made, they become matters of record, and from such record all persons interested may know what has been done. Hence, a sheriff’s sale passes the property, and if the purchaser permits the debtor in the execution to keep possession of the property, such possession does not render the sale fraudulent in law, as to creditors. Batchelder v. Carter, 2 Vt. R. 168.</p> <p>But to extend this doctrine to a case like the one under consideration, would have the effect of making it a patent machine, for making fraudulent conveyances. The case shows that the person authorized to levy and collect the executions, in favor 'of the plaintiff against Dain, never made any return of his doings thereon to the justice, who issued them. For aught that appeared of record, at the time of the levy by the defendant, alias executions might have been issued on the judgments in favor of the plaintiff. It did not appear from the records of the justice, that the judgments or executions had ever been paid or satisfied by a sale of the property in question, or of any other property. Such being the fact disclosed by the record, and the property being in the possession of Dain, from the time of the sale by Shedd í'ó the time of the taking of it by the defendant, the plaintiff never having taken it into his own possession, we insist, that the doctrime of .fraud in lato is as applicable in this case, as -it would have been, had the sale been a private one from Dain to the plaintiff.</p> <p>The defendant was not entitled to the instructions claimed by him below, for two reasons ;</p> <p>I. Th’e property, when attached by defendant, was neither in the actual nor constructive possession of Dain, the judgment debtor.</p> <p>II. If it were, plaintiff’s title to the property is derived from a purchase, at what is tantamount to a sheriff’s sale on execution, where, from the notoriety of the transaction, no change of possession is necessary.</p> <p>Upon the first point, the request of defendant involved á feature, which we are not aware of having existed in any reported case, where the title of an otherwise tona fide purchaser has been defeated, upon the ground of fraud in law, viz. it predicates constructive fraud upon a constructive possession in the judgment debtor, at the time of the attachment, under which defendant justifies. The property was found by defendant, neither in the actual possession of Dain, the judgment debtor, nor of the present plaintiff, but it was then in the keeping and care of a third person, one Woodward, where it had been placed by still another officer upon an attachment against them both, which was eventually abandoned ; and where, it is not pretended, that Dain had, or ever had, any right or possession whatever. If the property was at that time Dain’s in fact, then was it constructively in his possession, after the relinquishment of that attachment; but if the plaintiff’s, by fair purchase, which the jury have found, then was the possession, at the time of the taking by the defendant, by construction of law, in the plaintiff.</p> <p>Upon the second point, no change of possession was necessary to perfect the plaintiff’s title. The instructions most favorable to himself, which the defendant could with any plausibility have claimed of the court below, would have been, that, inasmuch as Shedd, of whom plaintiff purchased, was authorised to act at his risk and request, in order to recover in this action, the plaintiff was bound to show that Shedd pursued all the steps, in the levy and sale by him to plaintiff, which would have been necessary to perfect a title in plaintiff, had the sheriff of the county had the execution, and conducted the sale. Surely, it will not be pretended, that the law is so unreasonable as to require more accuracy and formality of proceedings at the hands of an authorised person, in the levy of an execution, than it does of a sheriff.</p> <p>The case shows the sale to have been made by Shedd to plaintiff, by virtue of executions, regularly issued, upon regular judgments, the property levied upon and posted, and the sale conducted, in every particular, according to the statute ; and no objection is taken to the proceedings, except that Shedd, after the sale, neglected to draw out upon paper, regular and formal returns of his doings, and to return the same; with the executions, into the office of the justice issuing them, until after the property was attached by the present defendant.</p> <p>But, an authority in the officer to sell at the time, and an actual sale by him at public auction, on execution, advertised in legal form, vests the title, eo instanti, absolutely in the purchaser — not liable afterwards to be divested by any act or omission of the officer. Besides, the officer’s return is, in no sense, essential to, nor does it constitute any part of the title of the purchaser, at a sheriff’s sale. And, as it regards the debtor, the debt is discharged by the levy, and cannot be revived against him, whether the officer mis-apply the money, or make a return of his doings, or not. Kid v. Rawlison, 2 Bos. & Pul. 59. Boardman v. Keeler, 1 Aik. R. 158. Jackson v. Sternbergh, 1 Johns. Cases, 155. Beat-tie v. Robins, 2 Vt. R. 183. Bates v. Carter, 5 do. 602. Janes, admr. v. Martin, 7 do. 96. Ladd v. Blunt, 4 Mass R. 403.</p>

The declaration in this case was for a libel, and contained five counts, the first of which, after alleging, in usual form, the good character of the plaintiff, was as follows; s. And whereas, also,… Held: that for this scandal no action could lie, because the words were spoken by way of defence, in a court of justice. In King v. Bailey, And. 229, a paper had' been addressed to certain officers, for the removal of a subordinate, suggesting fraud.

Tins was a petition to this court, preferred at the present term, by John Downer, praying the court to vacate or affirm a levy of an execution in his favor against Noah B. Ha-zen, upon certain lands in Hartford, in the county of Windsor, described in said petition.

This Was an appeal from a decree of the probate court for the district of Randolph, dismissing the petition of said Woodward, for the repeal of letters of administration, granted by said court to the petitionee, upon the estate of Benjamin Emmons, deceased.

This was an appeal from an order of removal of Phebe Hatch, from Brookfield to Hartland. Plea, that she was unduly removed. Upon the trial in the county court, the following facts were proved. In March, 1818, Justus Hatch, the husband of said Phebe, had his legal settlement in Hartland, and there resided with said Phebe, his wife.

This was an appeal from a decree of the court of probate for the district of Randolph. On the 3d day of March, 1836, John Stone, the appellant, was appointed by said probate court, guardian of the minor children of Daniel Peaslee, deceased, and gave bonds according to law.

Trespass, for taking a two year old heifer. This case was submitted to the county court, upon the following statement of facts. The defendant, as constable of Orange, in the spring of 1837, attached the heifer in question, at the suit of Currier &.

This was an appeal from an order of removal of Lydia Wakefield, from Randolph to Braintree, as likely to become chargeable. Plea — that she was not likely to become chargeable, and issue to the jury. On the trial, the plaintiffs gave evidence tending to show that said Lydia was likely to become chargeable. The defendants gave evidence tending to show she was not likely to become chargeable.

This was a trustee process. The said James S. Moore disclosed that this, and other processes of the same kind, were served upon him, on the 28th day of January, 1834, that he was previously, on the same day, appointed administrator of the estate of Dayid Comstock, of which estate the wife of the principal debtor was one of the heirs; that he closed the settlement of said estate, at a probate court, holden on the 25th day of April, 1837, and that said estate then became…

The orator, in his bill, alleged, that William Carley, on the 21st March, 1808, conveyed, by deed of that date, to the defendant, John Smith, a certain piece of land in Brookfield, part of lot No. 2, in the tenth range, containing about fifteen acres, and that, on the 1st January, 1814, the said Carley, by deed of that date, conveyed to said Smith another piece of land, part of the same lot No. 2 ; that said Smith included the two pieces in the same inclosure, and continued…

<p>In all cases where the canse of action originates in contract, and the declaration, in form, counts upon the contract, the contract must be proved precisely as laid, and a variance, in any one feature of the contract, is fatal 3 — and this, whether the action be in form cx contractu, or in tort.</p> <p>Where the liability, as set forth in the declaration, is obviously founded in contract, but the injury complained of is, in its character, a tort, if the injury consist in omission only, it seems necessary to join all co-contractors ; but if positive misfeasance is complained of, it would be otherwise.</p> <p>Upon the sale of ahorse with a warranty or representation of soundness, the plaintiff may declare upon a warrantizando vendidit, alleging a scienter of the falsity of the warranty, and, in such case, he may recover, either upon the express contract, if proved, or, if the scienter be proved, he may recover for the deceit.</p> <p>Where a witness stated, in the presence of a party, what he had understood from another to be the terms of a contract, and the party replied “he never told his trades,” — Held, that such reply is no admission of the correctness of such statement, but, on the contrary, rebuts all inference of admission.</p> <p>If testimony be admitted, generally, in support of several counts in a declaration, which is admissible in support of a part only of such counts, it is error, unless the jury are properly instructed upon its application.</p> <p>An averment of a contract of sale, is not supported by proof of an ear-change.</p>

<p>It is a general rule, that if a creditor dischargo his debtor from arrest on execution, it is equivalent to a discharge from imprisonment, and virtually discharges the debt.</p> <p>But in order to bring a case within this rule, tho arrest must be unequivocal, clearly made out, and must be for the purpose simply of executing the process.</p> <p>Therefore, when an officer, holding an execution, called upon the debtor, who informed him that he should not pay the debt, but bo committed, unless the creditor controlled the execution, and the officer told the debtor that the creditor was at JM. the place where the jail was situated, upon which the debtor expressed a wish to see him, and the officer told the debtor to get into his wagon and go with him to M. when he should commithim, if no arrangement was made with the creditor, whereupon they started for M. and, on their way, met the creditor, who took the debtor from the officer, notwithstanding the officer’s remonstrance against his doing so, unless the fees were paid; — Held, that this was no arrest, and did not discharge-the debtor, and that a subsequent arrest and commitment were legal and valid.</p> <p>[f a debtor, in such case, be released at his own request, or by mutual assent, it is no discharge of the debt.</p> <p>Where a judgment is rendered by the county court, under a rule that such judgment is to be reversed by this court, in a certain event; — such rule, though binding- upon the parties, is not necessarily imperative upon this court; and where the case turns upon a point, not anticipated when the rule was made, and, in tho opinion of the court, requires the further action of a jury, it will be remanded fora new trial.</p>

This was an action of debt, on jail bond. Plea — Non est factum, and in bar, that the debtor went at large by the permission of the creditor. These issues were joined, by agreement of parties, to the court. The plaintiff proved the execution of the bond, and the existence of the record set forth in his writ, and the escape.

<p>Articles, left with an agent or factor for sale, may, when sold, be properly charged on book against such agent or factor.</p> <p>In such case a demand is necessary before a right of action can accrue, and the demand must be made at the agent’s or factor’s residence, and a sufficient opportunity afforded him to make payment.</p> <p>A demand made, in such case, after the date, but before the service of a writ against the agent or factor, when no cost for such writ is demanded, is sufficient.</p> <p>The general usage and practice of the country is important in determining what is a proper subject of charge on book.</p>

<p>This was an action of trespass for a cow. Plea — the general issue, and notice that the cow in question was taken by virtue of a process against school district No. 4, in the town of Moretown. The regularity of the process, and the taking of the cow under such process, were admitted. The defendant proved that the plaintiff had, for more than ten years, resided within the limits of school district No. 4, in More-town, up to the commencement of the present action, unless the limits of said district were altered by a recent vote of the town, and that, during all that time, and for years before, said school district had been reputed and known as a school district, by certain limits, including the farm on which the plaintiff resided.</p> <p>The plaintiff offered evidence of the proceedings of the town of Moretown, at their annual March meeting, in the year 1836, by which, in pursuance of an article in the warning, it was voted to erect certain individuals, including the plaintiff, into a separate school district, and also further proceedings of such district towards an, organization. It also appeared that this vote, at the adjourned meeting in April following, was rescinded.</p> <p>The plaintiff also introduced a copy, from the records of said Moretown, of a survey of the said separate district, which included the plaintiff’s farm. But it did not appear that such survey was made by the authority of the town.</p> <p>The county court directed a verdict for the defendant, to which direction the plaintiff excepted.</p> <p>1. The vote, setting off the plaintiff and others into a district by themselves, is void. The act of 1827, 2 Comp. stat. $ 2, p. 136, requires that, when a new district is created, it shall be defined by geographical limits, and be made to consist of territory, and not of persons. By the vote in question, the new district is made to consist of persons, and not of territory. This does not answer the requirements of the statute. Gray v. Sheldon, 8 Vt. R. 402. Cutting v. Stone} 7 do. 471. Withington v. Everleth, 7 Pick, 10Q. Perry v. Dover, 12 do. 206. Johnson v. Dole, 4 N. H. Rep, 478. The record of the survey does not cure the objection, as it does not appear by whom, or by whose authority it was made. To give it validity, it should appear to have been made by the direction of the town. The difficulty is, there is no vote of the town authorizing or recognizing the survey.</p> <p>2. The vote, passed at the adjourned meeting in April, rescinding the first vote, destroyed its effect. These votes are to be regarded as having been passed at one and the same meeting. The right of towns to create new districts, and to alter or abolish existing districts, is clearly recognized by the act of 1827 ; and, as the town had the power to divide district No. 4, at their annual meeting in March, so the same authority warranted the vote, at the adjourned meeting, avoiding that act.</p>

<p>This was an action of assumpsit- upon the following cáse stated;—</p> <p>At the time of the sale of the tickets, herein after mentioned, the plaintifl was, and still is, a citizen and resident of the State of Rhode Island, and the defendant was, and still is, a citizen and resident of this Slate. In the year 1836, the defendant, at various times, purchased tickets of the plaintiff, by writing to him at Providence, R. I., by mail, ordering lottery tickets in a lottery granted to the plaintiff for the benefit of schools, under an act of that State. The tickets were ordered to be sent by mail. The plaintiff answered these orders and, from time to time, delivered tickets, issued under the act aforesaid, to the defendant, by depositing such tickets in the post-office at Providence, under cover ofletters, directed to the defendant, at Montpelier, Vt. where the defendant resided at that time. Those letters were received by the defendant, with their contents, at the post-office at said Montpelier, they having been conveyed to him by mail The defendant made various remittances to the plaintiff, in payment for said tickets, through the medium of th ~ mail, which were received at Providence aforesaid, by the plaintiff. A balance of $ 180 is still due to the plaintiff, <br tickets thus sold the defendant, which balance the defendant, by a letter written in 1836, addressed to the plaintiff at Providence, and sent by mail from Montpelier, admitted to be due, and promised to pay the same. The plaintiff, at the several times of the sale and delivery of the said tickets, was duly authorized by the laws of Rhode Island to make such sales, and to recover for the same. It is further agreed that the plaintiff knew, when he sold and enclosed said lottery tickets to the defendant, that the said defendant purchased them to sell in this State, and it is agreed that said tickets were sold in this State, by the defendant.</p> <p>The county court, upon these facts, rendered a judgment for the defendant, to which the plaintiff excepted.</p> <p>1. The contract was consummated in Rhode Island. The depositing of the tickets in the Providence post office was a delivery to the defendant, and they were then at his risk.</p> <p>2. The contract is valid, by the laws of Rhode Island, where it was made and where it was to be executed, and, upon principles of national comity, it forms a legitimate ground of action in the courts of this state. Holman v. Johnson,</p> <p>1 Cowper, 344. Waymell v. Reed et al. 3 Term R. 599. Smith v. Broivn et al. 2 Salk. 666. Smith v. Gould, 2 do. 666. Madrazo v. Wittes, 3 Barn. ■& Aid. 353. Medway v. Medha-m, 16 Mass. 157. Winthrop v. Carleton, 12 id. 4. Phelps v. Kent, 4 Day’s R. 96. ; Conframp v. Bund, 4 Dallas, 419. TJdall v. Metclalf, 5 N. H. R. 396.</p> <p>3. Our statute does not, in terms, declare a contract for the sale of foreign lottery tickets void, but merely imposes a penalty on any person who shall sell tickets in this state. Does a statute merely imposing a penalty for the doing an act, on the performance whereof the contract is founded, render the contract invalid ? It may be well doubted whether a statute of this character can have such an operation. Johnson v. Hudson, 11 East, 180. 2 Camp. 144.</p> <p>If it has this effect, then are all contracts for the sale of Hour in barrels, without inspection, — of goods by a pedlar, or of spirits by a retailor, without being licensed, invalid, and no aetion can be sustained on such contracts, as penalties are imposed in all such cases.</p> <p>L The sale of lottery tickets, except such as are issued by or under the authority of this state, is prohibited under a heavy penalty, and made an indictable offence. Vide Statute 273, No. 4.</p> <p>II. Every «detract made for, or about any matter or thing, which is prohibited or made unlawful by any statute, is a void contract, though the statute itself does not declare it to be so, but only inflicts a penalty upon the offender. A penalty implies a prohibition, though there be no prohibitory words in the statute. Per Holt, C. J., Carth. 251. Comyn on Con. 38. .LBinn. 110. 4 N. H. R. 285.</p> <p>III. The sflPof the tickets was not completed until their delivery here. Consequently, this must be considered the place of sale. Mucklow v. Mangles, 1 Taunt 318. Greenwood v. Curtis, 6 Mass. R. 358.</p> <p>IV. If the contract is to be considered as having been made in Rhode Island, it will not be enforced in this state;—</p> <p>1. If our citizens would suffer any inconvenience by giving it effect;—</p> <p>2. If the consideration of the contract be immoral, and giving it effect would have .a bad tendency ;—</p> <p>3. If the contract, sought to be enforced, is prohibited by a positive statute of the state. Story’s conflict of laws, 203, 204, 271, 208, 209, 2J3, 214, 2 Kent’s Com. 454, 458. and n. b. 461. Blanchard v. Russell, 13 Mass. 6. Prentiss et al. v. Savage, 13 Mass. 20. Pearsall v. Dwight et al. 2 Mass. 84, 89. Varnum v. Camp, 1 Green’s New Jersey, R. 326. Greenwood v. Curtis, 6 Mass. R. 358, 378. Forbs v. Cochrane, 2 Barn. & Cress. 448. Com. L. R. 138, 149. Springfield, Bank v. Merrick et al. 14 Mass. 322. 326. Wheeler v. Russell, 17 Mass. 258. Dwight et al. v. Brewster et al. 1 Pick. 50, 54 and 55. Clugas v. Penaluna. 4 T. R. 466. Waymel v. Reed, 5 do. 599. Mitchell v. Cockburne, 2 H. Blk. 37. Ribbans v. Crickett, 1 Bos. & Pul. 264. Loio-v. Hodson, 11 East, 300. Holman v. Johnson. 1 Cowper, 343. Lowry v. Bourdieu, Doug. 468, 470. Morck v. Abel, 3 Bos. & Pul. 35. Shiffner v. Gordon et al. 12 East, 296,304. Russell v. DeGrand, 15 Mass. 35, 39. Briggs et al. v. Laiorence, 3 T. 454. Udall v. Metcalf, 5 N. H. R. 396. Roby v. West, 4 N. H. R. 285. Hunt v. Knickerbocker, 5 Johns. 327. 2 Gall. 560. Williams v. Woodman, 8 Pick.78. 9 Com. L. R. 149.</p>

<p>This was a qui tam action, for the rescue, by the defendant in Barre, of certain sheep, contrary to the statute against pound breach, &c., which gives the penalty, one half to the prosecutor, and the other half to the town, in which the offence is committed. It went up, by appeal from a justice of the peace, to the county court, where it was tried upon the following case stated;—</p> <p>“ In this cause it is agreed that judgment shall be entered “ for plaintiff,for the penalty of $ 10, provided the court should “ be of opinion that the magistrate had jurisdiction of said “ action. The plaintiff and defendant, and the magistrate, “ who tried said action, were, at the time of the rescue of !i the sheep, mentioned in the writ, and ever since have been “ and still are inhabitants of Barre, in said Washington coun- “ ty, in which town the offence was committed. The magis- “ trate, who tried said action, was, at the commencement “and trial of said action, a rated inhabitant of said Barre.</p> <p>“ This objection to the jurisdiction of said magistrate was “ taken before him on trial of said cause.</p> <p>The county court rendered judgment for the defendant, to which the plaintiff excepted.</p> <p>The decision in the case of State v. Batchelder, 6 Vt. R. 479, settles the present case in favor of the jurisdiction of the justice. In that case the fine accrued to the town, by reason of the defendant’s violating a statute law of this state, and, in the present case, the fine accrued by the defendant’s violating another statute law of this state.</p> <p>Although there are different modes of collecting the penalty in the two cases, still the offences committed in the two cases are similar, and, in their nature, the same. In the present case the offence complained of by the plaintiff, is, in its nature, criminal. The statute, page 124, says, “'that every justice of the peace is empowered to hear, try and determine all pleas and actions of a criminal nature.” The plaintiff’ insists that this action is of a criminal nature, and, that one half the penalty goes to the town, can be no objection to the jurisdiction of the magistrate. His interest is too remote, to operate as an objection to his trying the case. See 12 Mod. 669. 5 Mass. R. 90.</p> <p>There is a broad and clear distinction between the case of the Slate v. Batchelder-, on which the plaintiff mainly relies, and the present case. That was a criminal prosecution, instituted by a public officer, while the present case is a civil suit, in which the justice is interested. It was on this distinction, that Batchelder’s case is understood to have turned. The court regarded that part of the 23d section of the act of 1797, which provides that “ no justice of the peace shall take cognizance of any cause, when he shall be directly or indirectly interested in the cause or matter to be determined,” as applicable only to civil actions, and not extending to criminal prosecutions. The present case is clearly within the letter and spirit of the statute, and the very question now under discussion is said to have been so decided, some few years since, in Grand Isle county. The jurisdiction of the justice is not to be sustained, either on principle or authority. Haiokes et al. v. The Inhabitants of Kennebeck, 7 Mass. R. 401. Pearce v. Atwood, 13 Mass. R. 324. Ilill v. Wells 6 Pick. 104, 9.</p>

<p>On the trial of this case in the county court, the jury found a verdict for the plaintiff, upon the facts, and under the instructions, stated in the opinion of the court delivered by</p>

<p>A witness, who has had his travel fee and one day’s attendance tendered, and who attended one day and then left the court, is not liable for the penalty under the statute, if the subpoena was served by an indifferent person, who was not named in such subpoena.</p> <p>When a witness attends,' if he is wanted for a further day, his fees must be tendered each day, for the succeeding day, but it is not necessary that he be each time served with a subpoena.</p>

Ejectment, for lot No. 8, in the 10th range, in Hardwick, The facts in the case appear from the opinion of the court. The county court rendered judgment for the plaiiu tiff, and the defendant excepted, 1, The assignment upon the lease does not convey any title. The only operative word, is “ assign.” There is no habendum; nor words, designating what estate was intern ded to be conveyed. 2 Black.

Assumpsit, for the use and occupation of lot No. 8, in the 10th range in Hardwick. The defendant had assigned the premises to the plaintiff and had agreed to surrender the possession, by the first day of April, 1837, but had neglected to do so, and' the plaintiffs claim was for the.use and occupation, after that time. The plaintiff had sued, in ejectment, for the premises and recovered a judgment, in that action, against the defendant.

Trespass for taking two cows. The defendants were selectmen of the town of Danville for the year 1834, and, in their official capacity, assessed the town taxes for that year. In the assessment was included a sum which the town had voted for the purpose of building a jail in said town. The plaintifF, who was a rateable inhabitant of Danville, was assessed his propórtion of said tax.

This was an action of assumpsit, commenced before a justice of the peace and appealed to the county court, and was referred, by agreement of parties, at the December term, 1836. No report was made at the June term, 1837, but the case was continued, and it did not appear, by any enti-y on the docket of the county court, that the rule of reference was enlarged at that term. At the December term, 1837, the referees reported as follows ; — to wit, “That, in 1830, Geo.

<p>Where objections in the county court, to the report of referees, are for matters not appearing on the report, the facts, on which the objections are founded, are supported by affidavit, and the judgment of the county court thereon cannot be re-examined in the supreme court.</p> <p>Alitor, when the objections are for matters appearing on the face of the report.</p> <p>Referees must award on all matters, within the submission, brought to their notice.</p> <p>Where an action is brought for maintaining, keeping up and continuing a dam, and special damages, in several particulars, are alleged, — if the referees find for the defendant, as to the cause of action, it is unnecessary, in their report, to notice the special damages.</p> <p>It is not an objection, sufficient to set aside the report of referees, that they awarded and taxed the cost of the reference, but such taxation may be revised by the clerk or by the court.</p> <p>This court will not sustain a petition for a new trial, founded on the disclosure of facts, which should have been presented to the county court, as a reason for rejecting the report of referees.</p>

The bill of exceptions described this as an action of assumpsit. The declaration was as follows, viz :— -“ To answer to Benjamin Durrill, of Walden “ aforesaid, in a plea that to the plaintiff defendants render “ $75,00, for sixteen hundred of salts of lye, before this “ time sold and delivered by plaintiff to defendants, and for “which defendants refuse to pay plaintiff, though often “ thereunto requested.

This was an action of assumpsit, upon a promissory note; originally commenced before a justice of the peace. The justice rendered a judgment for plaintifl, upon default.

This was an action of book account, commenced before a justice of the peace, and appealed to the county court, where judgment to account… Held: or in other words, if the suit in Washington could be defeated; to effect which, Shepherd, the clerk of Strong & Delano, called on Charles Waterman, informing him that the presumptions were strong, that if a lawyer should be sent to defend the suits in Washington, they might be defeated, and inquiring whether the firm of Waterman &…

This was an action of assumpsit, for labor done and per» formed, and for money paid, laid out and expended. The defendants pleaded the general issue, which was joined to the court by agreement of the parties. It appeared that while the defendants were co-partners in trade at Hardwick, Sanborn, one of the defendants, directed certain hay to be attached on debts belonging to the firm, as the property of one Curtis, who had absconded.

<p>Where several individuals are associated in a private trust or agency, tho concurrence of all is necessary to bind their principals.</p> <p>In süeh case, the declarations of one of’ the trustees are not evidence of the acts of all. Such declarations are but hawr=su.y^ and inadmissible, the trustee making them being a competent witness, as between third-persons:</p>

<p>A writ of audita querela does not lie to set aside an execution issued in pursuance of a decree of the court of chancery.</p>

<p>Ne action against a town, for relief of the poor, can be sustained, except _ where given by express statute, or where there is an express contract. A jailer, furnishing relief to an imprisoned pauper, can sustain no action against the town, though the overseers were requested to furnish relief and neglected to do 50,</p>

This was a petition for a divorce. stated to the court, that they were not employed by the petitionee, but that they appeared as the attorneys of his creditors, -who had levied their executions upon real estate, held by him, in right of his wife, the petitioner, and that the levying creditors believed this petition to be collusive, between the petitioner and petitioliee, to defeat the rights of the creditors under such levies, and they moved for leave to appear and oppose…

<p>Where a gun was sold to be paid for in sawing; — Held, that there could be no recovery, until logs were carried to be sawed, so that the party could fulfil his contract.</p> <p>Where the defendant had sawed logs for plaintiff on such a contract, in part, and sued the plaintiff and recovered therefor : — Held,, that this did not entitle the plaintiff to maintain an action for the gun, without any demand for the sawing, but that he should have resisted the recovery when sued by defendant.</p> <p>When a person is sued on book and appears in the action, but does not bring forward his account, if he afterwards sue to recover his account, he is not entitled to cost.</p> <p>Where both plaintiff and defendant except to the decision of the county court, and defendant prevails on both exceptions, he is entitled to the cost before this court, notwithstanding a balance may be found due to plaintiff.</p>

This was a trustee process, commenced before a justice of the peace, by whom judgment was rendered that said Hopkinson was trustee.

This was a bill in chancery, and served by an indifferent person. The subpcena was directed to any indifferent person to serve and return.

This was an action of assumpsit. The plaintiff declared against the defendant and one Elijah G. Bingham, who was Without this state and upom whom no service was made, Upon a promissory note for $250, dated March, 9, 1827, -Signed by the said Bingham and defendant and payable to William Baxter, (the intestate) or bearer, on demand with interest. Plea — non assumpsit and issue to the country.

Ejectment for east half of lot No. 88, in Troy. The plaintiff and defendant both claimed title from Joseph Craigue. The deed, under which defendant claimed, was of the same land and prior in date to the deed to plaintiff, but was recorded, by a mistake of the town clerk, as a deed of the west half of lot No. 88.

This was an action of trespass for an assault and battery and false imprisonment. The defendant pleaded the general issue. Held: a hundred times, in the courts of this state. The first point in this case, presented by the bill of exccptions, was purely a question of fact, and fairly submitted to the jury, who found in favor of the defendants.

<p>There is a sufficient statement of this case in the opinion of the Court.</p> <p>J. Mattocks, Maeck Smalley, and E. G. Johnson, for plaintiff, cited 1 Bl. Com. 87. Almy v. Harris, 5 Johns. Rep. 175. Pangburn v. Patridge, 7. do. 140. 10 Johns. Rep. 590. Colden v. Eldred, 15 do. 220. Town of Charlotte v. Webb Of Hew ell, 7 Yt. Rep. 38. Tuttle v. hove 7 Johns. Rep. 470. Thurston v. Sheriff of Suffolk, 16 East, 254. Freeman v. Otis, 9 Mass. Rep. 272. 3 Stark. Ev. 1349. 1 Wendell’s Rep. 534. 4 do. 675. 19 Johns. Rep. 73. 7 do. 470.</p> <p>The action of assumpsit will not lie against a sheriff or other officer, for a misfeasance or nonfeasance in the execution of his official duties.</p> <p>The action in such case does not arise ex contractu, or quasi ex contractu, but ex delicto. It arises from a neglect of an official duty in the officer, a duty which the law has enjoined upon him for the due administration of justice, the breach of which is a wrong, for which an action on the case is the only proper remedy. (Walbridge v. Grisioold, ID. Chipman’s Rep. 162.)</p> <p>Assumpsit will not lie against the sheriff on the promise of his deputy to serve and return an execution according to law, contained in his receipt for such execution. (Tomlinson v. ' Wheeler, 1 Aikens’ Rep. 194.</p> <p>The remedy against a public officer for neglect or misbehavior may be by an action of the case, alleging his misdemeanor, or by action of debt according to the nature of the misfeasance, but never by assumpsit, as on an implied promise to do his duty. Mo Millan v. Eastman, 4 Mass. R. 378.</p>

Assumpsit. The plaintiff declared that on the 27th day of January, 1833, in consideration that the plaintiff, at the special instance and request of the defendant, would buy of him, the defendant, a certain time piece for the sum of eighteen dollars, he, the defendant, undertook, and then and there faithfully promised to the plaintiff that the said time piece should keep good and accurate time for. the term of ninety days from said sale, and if it did not so keep time, the…

This was an action of book account, commenced before the county court. The plaintiff had judgment to account, and an auditor was appointed who reported a balance in favor of the plaintiffs, and also reported the following facts, to wit; — .

The leading facts in this case are, that in the year 1807, the defendant contracted for the purchase of the land in question with John Murray, who claimed to act as the executor of one Watson of the city of New York. There were two other executors, living at the time of this contract, and all the executors had a joint authority to convey. Defendant took a conveyance of the land and gave Murray a mortgage deed.

This case was submitted to the county court upon the following case stated. On the complaint of the overseers of Bristol, an order ■of removal was made upon Alvan H. Lilly, on the 11th day of January, 1837, to the town of Rutland. Said Lilly had been in Bristol most of the time, for three or four months previously, at work upon a job of ditching, which he had taken, till he broke his leg, a few days previous to the order of removal.

This was an action of ejectment brought upon a mortgage executed by Farmery Hemenway to Rebecca Hapgood, on the 22d day of March, 1830, and assigned by her and her hus* band to plaintiff by deed dated February 23d, 1836, with the notes described in the mortgage.

Assumpsit upon a promissory note of the following tenor. “Claremont, June 12,1831. “ For value received, we, each as principal, jointly and “ severally promise to pay the President, Directors and Com- “ pany of the Claremont Bank, two thousand dollars, in nine- “ ty days, with customary grace. (Signed,) Nathan Wood, Joña. Wheelock.

This was an information, filed by the state’s attorney, at the present term of this court, charging that the respondent, contriving and intending fraudulently and by swindling and deceitful practices to swindle and defraud one Charles S. N. Anthony, an honest and worthy citizen of this State, of his goods and chattels, on the fifth day of January, in the year of our Lord one thousand eight hundred and thirty eight, with force and arms, at Sherburne, in the county of Rutland,…

<p>This was an audita querela brought to vacate a judgment or process in favor of the defendants against the complainants, growing out of the petition by the defendants for a road through the towns of Shrewsbury and Clarendon.</p> <p>The complainants became nonsuit in the county court, and that court taxed and allowed separate costs for the travel and term fees of each of the defendants, to which the complainants excepted.</p>

<p>This was an action of trespass for breaking and entering the plaintiff’s close, and cutting and carrying away the plaintiff’s oats, on the I5th of A.ugust, 1835, and came to this court upon the following bill of exceptions. The trespass, was committed upon a piece of land containing about ten acres, which the plaintiff claims as a part of lot No. 17, of the first division laid to the original right of Nathan Willard, jr. On the trial of the case in the County Court, the plaintiff read in evidence the original charter of the town of Rut-land, dated 7th September, 1761, by which it appeared that Nathan Willard, jr. was an original proprietor of said town, and then showed a regular chain of conveyances from said Willard to Roswell Hopkins —then a power of attorney from Roswell Hopkins to Cephas Smith, jr. dated 2d February, 1805 ; — next a deed from Roswell Hopkins, by Cephas Smith, his attorney, to Samuel Matlocks, dated 12th November, 1814, of lot No. 17, of the-first division of the right of Nathan Willard, jr.;: — then a deed from Samuel Mattocks to Noadiah Moore, conveying the same lot, dated 30th ‘ October, 1822 ; — next a deed fromNoadiah Moore to 'William Elliott, of the same lot, dated 11th April 1831; — then a deed from William Elliott to Reuben R. Thrall, dated 24th December, 1831; and next a deed from Reuben R. Thrall-to the plaintiff of the same lot, dated 24th November, 1834. The plain-, tiff then introduced the plan of the town of Rutland to show the particular location and boundaries of lot No. 17, of the , . first division laid to the right of Nathan Willard, jr., which plan was proved to have been made and acquiesced in for more than thirty years, and included the land in question m lot No. 1 /.</p> <p>The plaintiff then proved that he went into possession of the lot about the first of April, 1835, and ploughed the land, sowed the oats, and built the fences. The defendants admitted the taking of the oats. And the plaintiff admitted that the defendants acted under the direction and authority of James Porter. The defendants then introduced a deed from Ezekiel Beebe to James Porter, dated 4th March, 1835, conveying all his interest in the land upon which the oats grew. The defendants then proved that in 1808, Cephas Smith, jr. procured General Hendee to survey the Kelley lot, so called, being lot No. 17, of the first division of Nathan Willard, jr.; that said Hendee surveyed caid lot and drew a plan, leaving out the laud in dispute ; that said Smith was in feeble health and it did not appear that said Smith was present at the time the survey was made; but the corners were shown by one Nathan Pratt, since deceased, who usually acted as agent for said Smith; — that in 1319, the said Hendee re-surveyed a part of said lot, to wit, the north and east lines, and made another plan of said lot, from the minutes of the first survey, for Samuel Mattocks, who then resided at Middlebury, but was present at the time.</p> <p>The defendants then introduced evidence tending to prove that Ezekiel Beebe, in 1825, with the knowledge and consent of William Elliott and John L. Beebe, his son and son in law, took possession of the ten acres in controversy, not as part of the Kelly lot, but as undivided land or a vacant lot; — .that he enclosed it with a brush fence, marked, and continued in possession of it, from the year 1825, until March 4, 1835, when he sold and deeded it to James Porter, and while he was in possession, viz. in the summer of 1832, the said Thrall sent word by Silas D. Willis to said Bebee to call on said Thrall, and make arrangements in relation to the rent of said premises, and, on that occasion, the said Bebee declared to the said Willis that he should pay no rent, and claimed that he owned the premises.</p> <p>The plaintiff then read a deed from Nathan Pratt to Isaac Gage, dated 14th February, 1810, conveying the the land in dispute, and from Isaac Gage to Cephas'Smith, jr. dated 9th March 1810, conveying the same land. The said Smith was at that time the owner of the Kelly lot, the apparent title of which was in Roswell Hopkins, and claimed the land now in dispute, as a part of the Kelly lot. It appeared in evidence that the said Nathan Pratt had, about 40 years since, claimed the 10 acre piece now in dispute as his, and cut pine trees thereon, and that he had the care of No. 17, or the Kelly lot, but claimed that that piece was no part of the Kelley lot; — that, at the time Gage deeded to Smith, as before mentioned, Smith claimed that the land in dispute was part of the Kelley lot, and it was agreed between the said Smith and the said Pratt, that Nathan Pratt, jr. should execute his note to the said Smith for fifteen dollars, which should be kept in the hands of one Fenton, and if it should be found that the land belonged to the Kelly lot, the said note should be paid to Smith ; but, otherwise, it should be given up; — and that the note lay about two years, when it was given up to the said Pratt, without any payment, by order of said Smith, It also appeared in evidence that John L. Beebe and William Elliott took possession of the Kelly lot in the fall of 1825,built a house on it and removed into it Í that Ezekiel Bebce removed into the house with them the next March ; that, at first, they did not claim the disputed lot, a part of which was at that time occupied and claimed by George W. Dewey, one of the defendants, and another part was then occupied and claimed by William Wright, both of whom abandoned their possession about that time. It also appeared in evidence that Moses Lester, Esq. surveyed the Kelley lot for Elliott and Beebe, after they purchased, and in that survey he included the disputed lot, at which time the said Elliott and Beebe, and Ezekiel Bobee, all said that the lot was a part of the Kelley lot, and divided fences and built fences on the south .line of said disputed piece ; and that afterwards the said Elliott and Beebe said, while they owned the Kelley lot, that the disputed piece was not a part of the Keljey lot, but ought to belong to it, and they would give sixty dollars for it. It also appeared that Ezekiel Beebe paid the said Lester one dollar for running the said south line, and that Elliott and John L. Beebe objected to paying for running that line, on the ground that their father, the said Ezekiel, ought to pay it, as they employed the said Lester to run that ^ne'm behalf of the said Ezekiel. The plaintiff then offered to prove that William Elliott and John L. Beebe bought the Kelly lot of Noadiah Moore, Which Was then a wild lot, and took a bond fora deed and went into possession, in February and Ezekiel Beebe moved into the house With them, Which house was on the Kelly lot but not on the disputed land; that John L. Beebe, sold to Elliott in November, 1830 J that John L. Beebe and William Elliott took possession of the disputed land in the spring of 1827, claiming it as a part of the Kelley lot, that Ezekiel Beebe, at that time, claimed that it was a part of the Kelley lot, and said he was in possession under Elliot and Beebe. The plaintiff then offered a lease from Reuben R. Thrall to William Elliot from 24th December, 1831, to 24th December, 1832. The plaintiff contended that if Ezekiel Beebe went into possession of the premises under Elliot and Beebe, and continued to occupy Under the said Thrall, he was precluded from setting up a title as against them, and could not claim adversely to Thrall’s title, so as to render the deed from him to the plaintiff void under the statute of 1807. The plaintiff further contended, that, inasmuch as Beebe’s claim of title, as made to Willis, w.as not carried home to the knowledge of Thrall, he could not be considered as holding adversely to Thrall, so as to avoid the deed from Thrall to the plaintiff. The County Court decided that the possession of Beebe, from the time he declared to Willis, the agent of Thrall, that he would pay no rent, and claimed title to the premises, which was in November, 1832, was from that period adverse to Thrall, and that nothing passed to the plaintiff by virtue of the deed from Thrall to him, dated November, 1834. The County Court further decided, that, as the land in dispute was not surveyed by Smith, who caused the survey to be made of the Kelley lot in 1808 — as a part of the Kelley lot — as he gave up the note to Pratt before mentioned, and as Mattocks, whore-surveyed the lot in 1819, did not include the piece in dispute, that piece was not to be considered a part of the Kelley lot, and, inasmuch as Beebe was ■in actual possession of the lot in question, in the year 1825, with the knowledge and consent of John L. Beebe and William Elliot, intending to hold the same by possession, but not as part of the Kelley lot, and continued in possession from the year 1825, claiming it at times as his own, and claiming adversely to the title of the plaintiff from the year Í832, notwithstanding he may have said at other times that it was part 0 J . . of the Kelley lot, the testimony offered was irrelevant and madmissible and rejected the testimony. They also decided that the title of Beebe, from the time he gave the notice to Willis before mentioned, was adverse, and rendered the deed from Thrall to the plaintiff void under the statute of 1807, and that notice to the agent, sent by Thrall to Beebe, was notice to him. Whereupon the plaintiff became nonsuited, and excepted to the several decisions of the court before mentioned, with liberty to move the Supreme Court to set the nonsuit aside.</p> <p>I. The possession of a tenant at will is no disseizin of the landlord. Reed v. Shepley, 6 Vt. R. 602. Boioker v. Walker, 1 do. 18. Buller’s N. P.24. 1 Caines’Cases, 394. 3 Johns. R. 499. 5 Cowen’s R. 129. 7 do. 637. 4 Johns. R. 211 and 230. 4 Cowen’s R. 587. Adams on Eject. 59 and note. 3 Johns. R. 223. 1 Caines’ R. 444. 7 Johns. R. 186. 7 do. 358. Selleck v. Starr, 6 Vt. R. 194.</p> <p>II. The county court erred in deciding that the land in dispute was not a part of the Kelly lot. That fact should have been left to the jury. ,</p> <p>III. Beebe’s notice to Willis of the adverse claim of the former was no notice to Thrall.</p> <p>I. Thrall’s deed to plaintiff was void under the statute of 1807.</p> <p>II. The land in dispute is no part of lot No. 17.</p> <p>III. Porter, under whom the defendants claim, having the prior possession, the entry of the plaintiff was tortious. 1 Chitty’sPl. 190,note (k.) 2Saunders’R.lll. 1 East’sR. 246.</p>