Volume 11 — Vermont Reports

The bill, in this case, stated that Betsey Wells, the oratrix, - was the only child and sole surviving immediate heir at law of Robert Miller, late of Duxbury in Washington county, deceased; and that John Wells, the orator, was her husband ; that said Miller, in his lifetime, to wit, in the year 1812, executed to Levi Morse, one of the defendants, a mortgage deed of a lot of land in said Duxbury, to secure the payment of certain notes made by himFÉto said Morse ; that he…

This case came up from the county court, on the following bill of exceptions: “ This was an action of assumpsit; plea, general issue, “and trial by the court.

<p>This was an action of trespass on the case, in three counts, and was before the court at the January term, 1838, at which time a new trial was granted. .10 Yt. R. 71.</p> <p>In the first count, the plaintiff alleged that he was, on the 1st day of May, 1836, possessed of two horses, which escaped from his enclosure and went into the enclosure of the defendant’s father, and that the defendant, without notifying the plaintiff, wilfully and maliciously turned said horses into the highway; that said horses were never afterwards found and were wholly lost to the plaintiff.</p> <p>The second count was substantially like the first, and the third was in trover. Plea — not guilty, and issue to the country.</p> <p>Upon the trial in the county court, the plaintiff, to maintain the issue on his part, introduced evidence tending to prove,- that on the 14th May, 1836, he turned the horses in question into a pasture of his, which was adjoining the meadow of Richard Douglass, sen. the father of the defendant, and with whom the defendant lived — and it was admitted the defendant was a minor. The plain tiff’sevidence also tended to. prove, that the fence between the pasture and meadow aforesaid was a line fence and undivided ; the plaintiff and Douglass, sen. having been in the practice, for years, of repairing the fence together, and that, up to the time the horses were so turned in, there had been no rppai of the fence that season ; that the fence was down in several places ; that, on Sunday morning, being the next morning after the horses were so turned into the pasture, the defendant found them in the meadow of his father adjoining the pasture aforesaid, and turned them into the road, and gave them a start off north, the plaintiff living south; and that the defendant said in the course of the day afterwards that the plaintiff would have a good hunt to find the horses, and he hoped and believed that he would not find them. The plaintiff also introduced evidence tending to prove that the horses in question were strange horses, and had then recently been purchased by the plaintiff, one of which came from the north; and that these facts were known to the defendant; and that they went off north and were wholly lost to the plaintiff, and that no notice was given to the plaintiff of turning the horses into the road, but that he accidentally found out the fact at three o’clock of the afternoon of the same day, when he immediately sent in pursuit of them ; that he expended a good deal of time and money in pursuit of them, without effect.</p> <p>Upon this evidence the plaintiff contended that he was entitled to a verdict, upon the first count in the declaration, but the court decided that the action could not be sustained, and directed a verdict for the defendant. To which decision and direction the plaintiff excepted.</p> <p>The first count in the declaration charges upon the defendant the malicious design of causing the loss of the property in question to the plaintiff, and the questions, now involved in the case, are not within the principle heretofore settled by the court in this case.</p> <p>1. If there was any evidence, introduced by the plaintiff at the trial, which tended to support the first count in his declaration, it was clearly his right to have such evidence weighed by the jury.</p> <p>2. ' There was evidence introduced by the plaintiff, which not only tended to support his first count, but which might well have warranted a verdict in his favor to the full amount of the injury of which he complains, and the county court, therefore, erred in directing a verdict for the defendant.</p> <p>3. The former decision was founded upon the principle that the plaintiff was guilty of the first wrongful act, by negligently suffering his horses to trespass upon the lands of the defendant’s father. Whereas, the case now shows that Douglass, senior, and the plaintiff were in pari delicto, so that no advantage could be taken of the plaintiff by reason of the defective condition of the division fence, as the fault was alike on both sides. 2 Dane’s Dig. 676.</p> <p>relied upon the former decision in this case, and insisted that it was decisive of the questions now before the court.</p>

Assumpsit. The plaintiff declared, “ in a plea of the case, “ for that whereas, heretofore, to wit, on the 25th day of “February, 1833, certain articles of personal property, to “ wit, one horse, one sleigh and one double harness, belonging to one Anson Downer, had been taken on execu- “ tion against said Downer, and were then about to be sold “ on said execution, at vendue, and the defendant being plain- “ tiff in one of the said executions, and there having been “…

This was a petition for a partition of lands in Charlotte, of which the said Joseph Harrington and wife, in right of said wife, and the said Barton were tenants in common.

This was an action of book account, in which there had been a judgment to account and auditors appointed, who reported as follows: That in August 1832, plaintiffs were merchants in Albany; that the'defendant, at the same time and ever since, resided at St. Johns, Canada ; at the time aforesaid, one Hiram Pierce, then residing at Ogdensburgh, came to plaintiffs’ store in Albany, pretending to be the agent of defendant, who then and at sundry times thereafter, pretending to be…

This was an action of trespass, plea, general issue, and trial by jury. On the trial in the county court, it appeared that the plaintiff prayed out his writ against one Edward Pooler and Samuel Brown, as well as the now defendant; that the writ was served upon them all. A trial was had at the last March term, and the plaintiff recovered against Brown and Pooler, and the jury found the defendant, Norris, not guilty.

This was an action of ejectment for land in Williston.— Plea, general issue, and trial by the court. On the trial in the county court, it was admitted by the defendant, that he claims the premises sued for, by virtue of a deed from Daniel Hurlbut, dated since 12th of March 1825, and that he was in possession.

This was an action of assumpsit, founded upon the following submission and award: “ Whereas, divers difficulties and disagreements have arisen “ between us, in relation to a quantity of hay, and… Held: that if the deed was effectual to convey all the right and title which the defendant had at the date of the award, it was a sufficient performance, and overruled the objection.

This was an action of assumpsit, in which the plaintiff declared in the general counts for money had and received, money lent and advanced, and money paid, &c. The writ was served on the 9th August 1836. Plea general issue, and trial by the court. On the trial, the plaintiff offered in evidence a note by the defendant to the plaintiff, which was proved.

This was an action of assumpsit on an insimul computasset for $557,05. Held: “that by no possibility a lesser sum, “ though accepted by the creditor, can by any intendment be “ pleaded as a satisfaction of a greater.” There must, as said by Lord Ellenborough in Fitch v. Sutton, and Steinman v. Magnus, above cited, be some consideration for the relinquishment of the party’s claims, something collateral to show…

Assumpsit upon defendants’ joint and several promissory note, dated January 20th 1837, for $1772,58, payable on the first day of September, then next, with interest, to Smith Ballou, or order, and by him indorsed to the plaintiff. The defendants pleaded, 1. the general issue,and 2. payment. The plaintiff joined in the general issue, and traversed the plea of payment.

This was an action on a note dated 20th May 1836, payable to plaintiffs, and signed “Allen & Blodget.” Plea general issue, and trial by jury. The plaintiffs, t o sustain the issue on their part, offered evidence tending to prove that the defendants, previously to the execution of the note in question, were partners, as merchants, at Bristol, Vt., and that the name of “Allen & Blodget” was in the hand-writing of the defendant, Blodget.

This was an action of book account. The charge in dispute was for an organ case. The auditor reported the following facts, viz. that the case was made by the plaintiff for one Lewis, and charged to him on book. Lewis afterwards sold it to the defendant, who agreed with Lewis to pay plaintiff $45, and gave plaintiff notice of such agreement; upon which the plaintiff altered the charge on his book, erasing Lewis’s name and substituting that of the defendant.

<p>This was an action of book account, in which there had been a judgment to account in the county court, and the case referred to an auditor, who reported a balance in favor of the plaintiff.</p> <p>The principal item in dispute was a charge in defendants7 account, of $ 17,75 for the “balance of Stiles’ account.”</p> <p>The auditor reported, that in support of this item the plaintiffs offered themselves as witnesses to prove that, some time in August, 1837, the plaintiff and Stiles, one of the defendants, had a settlement of their mutual accounts, and that upon such settlement there was found due from the plaintiff to said Stiles abalance of $17,75, and that the plaintiff afterwards agreed to pay said balance to the defendants, Stiles and Barney. The plaintiff insisted that the item in question was not a proper article of charge on book, and that the defendants were not competent witnesses to prove it, and the auditor, being of that opinion, excluded their testimony.</p> <p>The defendants then offered, as a witness, one John Chambers, to prove the same facts above stated. To this witness the plaintiff objected, on the ground of incompetency for interest, in consequence of having given the plaintiff the following written guaranty, to wit:</p> <p>“ This is to certify that I, John Chambers, do agree that “ Stiles & Barney will settle with Michael Phalan for spinning “ 56 yards, at nine cents per yard.</p> <p>JOHN CHAMBERS.”</p> <p>And said witness was rejected by the auditor, and the said item of $ 17,75 was disallowed.</p> <p>The county court accepted the report of the auditor, and rendered judgment thereon for the plaintiff, to which the defendants excepted.</p>

<p>The record of a recognizance is, at least, conclusive between the parties; and whether, in a suit between a recognizor and a stranger, certain parol evidence, if admissible, is sufficient to rebut the presumption that the recognizance was entered up by the consent of the recognizor, isa question of fact, and cannot be made the ground of error.</p>

<p>Scire facias against bail on mesne process. The original writ, on which the bail was taken, was issued from and returnable to the county court. The writ, in the present case, was issued by a justice of the peace. The defendant pleaded in abatement, that the justice had no authority to sign the writ. Judgment of the county court that the writ abate, to which plaintiffs excepted.</p> <p>The question is, upon the construction to be given to our judiciary act, and particularly the 24th section.</p> <p>The words writ and process, although originally having a different meaning, are applied to the same proceeding, both in common law books and in our statute, and, in the 24th section of the judiciary act, are evidently used synonymously, and are exclusively applied to the means of compelling the defendant to appear in court. (Black. Com. vol. 3 p. 272 and 278.) Comp. Statutes, vol. 1 p. 63-4, Jac. Law Diet, title process.</p> <p>Hence the terms “every such writ or other process returnable,” &c., mean, it is contended, the same as if the expressions were “every such writ. (of summons or attachment) or other writ.</p> <p>But it will be contended that the writ in question is a judidal writ, and that these statutes refer only to original writs . and processes.</p> <p>conten^ ^at the writ in question is not, technically or practically, any more a judicial writ than any writ of attachment. Black. Com. vol. 3 p. 282.</p> <p>But admitting that this distinction is indicated in our statute, a comparison between the 2d and 4th clauses of the 24th section will show that both kinds of writs are included in the 2d clause. The only limitation as to justices is — as it is, by the same terms, to the clerks of the courts — that the power does not extend to writs properly judicial — such as issue on the sound discretion of the judges — but only such writs as issue ministerially.</p> <p>But writs of scire facias generally, being virtually made writs of summons, and writs of scire facias against bail being expressly made writs of attachment iq this same judiciary act, (sec. 27 and 31,) the writ in question comes within the words as well as the meaning and reason of the 1st and 2d clauses of the 24th section, to wit, “every such writ” (of summons or attachment.)</p> <p>Moreover, in No. 38 of the same act, it is enacted that all writs of scire facias may issue as attachments, and run against the property and body of the bail or debtor, like other writs of attachment.</p> <p>The point which we contend for is supported by all the arguments from convenience, applicable to other writs.</p> <p>Scire facias is a judicial writ. 2 Tidd’s pr. 1007. 6 Bac.</p> <p>Ab. 122. Itis not a new action, but is a continuation of the old one. Wright v. Nutt, 1 T. R. 388. Philip v. Brown, 6 do. 282.</p> <p>Hence it must follow, that it must issue from the court having the custody of the record on which it is founded. Commonwealth v. Downey, 9 Mass. R. 520. Hoit v. Bradley, et al. D. Chip. R. 262. Carlton v. Young, 1 Aik. R. 332.</p> <p>Scire facias against bail belongs to this class, but it is contended that a justice of the peace can sign this judicial writ, and this we deny. The question, then, is, who has authority to sign judicial writs ? The answer would seem to be obvious, that they only, who have the custody of the record or judgments, on which they issue, can sign. From the fact that they are judicial writs, the inference seems to be plain, that they must necessarily be signed by the judges, or their clerk, having the custody of the record.</p> <p>The distinction between original and judicial writs has been of long standing. The legislature have throughout kept it in view. In sec. 13, they authorize the county and supreme courts to issue writs of scire facias, habeas corpus, and all other writs necessary for the exercise of their jurisdiction, agreeably to the principles and usages of law. It may be noticed, that nothing is here said of the manner of signing, and neither was it necessary. The legislature well understood that they were judicial writs, to be sent out as the act of the court, and then to be signed by the court or its clerk.</p> <p>It may also be remarked, that the authority to issue includes the power to sign, in the same manner as the act authorizing justices to grant writs (stat.126) includes a like power of signing. There was, then, no necessity nor propriety in giving directions as to the manner of signing judicial writs. The legislature authorized the courts to issue them, and left the manner to be regulated according to the principles and usages of law.</p> <p>There was an evident necessity that directions should be given as to the manner of issuing original writs, and here the legislature took the matter in hand. Tbs first object was to consider the convenience of suitors, and as the signing is a mere ministerial act, they have given authority toa more numerous class. In sec. 24 it is enacted, that the ordinary mode of process, in civil causes, shall be by summons or by attachment; those writs originally returnable to the supreme court to be signed by a judge or clerk, but those returnable to the county court by a judge, clerk, or justice of the peace. The question then returns, what is to be the fair construction of the word ordinary. Does it mean original, or does it mean original or judicial ? In order to give any colorable authority to a justice of the peace to sign a judicial writ, the section must read in this manner. “ The ordinary process, whether original or judicial, shall be by summons or attachment.”— It is evident that the legislature did not entertain this view, for in a subsequent part of the same section, where they speak of the authority of writs, the phraseology is changed, and all writs, whether original or judicial, shall run into any county and be there executed. The word, ordinary, in this section, is synonymous with original, and by changing the word for original, the meaning is beyond doubt. This view of the subject is strengthened by the fact that the legislature, in subsequent acts, have provided that writs of scire facias may issue as attachments; pp. 67,102, and 114. This would be unnecessary if the word j ordinary, included judicial, and at least furnishes a legislative construction in our favor.</p> <p>But this matter was long ago very carefully examined by this court. In 1802 the identical question was raised, and, after argument by the best lawyer's of the day, and great consideration, it was adjudged by the court, that a writ of scire facias, signed by a justice of the peace, was void. Sherwood v. Pearl, 1 Tyler’s R. 319.</p>

<p>To bar a prosecution for selling liquor without a license, it is not sufficient for the respondent to show he has been indicted and convicted since the date of the offence now proved against him. He must prove that conviction to have been for the same act of selling, now complained of.</p>

<p>When a creditor discharges the body of the debtor committed on execu.tion, under the third section of the act of 1803, he is entitled, as matter of right and without notice to the debtor, to an alias execution against his property.</p> <p>It is also the duty of the officer collecting such execution, under che statute of 1822, to add thereto the interest after 60 days from the rendition of the judgment, and levy and collect the same.</p>

The bill alleged that the orators, being partners in business, under the firm of Daniel P. Lapham and Co. on the 2d day of December, 1828, executed to Levi Rood their, promissory note of that date, for $54,84, payable in ninety days from its date, and that the said Rood died before said note became due, having, before his decease, become indebted to the orators, for the medical advice and attendance of said Nims, one of the orators, during his last sickness, in the sum of…

The substance of this bill was that the defendant agreed with Friend Beeman, in consideration of the deeds of certain lands, to maintain said Beeman and his wife during life; and that having received the deeds, he has fraudulently denied the contract, and that Beeman has become chargeable to the town of Milton. This was denied in the defendant’s answer, and testimony was taken, and the cause argued and submitted thereon.

This was a bill brought by the orator against the defendant as administrator of the estate of Heman Devereaux, late of Richmond, deceased, praying this court perpetually to enjoin the defendant from selling a certain messuage or tenement in said Richmond, consisting of a house and about 30 acres of land, which the bill alleged had been conveyed by the orator to the intestate, in his life time, under a contract on the part of the latter to support the orator and his wife…

<p> (In Chancery,) </p> <p> (Practice,) </p>

The facts in this case are fully stated in the opinion of the. court. The decree of the court of probate ought to be affirmed by this court, for the following reasons : 1. The executors reside without this state, which alone was a sufficient cause, under the statute, for their removal. 2. They hav.e neglected their duty in not returning an inventory and rendering the account.

This was an information, in five counts, for the forgery of a Written instrument in the following words, to wit: “ No. St. Albans, February 18, 1836.

181Q No, 1 To journey from Highgate, undertaking executorship, procuring bail, - &c - -- -- -- -- - (§>4,00 e “■ 3 Four days spent on said estate the winter following ------ 8,00 “ 4 Expenses same time ----- 2,00 1812 “ 5 Three days with S. Waterman posting books - -- -- -- -- 6,00 “ 6 Expenses same time ----- 2,00 1813 “ 7 Four days on said business - - - 8,00 “ . 8 Expenses same time ----- 3,00 “ 9 Three days settling accounts - - - 6,00 “ 10 Expenses same time - •- - - -…

This was an action of trespass on the freehold. Plea general issue, and trial by jury. The trespass was alleged to have been committed on lot No. 2, range 2, in the town of Franklin, supposed to contain one hundred and forty acres. On the trial in the county court, the plaintiff, in order to show title to said lot, gave in evidence the charter of said Franklin, dated March 19th, 1789, by which it appears that the plaintiff was an original proprietor.

This was a bill in chancery, stating, in substance, that the orator owned an extensive water privilege, on the river Lamoille ; that, heretofore, he deeded certain land and water privilege in these words : “ Said premises to be used for the privilege of a fulling mill and cloth dressing, with the right of taking water'from the grist-mill floom for that purpose.” And that he afterwards granted another privilege, in these words : “The privilege of taking water from the…

The orator, in his bill, stated in substance that, on or about the 25th day of June, 1834, being indebted to the defendants, A. S. & O. A. Burton, then partners in business, in the sum or nearly the sum of $500, he deeded his farm, in Georgia, to said defendants by an absolute conveyance, at their request and upon their agreement to execute their bond to deed the same farm to any person the orator might designate, upon the payment of the sum to be found due from the orator…

This was an action of trespass for taking a wagon. Plea, not guilty, with notice of special matter. Trial by - the court.

This was an action of assumpsit ,on a note for $34,06. Plea general issue, and trial by the court.

This was an action of assumpsit on a promissory note. Plea, non assumpsit. On trial in the county court the plaintiff gave in evidence a note signed by the defendants.

<p> (In Chancery.) </p> <p>Leave granted to discontinue a suit in chancery without costs, where the controversy is settled, and the parties would not have been entitled to cost. No order made as to costs in a suit atlaw, itbeing within the discretion of the court before which the suit was pending to give or refuse cost.</p>

<p>The expression of the opinion of the judge, on the weight of testimony, is not matter of error in law.</p> <p>The statement of the plaintiff to a third person, in the presence of one of the defendants, not addressed to him, nor calling for any reply and not replied to by him, is not sufficient evidence of the terms of a contract, as against the defendants.</p>

This was an action of trespass, for cutting down and carrying away plaintiffs grass, and removing his rails.

Audita querela to set aside a-judgment rendered by a justice of the peace against the complainant. On the trial before a jury in the county court, it appeared that the writ in the original suit was made returnable at the office of the justice at one o’clock in the afternoon, and was there seasonably returned by the officer who served it.

This was an action of assumpsit. The declaration contained two counts. The instrument declared upon was without date, and is recited in the second count.

This was an action of assumpsit for use and occupation.— Plea non assumpsit, and issue to the court. On the trial in the county court, the following facts were agreed upon by the parties.

Assumpsit. The defendants pleaded, separately, the general issue. The trial in the county court was joint, and the plaintiffs were nonsuited, with leave to move to set aside the nonsuit. The county court refused the motion, and the case came up upon exceptions. The plaintiffs not appearing here, this court adjudged that they take nothing by their motion. The defendants claimed separate costs.

<p>In cases of confession of judgment and, also, where mutual offsets are pleaded, a justice of the peace may render a judgment for damages exceeding fifty three dollars, independently of the statute of 1821, extending the jurisdiction from fifty three to one hundred dollars; and, in such cases, the execution should be made returnable in sixty days.</p> <p>A process, good upon its face, is a sufficient justification to the officer who executed it; and though the judgment is for a sum in damages, exceeding fifty three dollars, and execution issues for sixty days, yet it is a justification to the officer, though, in fact, it issued in a case where by law it should have issued for 120 days^</p> <p>In such case every reasonable intendment is to be made in favor of the legality af the process, and the officer had the right to suppose the execution issued in one of those cases where-by law it might issue for 60 days.</p> <p>Hence a replication to a plea of justification by an officer, setting up an execution for more than fifty three dollars damages, and returnable in 120 days, that said execution, when issued and served, was returnable in 60 days and, subsequently, altered to 120 days, though issue is joined thereon by the defendant, tenders an immaterial issue ; and, though found for the plaintiff, the court should not award a repleader, but give judgment for the defendant.</p>

Trespass for cutting down and removing plaintiff’s gate on their turnpike road in Panton, leading from Ferris’ ferry, in Panton, to the main road in Vergennes, &c. The defendant pleaded the general issue, and a special plea in bar, that the road in question was a common highway, and that he, as a citizen of this state, and as one of the selectmen of said Panton, and in pursuance of a vote of instructions of said town, cut down and removed said gate, &c. The plaintiffs…

<p>F. executed his note to R. payable to his order, which was indorsed to S. and notice given to the maker. Before notice of such indorsement, F. signed a note, with H., as his surety to B., and which F. had agreed to pay prior to notice, but which he did not pay till after notice.</p> <p>Held that such payment by F. did not constitute such a claim against H., the original payee, as to enable f . to offset it against S., the indorsee, under the statute of 1T93.</p>

<p> (Practice ) </p> <p> (Petition for Divorce.) </p>

This was an action of the case against the defendants, for the neglect of Harlow Harford, as constable of Poultney for not collecting an execution in favor of the plaintiff against one Allen Belding.

Covenant broken, against the defendant upon the covenant of warranty in a deed executed to the plaintiff by the defendant, as collector of a particular land tax upon the town of Mendon.

<p>A major part of a board of auditors may make a report, provided the report shows that all of them sat in the cause and participated in the deliberations.</p> <p>It is no objection to a report, that items of account, existing prior to a settlement between the parties, are allowed by the auditors, provided it is found that those items were not included in the settlement, and whether included or notis a fact for the auditors to find.</p> <p>If personal services are rendered by N. to K. at the request of the latter, an action will lie for them, unless it appears from the whole evidence that they were designed to be gratuitous ; and this is matter of fact for the auditors to find.</p> <p>It is no legal objection to a charge, that it is made in gross, but it is matter for the consideration of the auditors, and should induce a suitable degree of caution in its examination and allowance.</p> <p>The statute of limitations cannot be insisted upon by way of objection to the acceptance of the report of auditors, if not insisted upon at the time of the audit.</p> <p>A legacy given to a creditor, less than the amount of the debt found due from the testator, and expressed in the will as “being a token of friendship,” cannot be presumed to be in satisfaction of the debt.</p> <p>In a case where no time is agreed upon for the payment for personal services, and no charge, in fact, made for them, nor presentment for payment in the life time of the party, and the claim permitted to sleep a great length of time from the voluntary act of the plaintiff, no interest should be allowed on such claim, except from the death of the party.</p>

This was an action of assumpsit, brought on a sale of a carding machine. Plea, non assumpsit, and issue to the court.

<p>This was an appeal from an order of removal, by two justices of the peace, of Abigail Warner and her two children, from the town of Mountholly to the town of Andover. The defendants pleaded that the paupers were unduly removed, which issue was joined to the jury. It was admitted that Pierce Warner had had his last legal settlement in the town of Andover.</p> <p>The plaintiffs offered in evidence the record of a certificate of marriage of the said Abigal with the said Pierce, on the 5th day of June, 1834, by a justice of the peace of Rut-land county, which was read, without objection. It was admitted that the children were horn since the date of sueh marriage.</p> <p>The defendant town, for the purpose of invalidating such marriage, offered evidence tending to show that such ceremony of marriage was had and celebrated before such justice without the consent of the parties thereto. This testimony was objected to by the plaintiffs, but admitted by the court. The jury were instructed by the court that such marriage would be void in law, if the ceremony was had before the justice without the consent of the parties thereto, but by the constraint and coercion of others. It was admitted that the parties had not cohabited since their marriage. Yerdict for defendants, and judgment thereon, to which the plaintiffs excepted.</p> <p>The contract of marriage, while the parties are living, ought not to. be impeached by strangers to it.</p> <p>Though the present case, on paper, may seem to be a strong one, yet, once admit the principle that strangers to the contract may impeach it, and it becomes a principle of such general adaptation, that it is impossible to foresee to what cases it may be applied.</p> <p>When it is attempted on the ground of want of consent of the parties, and while they are living, it should never be done collaterally or without notice to the parties most interested.</p> <p>If necessary to be done to protect the rights of strangers, the court should require them to cite the parties before the court, that the judgment of the court may be final and conclusive upon the subject matter of it.</p> <p>The justice’s record of the marriage is not conclusive, but parol evidence is admissible to disprove it, to show fraud, duress or compulsion. 2 Starkie’s Ev. 55-2-5-6. A record may be impeached by extrinsic evidence. Dickson v? Fisher, Burr. Rep. 2267.</p> <p>The j'U'ry have found that the parties did not consent to the marriage and that the ceremony was a mere compulsory proceeding, and it is, consequently, Void. 3 M. & S. Rep. 259. 2 Stark. Ev. 506.</p>

<p>A receipt for property attached, in which the receiptor promises the officer “ to re-deliver him the property on demand, or indemnify him against all damages he may sustain in consequence of his having attached the same,” is an absolute undertaking to return the property on demand; and the receiptor cannot justify a refusal under the latter- clause of indemnifying the officer.</p> <p>The officer’s right of action accrues on his making a demand, and the statute oflimitations then begins to run.</p>

<p>Whepe a party has had notice of a suit before a justice, appears, consents to a judgment .’and appeals, but neglects to enter bail, in consequence of whieh^execution issues, he qannot be relieved, on petition, under the statute of 1820.</p>

<p>Threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threatened in fear of their execution, and if they haire that effect, and are calculated ¿"produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment.</p>

<p>The duties of selectmen under the 13th section of the act of November 17, 1825, relating to the duties of listers, are purely ministerial, ■</p> <p>If the party, feeling himself aggrieved by the assessment of the listers, makes and subscribes a written disclosure, in which he especially states tljat his money on hand, and the debts due him, do not exceed the debts he owes, and this is duly sworn to before one of the selectmen of the town, it is a compliance with the requisitions of the statute, and the selectmen have no right to require him to answer particulars.</p> <p>If the selectmen neglect to certify and deliver to the town clerk such disclosure so made and sworn to, and delivered into their hands for that purpose, they become liable to the party in an action on the case, for such damages as he shall sustain by reason of such neglect.</p>

This was a petition for leave to enter an appeal from the judgment of the commissioners, on the estate of Nathan Pratt, deceased, disallowing two claims presented by the petitioner against said estate. One of said claims was in the name of Barlow & Ewing, for $21,58, of which $10,17 was disallowed. The other was in the name of Barlow & Osgood, for $19,68, the whole of which was disallowed.

<p>Scire facias is not the appropriate remedy to obtain a new execution, when the former execution has been levied upon real estate in a defective manner, especially where the defect does not appear upon the face of the levy.</p> <p>The remedy given by statute in such case should be considered as superseding all other remedies.</p>

<p>This was an action of debt on a judgment rendered by a justice of the peace, and the question, in this court, was upon the validity of that judgment. The plaintiff had commenced his action against the defendants before the justice, declaring in case for a nuisance in erecting a board fence so near the dwelling house of the plaintiff that his lights were obstructed and he injured in the use and enjoyment thereof. From the justice’s records it appeared that, in that suit, the defendants pleaded to the jurisdiction of the court, alleging that the action related to an interest in lands, and that the land, upon which the fence was erected, belonged to the defendants. This plea was overruled by the justice, and the judgment, being the same on which this suit was brought, was rendered for the plaintiff.</p> <p>The defendants, in the county court, pleaded that that court ought not further to take cognizance of or sustain the action upon said judgment, because the cause of action, in the suit in which the judgment was rendered, if any, was not within the jurisdiction of a justice of the peace, &c. On demurrer to the defendants’ plea, the county court rendered judgment for the defendants. The plaintiff excepted.</p>

<p>A receipt in full of all demands, given upon consideration of stifling a criminal prosecution, is void.</p>

<p>On an appeal from a court oí probate, the party appealing must file objections to the decree appealed from, to which the other party may plead. When an appeal is taken by executors from a decree of the probate court, disallowing a will, if they do not state their objections to the decree, a general allegation on the part of the appellees, that the deceased made no legal will, is sufficient.</p>

Book, account. It appeared before the auditor that, in December, 1834, David E. Young, a minor son of the defendant, went into the western part of the state of New York and hired himself to the plaintiff, and continued to work for him till the 9th day of October, 1835, when he became sick, and the account in suit was for the expenses of his sickness.

Ejectment. The defendant pleaded the general issue. Trial by the court.

Assumpsit upon the following guaranty ;— “ Poultney, April 10, 1834. — This certifies that I have .“ this day sold to William Wheeler a note against Samuel “Hamden, of Wells, dated 27th March, 1834, for the sum “ of $51,56, given to me or bearer, which I warrant good “ and collectable until the 1st day of July, 1834, signed by “ Samuel Hamden, of Wells.

This was an action of assumpsit in favor of the plaintiffs, as indorsees of anote signed by the defendant and made payable to G. Johnson, or bearer, in one year from its date, in current bills. Plea, non assumpsit, and issue to the court. The county court decided that said note was negotiable, and rendered judgment thereon for the plaintiffs. To which the defendant excepted.

This was an action of book account. The plaintiff was an infant, under guardianship, and sued by prochein ami. The defendant pleaded, in abatement, that the suit should have been brought in the name of the guardian. The county court adjudged the plea insufficient, and the defendant excepted.

Action of book account. At the hearing before the auditor, the parties exhibited their accounts, and the defendant objected to the plaintiff’s charges, and contended that they should have been made against H. S. & J. Brown.

<p>A new trial will not be granted to enable the party to avail himself of a legal defence, where it is inequitable, and substantial justice has been done.</p> <p>Questions of law raised and decided on exceptions, by the supreme court, cannot be again presented on a petition for a new trial.</p> <p>Nor on such petition is the affidavit of an auditor to be received, to show what he intended by his report.</p>

It appeared from the bill and answers in this case, that the congregational society of Middletown was originally organized, under the acts of the legislature of this state for the support of the gospel, and that their organization had been several times revised and altered ; that in the year 1805, a fund- was raised by the society for the support of a minister, upon the understanding that the intestate should be settled over the society within a limited time; 'that he was…

<p> (In Chancery,) </p> <p>The orator may draw his bill with a double aspect, so that, if he fails of obtaining redress in one mode, he may resort to another in the same suit. And it makes no difference, that one ground of claim is wholly inconsistent with the other.</p> <p>All parties, interested in the subject matter of the bill, should regularly be made parties, either as orators or defendants.</p> <p>But where their testimony is taken in the case, and they therein expressly disclaim all interest in the controversy, this supersedes the necessity of their being joined as parties.</p> <p>What is a sufficient donatio causa mortis to vest the property in the donee upon the death of the donor.</p> <p>When the main controversy in a bill is decided against the orator, although he succeed in obtaining a decree, the defendant will be entitled to have his costs up to the time of the decision of the main controversy.</p> <p>In proceedings in chancery in the nature of an amicable suit, costs are not decreed.</p>

The orator’s bill stated, in substance, that Seba Eastman, in October 182S, executed a lease of a certain farm, described in the bill, to the defendant and his wife, during their natural lives, and afterwards, in February 1832, conveyed his reversionary interest in the farm to the orator.

The orators were members of a voluntary association called the Evangelical Society, formed in 1804, for the purpose of assisting indigent young men in acquiring an education to qualify them for the Christian ministry. The funds were to be obtained by the gratuitous labor and contributions of the associates and others.

This was a bill to foreclose the equity of redemption in certain real estate, mortgaged by the defendant to the orator, to secure the payment of a note for the sum of one hundred and fifty dollars, dated 12 May 1835, and payable on the 1st day of April then next, with interest.

This was an action of assumpsit against the defendant as indorser of a promissory note. The declaration described the note as bearing date March 27, 1827.

This was a trustee process, and, on the trial in the county court, from the disclosures and other testimony, the following facts appeared. The writ, in this case, was served on the ■trustees on the 22d day of February, 1837. H. Safford, on the 31st of January, 1837, gave to J. Whiton, the principal debtor, a note for $525, payable to said Whiton, or order, in one year.

This was assumpsit oil the promise of the defendant to pay terms imposed by the court of chancery for the continuance of a cause pending in that court. The defendant was solicitor for one Silas Sutherland, the orator in that case, and the present plaintiffs were defendants. Plea, general issue and trial by the court.

This was an action of account, which was referred by a rule of the county court and by agreement of the parties.

Ejectment. Plea general issue, and trial by jury. The plaintiff claimed title to the premises by virtue of a deed, dated June 13, 1834, from Noah Smith, who derived his title under a levy, on the 11th of June, 1834, of an execution in his favor, against Thomas Dunton and Christopher W. Fenton.

This was an action of debt on a recognizancé. The defendant pleaded nul tiel record, and also a declaration in offset, as folio tvs: And for further plea in this behalf, ip pursuance of the statute in such cases made and provided, the defendant, by way of offset to the plaintiff’s claim, declares against the said Horatio in a plea of the case ; for that whereas the said Horatio, at Manchester aforesaid, on the 25th day of May, 1836, by his note under his hand of that date,…

<p>Any original writ may be amended, when there is sufficient expressed to determine, with certainty, the nature and object of the process, or, as it is expressed in the English practice, when there is any thing to amend by.</p> <p>A- person, who has not been appointed to the office of deputy jailer, but with whom the sheriff entrusts the keys of the prison, and who is suffered to take prison bonds for the enlargement of persons committed and who signs such bonds as a witness, is competent to testify on the part of the plaintiff in a suit upon such bond in the name of the creditor, at least to the execution of tire instrument.</p>

<p>This was a bill of interpleader. The orators were selectmen of the town of Pownal, and, as such, had in their possession, certain moneys arising from the rents of land granted to the first settled minister in said Pownal. The land in question had been in controversy between Benjamin Gardner and the town of Pownal, the former having claimed it as the first settled minister of said town. To settle that controversy, the said Gardner proposed to convey, and did, on the 2d day of December, 1789, convey said land to the then selectmen of said Pownal and their successors in office, “in trust for the use and benefit of said town forever, “ the annual rents and profits of which are to go and be “ disposed of to and for the use and support of a gospel “ minister or ministers in the eastern and western parts of “ the town, in proportion to the number of inhabitants at- “ tending or inclined to each respective meeting, excepting “ always the church of England, or society of that order, in “ consequence of these having heretofore a right given them “ through the town for a similar purpose.”</p> <p>On the same 2d of December, 1789, the town, at a meeting legally warned for that purpose, voted to accept said deed, and to appropriate the annual rents and profits of said land to the use and support of the gospel in said town of Pownal, forever, every voter of said town to have his equal proportion of said rents and profits, if called for by such individuals, to be contributed for the support of the gospel, wherever, in said town, they should choose ; and said town, at said meeting, further voted to exclude the church of England from any share in said rents and profits.</p> <p>The orators were chosen selectmen on the 24th of March, 1837, and held the money received by them from the rents of said land, because, as charged in the bill, they did not know in what manner it ought legally to be distributed.</p> <p>At the date of said Gardner’s deed, there was no religious society in the town of Pownal excepting baptists. The defendants were described as each claiming the whole or a part of the rents, in their several capacities as ministers of the gospel in said town, and the prayer of the orators was, that the defendants might be required to interplead and settle and adjust their respective claims to §aid money, so that the orators might be enabled to pay over the amount in their hands to the persons legally erf titled to it.</p> <p>It appeared from the several answers of the defendants, that the defendant, Pratt, was the minister of the methodist society in said town, duly ordained ; that the defendant, Rogers, was a minister duly settled over the baptist society in the eastern part of said town, and, as 'such, claimed the whole of the rents of said land, on the ground that the society of baptists formerly existing in the western part of said town, about the year 1810, became extinct by the death and removal of many of its members, ánd by the union of said last mentioned society with the baptist society in the eastern part of said town.</p> <p>It further appeared that the defendant, Dutcher, was an elder or minister of the baptist denomination, and preached in the eastern part of said town till about the 25th of February, 1837, when he ceased to preach, but had ever since resided in said town.</p> <p>It also appeared that the defendant, Ladd, was a minister of the reformed methodist church in said Pownal, and occasionally preached as such.</p> <p>It also appeared, that at a meeting of the town of Pownal, holdenin February, 1790, it was voted to settle Elder Caleb Nichols and Elder Francis Bennett on the ministerial lands in said'Pownal, the said Nichols and Bennett being both ministers of the denomination of baptists,and that the town accepted the report of a committee previously appointed to divide, and who did divide said lands between said Nichols and Bennett as such ministers.</p>

<p>This was a scire facias on a recognizance. The facts, as alleged in the declaration, were, that on the 12th day of March, 1836, Daniel Rounds presented his complaint to a justice of the peace for the county of Windham;'against Rufus Rice, one of the defendants in this casé, charging the latter with having forged a note, purporting to have been signed by one Willard Dean, since deceased, of whose estate the complainant was a creditor. The complaint was duly sworn to* On that complaint the justice of the peace issued his warrant, against the said Rice, having first taken a recognizance to ensure to said Rice the costs of prosecution, but no recognizance was taken to the state or town. The respondent was arrested upon the warrant, and, after inquiry by the said justice, was ordered to enter into a recognizance with sureties, to the treasurer of the state and to the complainant, in the sum of $600, for his appearance at the next term of Windham county court. The respondent, having failed to enter into such recognizance, was committed to jail, and afterwards, on application to a judge of the county court, was admitted to hail by said judge, and was recognized as principal and the defendant, Burgess, as surety, in the sum of $300, as well to the treasurer of the state as to the said complainant, with the usual condition that the respondent appear, &c. At the September term of said county court, 1836, an indictment was found against said Rice and, at the September term 1837, the bonds were called and the recognizance became forfeited, and the court adjudged that said recognizance might be prosecuted by the state treasurer. This scire facias was brought upon that recognizance. The defendants demurred to the plaintiff’s declaration and the county court adjudged said declaration sufficient; — To which the defendants excepted.</p> <p>The recognizance in this case having been entered into for the purpose of avoiding an imprisonment under a warrant made by a justice of the peace on a private complaint — the defendants contend that the warrant, and therefore the imprisonment, had no legal authority ; for</p> <p>I. It is not given by the common law, because, formerly, such warrant must proceed from the court having jurisdiction to try the offence. Hawk. PI. Or. B, II. c. 13. $16. In 14 Hen. 8., it was said by Fitzherbert that “ a justice cannot make a warrant to take one for felony before he is indieted,” to which it is added that the whole Court agreed, [14. H. 8. fol. 16.] and Lord Coke says, that, in his time, this resolution of the judges was held to be good law. Sergeant Hawkins, indeed, declares that when he wrote, the long practice of the mstices seemed to have altered the law,— , J. . . but that they claimed the power rather by connivance than any express warrant of law. Hawk. ub. supra. <§>16.</p> <p>II. It is, at least, in cases like the present, not given by statute, for it is to be observed that there are two classes of prosecutions contemplated, — 1st. for those offences to which infamous and heavy punishments are annexed, such as those contained in the act against high crimes, &c., 2nd. for smaller offences, where private interests are affected or directly enlisted, — such, among others, as introducing the small pox or selectmen failing to notify'the sanie, in which case the fine or forfeiture is to be recovered by information or action and belong one half to the prosecutor. Stat. 494-5.</p> <p>So also the Stat. p. 281., where, for demolishing sign posts and the like, the fine is to be recovered by information or indictment with costs of suit, and if- there is a private prosecutor, he to have half thereof — and whatever party might be injured, he to recover, besides, treble damages. These statutes, which, as well as some others, directly countenance a private prosecution, being followed so soon by that relating to fines and recognizances, may be presumed to have been in contemplation of the legislature, pot only in passing the 7th and 8th sections of the latter statute, but also, when revising the same in 1800 — and probably in 1801. Stat. 287. No. 2 But in cases involving life, liberty and reputation, the pecuniary interest in procuring conviction (arising from the indispensable recognizance) which might be salutary in minor cases, would be often most pernicious here, as the state has more concern in protecting the innocent than in punishing the guilty. Hence by the act of 1801, Stat. 421, the grand jurors of towns, who are constituted informing officers, are to prosecute only offences “which they, in their conscience, shall think the design of the law and the good of community require,” evidently treating the power not as a mere question of costs, but as a public trust, to be exercised under the official oath of impartiality, checked by a conscientious view to the public good. This trust, in so far as private prosecutions are allowed, must be surrendered, the cheék lost, and the power lie open to be wielded by every one able and willing to meet the expense. Besides, the implication of such a power (by which alone it can be assumed) is not required, in relation to high crimes, by any public necessity or convenience, since the act of 1819 has made every town grand juror an informing officer, throughout his whole county. See Stat. 264, which, being made a part of the act respecting such crimes, seems to point out the sole method by which prosecutions under it are to take place. Com. Stat’s. from 1779 to 1801, passim, and also Brackett v. State, 2 Tyl. R. 152, with Stat’s. of 1801 and 1819.</p> <p>All the proceedings, in this case, have been conformable to the spirit, and even to the letter of the statute. To decide that the recognizance is void, would render the statute inoperative in every case in which it was intended to operate upon prosecutions by any person “ other than jan informing officer.” The statute is entitled, “ an act, relating to fines, forfeitures, penalties and costs, and directing the mode of taking recognizances, in certain cases.” ■ Vol. 1. p. 285. The 7th section authorizes “ any person other than an informing officer to become a prosecutor for the breach of any penal law, or for any other offence.” And this recognizance was taken agreeably to the very letter of the statute.</p> <p>At common law, every man is, of common right, entitled to prefer an accusation against a party whom he suspects to be guilty of an offence.</p> <p>The persons thus legally entitled are in general bound by the strongest obligations, both of reason and law, to exert that right.</p> <p>This moral obligation is, in many cases, enforced by the laws themselves, and in many more is encouraged by their sanction.</p> <p>There are also many instances in which the law has rendered it either necessary or advantageous to the party, immediately injured, to prosecute, as it affects his own private interests; wisely interweaving his own advantage with the public benefit. 1 Chilty’s Criminal Law. 1. 2, 3, 4.</p>

This was a scire facias, commenced before a justice and appealed to the county court.' It was against the defendant, as bail of one Heaton, on a writ returnable before the justice, alleging that judgment was rendered against Heaton, on the 22d day of May. The defendant pleaded nul tiel record, .

<p>Trover, for sundry articles of household goods.</p> <p>Plea — not guilty, and trial by jury.</p> <p>It appeared, on the trial in the county court, that, in the summer of 1836, one Pratt and his wife were living at New Fane, where said Pratt was confined in close jail, and his wife became sick, and one or both became chargeable, as paupers, to said town ; that an order of removal was thereupon obtained, treating said Pratt and wife as persons having their legal settlement in the town of Marlboro’, which town was notified of said order. Their settlement in Marlboro’ did not appear to have been ever disputed. It also appeared, that the plaintiff, Knapp, had previously contracted with said town of Marlboro’, to support the poor of said town, for the year ’ending in March, 1837, for a specified sum ; that the plaintiff, Worden, had joined said Knapp in a bond to said town, to secure the fulfilment of said contract. And the evidence tended to prove that the plaintiffs were jointly concerned in supporting the poor of said town, for that year. It also appeared that, upon receiving notice of said order of removal, said town of Marlboro’ required of one or both the plaintiffs to support said Pratt and wife, as paupers belonging to said town; — That the plaintiffs did thereupon take charge of, and support the wife of said Pratt for the remainder of said year, at considerable expense ; removing her first to Putney and afterwards to Marlboro’,andthat, with said woman, the plaintiffs received the property in question, being the household stuff and furniture of said Pratt and wife.</p> <p>It appeared that said Pratt absconded, upon getting released from his said confinement. The evidence tended further to show', that, at different times during the year aforesaid, the plaintiffs remonstrated with the overseers of the poor of Marlboro’, against supporting said woman, unless they could have the property aforesaid as a consideration, or part consideration, for so doing; insisting that while she continued to possess and own said property, she was not such a pauper as they were under contract to support. The evidence also tended to prove that the plaintiffs, for the reasons aforesaid, repeatedly claimed said property, and asserted their determination to retain the same to their own use, or to exact the value thereof; but it did not tend to prove that any of the overseers of the poor, or said Pratt or wife, ever acceded or assented to said claim of the plaintiffs. It further appeared that, after the year aforesaid had expired, one Kelsey contracted with said town of Marlboro’ to support the poor of said town, (including the said Mrs. Pratt,) for the year succeeding; that, upon the 4th day of April 1837, the defendant, being one of the overseers of the poor of said town, went with said Kelsey to the house of the plaintiff, Worden, where said property was, for the purpose of receiving said property, to the end that said Kelsey might take and keep the same, with Mrs. Pratt, and for her use and convenience ; that said Worden delivered the same, taking the defendant’s receipt of that date for said property, and knowing that it was to go immediately into the possession of said Kelsey, who then received and carried it away. On this occasion said Worden repeated to the defendant his claim to said property, and declared his intention still to have it, or its value. It was further proved that, on the 15th day of December, 1837, said Worden sent his brother, Nathaniel Worden, to demand said property of the defendant; that it was demanded in presence of said Kelsey; that in answer to said demand the defendant said the property was in said Kelsey’s possession, upon which Kelsey said, “ Nathaniel cannot have it till my year is out.” The defendant said nothing further. It appeared that, at the expiration of said second year, said property, with Mrs. Pratt, was passed over by said Kelsey to one Morse, who succeeded Kelsey, in supporting the poor of said town.</p> <p>Upon these facts, and the evidence aforesaid, the court decided that the action was not sustained, — and a verdict was thereupon returned for the defendant. To which decision of the court the plaintiffs excepted.</p> <p>I. Evidence was introduced on both sides, the truth of which ought to have been submitted to the jury. The court, however, took it all out of the hands of the jury, and decided that the action was not sustained. Here there was error.</p> <p>II. Taking all the facts as found by the court, the plaintiffs were entitled to recover; for they proved (1.) a property in themselves, and (2.) a conversón by defendant.</p> <p>1. As to the property.</p> <p>The goods in question were in the possession of the plaintiffs, claiming to hold them even as against Pratt, the owner, by virtue of a lien for moneys expended in support of Pratt’s wife.</p> <p>The sufficiency of this lien need not here be inquired into, as it is well settled that possession, simply, gives a special property, sufficient to maintain trover against all but the rightful owner. 1 Chit. PI. 173.</p> <p>Nor was this special property lost by parting with the possession under the circumstances of this case ; for</p> <p>1'. Defendant set up a false claim of right in himself.</p> <p>2. The plaintiffs qualified their delivery of the goods by an express reservation of their rights.</p> <p>2. As to the conversion.</p> <p>Every disposition of goods in the way of sale, lease, loaning to use, &c., is a conversion.</p> <p>The defendant took the goods from plaintiffs and put them into the hands of Kelsey, under a contract, that he might use them for a year.</p> <p>It is no answer to say that plaintiffs knew that Kelsey was to take the goods, for the particular contract between defendant and Kelsey does not appear to have been known to plaintiffs. Besides, it was the folly of defendant, when he was apprised that plaintiffs did not yield their rights, to put the goods in such a situation that he could not restore them on/lemand.</p> <p>There was, then, a sufficient conversion, unless defendant acted under authority.</p> <p>(1.) An authority from Pratt is not pretended.</p> <p>(2.) An authority, incidental to the general powers of an overseer, cannot be contended for, as the law vests such power always in a guardian.</p> <p>(3.) An authority expressed in, or incident to the contract of plaintiffs to support the poor of Marlboro’, for a year, does not extend to this case.</p> <p>I. It does not appear that the plaintiffs ever had any right or title, in law, to the property in question, but, on the contrary, it was, and still continues, the property of the paupers.</p> <p>II. The plaintiffs never had, in law, any possession of the property or any right to the possession.</p> <p>III. There are no facts which show that the defendant was guilty of a conversion of the property.</p> <p>1. It was not tortiously taken by the defendant from the plaintiffs, but was delivered by them.</p> <p>2. It passed directly from the plaintiffs, with their knoioledge and consent and delivery, to Kelsey, to be by him kept with Mrs. Pratt, and for her use.</p> <p>3. Though the case finds a demand made upon the defendant for the property, and his neglect or omission to deliver the same, yet the reply of the defendant to the demand, “ that the property was at Kelsey’s” so explains the neglect to deliver it as to show there was no conversion of the property*</p> <p>A demand and refusal is not an actual conversion, but on evidence of it and subject to explanation, and, if it appears that defendant has not been guilty of an actual conversion, the demand and refusal amount to nothing. 2 Phillips’ Evidence, 119. Smith v. Young, 1 Camp. R. 440.</p> <p>IY. To sustain an action of trover, it is necessary to prove a right of property and right to possession in the plaintiff, except that, perhaps, a right to possession, as against a stranger, would be sufficient. Heylv. Burling, 1 Caines’ R. 18, note A.</p> <p>Again — It is a good defence in trover to show that the property does not belong to the plaintiff, but to a third person. Schermerhorn v. Van Volkenburgh, 11 Johns. R. 529.</p> <p>In the present case, the plaintiffs neither had the right of property, nor the right of possession, and if both had been in the plaintiffs, inasmuch as there was no conversion of the property by the defendant, the court were right in deciding that the action was not sustained.</p>

<p>A justice of the peace cannot permit an amendment which changes the . parties and the cause of action.</p> <p>And when such amendment was made by order of a justice, and the cause appealed to the county court, that court were right in dismissing the action on motion of the defendant</p>

<p>No action at law can be maintained to recover a distributive share in an estate belonging to a feme covert, unless it be upon the administrator’s bond.</p>

<p>A complaint for bastardy may be prosecuted in the county in which the mother resides and has her settlement at the time of the complaint.</p>

<p>A decision made by this court is an authority where tire same point comes again in question in relation to the same controversy.</p> <p>A turnpike company, under an act of incorporation, allowing said company to erect gates and receive toll, may, from time to time, alter the location of such gates.</p> <p>A public road cannot be laid on a turnpike road so to take the road from the owners of the turnpike,</p> <p>There can be no prescriptive right in the public'to have the gates remain iq any particular place.</p>

<p>Private business corporations, by our statute, may convey real estate by the deed of their president, and such deed may be sealed with the seal of the president.</p> <p>Such corporation, at the annual meeting, if there be no restriction in the charter or by-laws, may transact any business incident to the corporate interests.</p> <p>CJurere, — Whether a by-law of such corporation, requiring all meetings to be notified by the clerk in a particular manner, when it forms a portion of the article in regard to special meetings, and from its provisions would seem to have reference only to special meetings, should be construed to extend to the annual meeting ?</p> <p>And if such notice has reference to slated, as well as special meetings, Qucere, — Whether a failui# to comply with the formal part of the notice renders the business transacted at the meeting inoperative ?</p> <p>Held — That such notice of the annual meeting need not state the busines» to be transacted, as, the provision in regard to such meeting being general, it was, ex vi termini, for the transaction of all business, incident to the corporate power and interests.</p>

Covenant broken, on the following instrument, viz: “ Received of Solomon Downer the sum of five hundred and twenty four dollars and eighty five cents, in demands assigned and transferred this day by John Tinney to the “ said Solomon and myself, which demands are appropriated to the payment of claims which the said Solomon and my- self hold against the said Tinney, in proportion to our re- “ spective claims against the said Tinney, — the sum of my claim amounting to $1232,…

<p>Trespass, for taking certain articles of personal property.</p> <p>Plea, Not Guilty, and notice of special matters under said issue by way of justification. — Issue joined to the court.</p> <p>On the trial in the county court the taking was admitted by the defendants.</p> <p>Under said plea and notice, the defendants gave in evidence an act of the legislature of this state, incorporating the village of Woodstock, passed Nov. 11, 1836, which was received without objection.</p> <p>The 4th section of said act of incorporation, among other things, provided that the inhabitants of said village might tax themselves, and levy and collect taxes, to carry into effect any vote or by-law of said corporation ; — provided that no tax should be assessed, except by vote, at a meeting of said inhabitants, warned for that purpose.</p> <p>The 5th section gave the corporation power to enact such by-laws and regulations, as they should, from time to time, deem expedient; — particularly such as might relate to their streets, side-walks, lanes and commons, and the shade and ornamental trees thereon, &c.</p> <p>The 6th section provided that the clerk, treasurer and collector should be sworn to the faithful discharge of the duties of their respective offices, &c.</p> <p>The 7th section made it the duty of the clerk to keep records of all the proceedings of the corporation and give copies of the same, when required, and warn all meetings, annual and special, agreéably to the directions of the trustees.</p> <p>The 8th section made it the duty of the trustees to make out and deliver to the collector an assessment or rate bill of all taxes which should be laid by the corporation, — and, in case of the death, removal, absence or incapacity of the clerk, it provided that the trustees might designate one of their number to perform the duties of clerk.</p> <p>The 9th section enacted that the inhabitants and territory, included in the limits of said village, should belong to said town of Woodstock, in the same manner as though that act had not passed.</p> <p>The defendants also introduced the by-laws of said corporation, one of which made it the duty of the trustees to keep the side-walks of the village, and the fence around the common, in proper repair, and plant such shade trees in the streets, and on the common, as they might think proper.-</p> <p>It was conceded by the plaintiff, that said village was duly organized under said act; — also, that at a meeting of said village, held January 2, 1837, Nahum Haskell was duly chosen clerk of said village; — and, at the same meeting, the defendants were duly chosen trustees, and George C. Pratt collector of said village.</p> <p>The defendants then gave in evidence the record of a warning, signed by Nahum Haskell, clerk, and dated 22 April, 1837, calling a meeting of the inhabitants of said village, to be holden on the 2d day of May, 1837, which was received without objection.</p> <p>The objects of said meeting, were stated in the warning to be;—</p> <p>1. To see if the village will order the trustees to re-build the. fence around the common in said village:—</p> <p>2. To see if the village will order the trustees to purchase an engine and hose for said village:—</p> <p>3. To raise money to defray the expenses of said village : — and</p> <p>4. To do any other business, thought proper, when met.</p> <p>It was agreed by the parties that the property, sued for, was taken by the said George C. Pratt, as collector, by virtue of a tax-bill and warrant, committed to him by the defendants, as trustees of said village ; — purporting to be in Pursuance °f a vote of said village, raising a tax of five cents on the dollar, on the grand list of said village, at a meet'ng °f said village, purporting to have been holden on the 2d day of May, 1837. Said tax-bill and warrant were produced and admitted in evidence, the plaintiff reserving the right of objection to their sufficiency and relevancy.</p> <p>The defendants then offered in evidence the regular book of records of said corporation, containing, among other things, what purported to be a record of the doings of a meeting of said village, holden on the 2d day of May 1837, which was as follows, viz.—</p> <p>At a meeting of the inhabitants, legal voters of the village of Woodstock, legally warned and holden, at the town hall in Woodstock, on Tuesday, the 2d day of May, 1837 ;—</p> <p>1. Chose Asaph Fletcher, jr. chairman.</p> <p>2. Chose Josiah Chandler, jr. clerk, pro tern, in the absence of N. Haskell, standing clerk.</p> <p>3. Voted, to instruct the trustees to procure stone posts for the repair of the common fence, in this- village, by next winter.</p> <p>4. Voted, that the trustees be directed to purchase a fire engine for this village, with hose.</p> <p>5. Voted, to raise five cents upon the dollar, on the grand list, to be collected in the month of September next.</p> <p>Voted, to dissolve the meeting*.</p> <p>Asaph Fletcher, jr. Chairman.</p> <p>Josiah Chandler, jr. Clerk, pro tern.</p> <p>Woodstock, May 8, 1837.</p> <p>Then Josiah Chandler, jr. made solemn oath that the foregoing is a just and true record, made by him, of the doings of the meeting.</p> <p>Before me, N. Haskell, Justice Peace.</p> <p>A true Record. Attest, N. Haskell, Village Clerk,</p> <p>The defendants also offered, in connection with the foregoing record, the paper annexed and marked “A.” — and in connection, also, with parol evidence that Josiah Chandler, jr. was, at said meeting, chosen and acted as clerk, pro tem. that the proceedings were had at said meeting, which .are set forth in said paper, marked “ A.” and that said Chandler made the said memorandum and signed it, and that he handed the same over to the regular clerk of said corporation, (Nahum Haskell,) by whom it has ever since been kept among his files.</p> <p> A. </p> <p>At a meeting of the village corporation of Woodstock, Vt. 2d May, 1837, “warned” pursuant to previous notice ;—</p> <p>1. Chose Asaph Fletcher, jr. chairman.</p> <p>2. Chose Josiah Chandler, jr. clerk, pro tem. in the absence of N. Haskell, standing clerk. •</p> <p>On Motion;—</p> <p>3. Voted, to instruct the trustees to procure stone posts for the repair of the common fence in this village, by next winter.</p> <p>4-. Voted, that the trustees be instructed to purchase a fire engine in this village, with hose.</p> <p>5. Voted, to raise five cents on the dollar, upon the grand list, to be collected in the month of September next.</p> <p>Voted, to dissolve the meeting.</p> <p>Attest, Josiah Chandler, jr., Clerk, pro tem.</p> <p>Asaph Fletcher, jr., Chairman.</p> <p>Which said records, paper marked “A” and parol testimony, so offered by defendants, were all objected to by the plaintiff, but admitted by the court. It was also shown that said George C. Pratt was, on the 15th day of June, 1837, duly sworn to the faithful discharge of his duty, as collector of said village.</p> <p>From the foregoing testimony, the county court found the facts; viz. that on the 2d day of May,1837, at a meeting of said village, regularly and duly warned and holden for that purpose, said Josiah Chandler, jr. was duly elected and acted as clerk, pro tem. of said meeting, in the absence of N. Haskell, standing clerk ; — that a vote was regularly passed to-raise five cents on the dollar upon the grand list of said village, to be collected in the month of September, then next; that, in pursuance of said vote, the defendants, as trustees of said village, did make out their rate-bill in due form, and did, on the first day of June, 1837, deliver the said rate bill, together with a regular warrant, signed by a justice of the peace, in proper form, to said George C. Pratt, as collector, for collection, and that, in pursuance of said rate-bill and warrant, the said Pratt took the property mentioned in the plaintiff’s declaration ; — also, that said Josiah Chandler, jr. made the said memorandum marked “ A” and signed it, and that he handed the same over to Nahum Haskell, the regular clerk of said corporation by whom it has ever since been kept on the files of said corporation ; — Also, that said Josiah Chandler jr. was not otherwise sworn, than as set forth in the certificate of N. Haskell, upon said book of records — Also, that said George C. Pratt was, on the fifteenth day of June, 1837, duly sworn to the faithful discharge of his duty, as collecter of said village.</p> <p>The following facts were, on the trial, conceded as true, viz.; — That the said tax of five cents on the dollar was raised for the purpose of procuring stone posts for the repair of the fence around the common, in said village, and for purchasing a fire engine for the use of the village; — that the said common had been used as an open, public common, for as many as forty years, next prior to the year 1830, when it was by individuals inclosed by the same fence, by. which it is now inclosed, and shade trees were also set out around said common, within said fence; that, from the time said common was fenced, as above mentioned, to January 1837, the grass, growing within said inclosure, was sold, from year to year, for the purpose of defraying the expense of erecting said fence; — that, in the year 1837, said grass was sold by the defendants as trustees of said corporation, lor the purpose of defraying the expense of manuring the said common and keeping the said fence in repair, — and that, in the year 1838, said grass was sold by said trustees for the sum of five dollars, in manure for the common, and to keep the fence in repair.</p> <p>The county court rendered judgment for the- defendants, and the plaintiff excepted.</p> <p>I. As to to the admissibility of the testimony.</p> <p>One objection taken to the record, on the trial below, was-, that it was not competent for Haskell, the standing clerk, to make a record of the doings of a meeting, at which he was not present. A record “imports verity,” and implies official knowledge of the facts recorded, and an official oath, if one be required. 4 Coke’s R. 70, Abridgment 117. 3 Dane’s Abridgment, p. 294-5, ch. 80, art. 2, §1. Id. p. 312, ch. 81, art. 2, §15. Dodds v. Henry, 9 Mass. R. 264. Taylor v. Henry, 2 Pick. R. 401-2.</p> <p>Both the record and paper marked “A.” depend for their verity wholly upon the attestation of Chandler, the acting clerk, pro tern.</p> <p>In all cases, where the courts require proof of the appointment, they do also of the oath. Mayor of Kxeter v. Staire, 2 Shower’s R. 163. Andrews v. Chase, 5 Vt. R. 413.— The King v. Roberts, 30 Com. L. R.- 213.</p> <p>We admit the correctness of the position that, in relation to all public officers, appointed under the general laws, and concerned in the administration of the government, so far as it regards the public or third persons, — and, perhaps, may be included the regular officers, under their respective charters, of all corporations, both public and private, where the fact comes collaterally in question, and so far as it regards third persons, and for all purposes of protecting the corporate interests as against strangers, or. of enforcing the contracts of the corporation with third persons, both in favor of and as against the corporations, — it is sufficient to show them officers defacto, publicly acting and recognized as such, without proof of either their appointment or oath.</p> <p>But the ruléis not applied by the courts, indiscriminately to all officers nor in all cases. It does not apply to a suit, as a quo warranto, brought to try the right to the office.</p> <p>Neither does it apply to the case of an officer who is such by special appointment, for a particular purpose or occasion only. Adams v. Jackson, 2 Aik. R. 147.</p> <p>Were this a suit against the corporation, they could not justify by merely showing the attesting clerk to have been such, defacto, any more than that they -were a corporation, de facto, or that there was a meeting, de facto, or that the trustees or collectors were such, de facto.</p> <p>This suit, though brought against the trustees, for the reasons given by the court in Waters v. Daines, 4 Vt. R. 602, is, in effect, a call upon the corporation for its authority assumed, and, a like quo warranto, puts in issue the corporate existence and the powers assumed, the official powers and qualifications of the agents it employed in collecting the tax, as well as the regularity and legality of the doings, both of the corporation and its agents, so far as they are necessary to make out a justification, both in matters of substance and of ' form. They must be shown to be in conformity with the requisitions of the act of incorporation. If so, the record, being the foundation and only legal proof of the whole, should, a fortiori, be got up according to law.</p> <p>As to what provisions in an act are to be regarded as merely directory, and in what cases, or when as conditions precedent, see opinion of Story, J. in Bank of U. S. v. Dandridge, 12 Wheaton’s R. 614. 6 U. S. Cond. R. 454.</p> <p>It was the legislative intention, in the provision in question, that, as against the members to be bound by the record, .the oath of the clerk should be a condition precedent to the exercise of the power. See, also, Chief Justice Marshall’s opinion, 1 Burr’s Trial, 97 to 100. Colburn v. Ellis etal., 5 Mass. Rep. 427. Welles et al, v. Battelle et al., 11 do. 480-1.</p> <p>The oath taken by Chandler, the acting clerk pro tem. was in no sense an official oath, within the meaning of the legislature, but a mere affidavit of facts — the oath administered .extra-judicially, in a case not provided for by law, and to which the penalties for false swearing could not attach. It was no more an official oath than his testimony upon the stand to the same facts.</p> <p>Another objection taken is, that inasmuch as the act points out the mode in which the evidence of the corporate votes is to be perpetuated, in the absence of the regular clerk, to wit, by “the trustees designating one of their number to perform the duties of clerk,” the corporation could act in no other mode. 2 Kent’s Com. 240. Bates v. Haseltine et al, 1 Vt. R. 83. Angelí & Ames on Corporations, p. 291, § 13.</p> <p>But, admitting the power to be in the corporation to act by a clerk pro tem. of their own appointment, from necessity, when the business could not otherwise proceed, that case must exist and the necessity be shown, and should appear of record, — at least it must appear in some way. Unless a majority of the trustees were absent also, there was no more necessity for acting by a clerk, pro tern, to be chosen by the corporation at large, than if the regular clerk were present. See the Andover and Medford Turnpike Co. v. Gould, 6 Mass. R. 144. Head fy Amory v. Providence Insurance Co. 2 Cranch’s R. 127. 1 Cond. R. 374-5. Rex v. May- or Sfc. of Liverpool, 4 Burr. R. 2244.</p> <p>The paper marked “A.” is no record evidence, — for a regular book of records of the corporation was produced, of which this is no part. Besides, it is subject to the objections before urged. It could only be used as a memorandum to refresh the memory of the witness, provided parol evidence was properly received.</p> <p>Next; — Was parol evidence of the appointment of Chandler, as clerk pro tern, or of the vote of the tax admissible ?— We say not.</p> <p>This was not the case of a record once completed according to law, and lost, or destroyed by accident.</p> <p>All the record there ever'was was in court.</p> <p>Butj treating it as if no record had been made or attempted, parol evidence was not admissible. The Bank of the U. S. v. Handridge, 12 Wheaton’s R. 64. 6 Cond. R. 454, before cited.</p> <p>But the authorities all concur in relation to cases of the character of the present, that a corporate body, assuming a power of this nature, must show strictly their authority, and that the power has been executed with all the formalities required by law, both as to the raising of the tax, and the mode of proof; and, if the law contemplates record evidence, none other can be received.</p> <p>Every principle of public policy demands, that no corporate body should be permitted to exercise so important a power as that of taxation and distress, without preserviug an exact record, open to inspection, of the . mode in which that power has been exercised ; that it may appear, — not from the frailty ol human recollection, one thing to-day, to-morrow another — but by evidence unchangeably the same, that courts and juries, and all concerned may see and read for themselves, whether the power has been legally or illegally executed. See Bates v. Hazeltine, l Vt. R. 84. Thayer v. Stearns, 1 Pick. R. 111. Searsburgh Turnpike Co. v. Cutler, 6 Vt. R. 322-3. Taylor v. Henry, 2 Pick. R. 403.</p> <p>Suppose a doubtful vote and no record. Would the court put it to the jury to decide, by witnesses upon the stand, upon the weight of evidence, whether a tax was voted or not ? One jury would find one way, another the other way; and it would stand established by the records of our courts, both vote ánd no vote, in the same transaction. The same tax would be legal and it would be illegal,accordingly as successive juries chanced to weigh the evidence, and would result in reducing the proceedings of all corporate bodies from a state of legal certainty into utter confusion.</p> <p>It has been heretofore urged, that the principles settled in Bates v. Hazeltine, 1 Vt. R. 81, are inapplicable to such a corporation as this. In what the distinction consists, we have not, as yet, been made fully to comprehend. The same principles are applied in the cases of town taxes. In the case above cited of Andover fy Medford Turnpike Co. v. Gould, 6 Mass. R. 44, it is said, they apply “to all taxes, public and private.” Dunham Sf Daniels v. Trustees of village of Rochester, 5 Cowen’s R. 462. See, also, Thames Manufacturing Co. v. Lathrop et al., 7 Conn. R. 550. Willard v. Killingworth Borough, 8 do. 254.</p> <p>But if the vote of the tax was proved by legal testimony, the tax was illegal. The case finds the fact, that part of the tax was raised for the purchase of stone posts for the repair of the fence around the common in said village. It will be urged, (and such is the fact,) that the vote is in pursuance of a general by-law of the corporation, requiring the common to be kept fenced. This was for a purpose, as we contend, wholly unauthorized by the act of incorporation.</p> <p>A tax, bad in part, is wholly illegal. Stetson v. Kemp-tan et al., 13 Mass. R. 272. Libby v. Burnham et al., 15 do. 144. Bangs v. Snow et al., 1 do. 185. Drew v. Davis et al., 10 Vt. R. 506.</p> <p>The public had an easement in this common, having been acquired by a use for forty years, and the easement is subject to no other limitation, but is co-extensive with that use, which is that of a public common or highway, in its most extensive signification. 1 Hawk. P. C. 366-7. State v. Trask, 6 Vt. R. 367.</p> <p>To inclose any portion of a public highway, whether a traveiled road, a public quay, or common, or an arm of the sea, even though the erection is, in many respects, an ornament, or beneficial to the public, is, nevertheless, in the eye of the law, a “public or common nuisance,” and is the ground of indictment at common law, and may be abated by any individual. Hart v. Mayor fyc. of Albany, 9 Wendell’s R. 590. Same case, 596. State v. Wilkinson, 2 Vt. R. 480. Pomeroy v. Mills, 3 do. 279. Same v. Same; 3, do. 410. Abbott v. Mills, 3 do. 521. State v. Gatlin, 3 do. 530.</p> <p>Had the legislature, in express terms, given to this corporation the power to fence and make such use of, as has been made of this common for a few years past, the constitutionality of such an act might be questionable, at least as against the owners of the fee. And if the owners of the fee might object successfully, it would seem to involve an absurdity, that a tax should be pronounced legal for the purpose of erecting a fence, which any one could .cause to be removed as a public nuisance, or as an encroachment upon his individual rights.</p> <p>“ The modern doctrine is, to consider corporations as hav- “ ing such powers as are specifically granted by the act of “ incorporation, or as are necessary for the purpose of car- “ rying into effect the powers expressly granted, and as not “ having any other.” 2 Kent’s Com. 239.</p> <p>The power claimed is not expressly granted by the act of incorporation. And, even if this court could take judicial knowledge of facts not found in the case, still no “ necessity” can be shown for its exercise. Whatever specious pretences of “necessity” may be set up, the fact is not to be disguised,' that it is an attempt to convert a long enjoyed public highway into a mowing lot for use, or, upon a construction most favorable to the right claimed, into a flower garden, or pleasure ground for the more particular benefit and use of the “ village of Woodstock.” There is nothing about it possessing a single feature of what is included in any definition, legal or otherwise, of the term “necessity.” It is a mere matter of ornament and of luxurious taste, intended to add to the beauty of the village, and to the value of the property immediately surrounding it — the expense to be drawn by tax-bill and warrant, by confiscation of property and by incarceration of the body, from those who have no interest in the improvement, (if it be one,) and to the exclusion of the long enjoyed rights of the public at large. Fencing the common was no more necessary to carry into effect the powers granted, than that the village horses should be kept shod with gold, by a tax upon the grand list.</p> <p>Rut, were it otherwise, this court cannot take judicial notice of any fact not found in the case. The fact that such “ necessity” existed, or any fact, from which it could be legally implied, does not appear in the case. The fact of “necessity” is necessary to be proved on trial; without it, no jurisdiction is shewn in the corporation over the subject matter of the vote. That the corporation has such jurisdiction the court cannot presume, but it must be shown by proof, or the vote and all proceedings under it are totally void. “ Nothing is to be intended in favor of jurisdiction.” Dunham if Daniels v. Trustees of village of Rochester, 5 Cowen’s R. 462; Bates v Hazeltine et aL, 1 Vt. R. 81.</p> <p>Both the by-law and the vote of the tax under it, are illegal in this, that they are repugnant to a general statute law of the state, prohibiting the erecting of any fence or other encroachment upon any part of the public highway. Comp. Stat. p. 433-4, <§>16 and 17.</p> <p>It is a well settled principle of law, that Pall by-laws must “ be subject to the laws of the realm, and subordinate to “ them ; therefore, if they are against the laws and statutes “ they are void.” 3 Salk. R. 76, citing Hob. 24 and 5 R. 63. Angelí & Ames on Corporations, p. 182. 1 Dane’s</p> <p>Abridgment, p. 457, ch. 22, art. 1. Town of Marietta v, Fearimg, Ohio Cond. R. 848.</p> <p>The defendants set up a by-law and vote of the corporation, as being paramount to the general statutes of the state.</p> <p>But if the fencing of the common were open to none of the objections of illegality, in other respects, but were to be regarded as the ordinary and legal expenditures for the repair or improvement of highways, we deny that this corporation is the board, in whom is reposed, by law, the management and control of that expenditure ; or that any power is conferred upon them to raise money by tax for any highway purposes whatever; or any power to lay out or discontinue roads, or widen or narrow streets, or in any manner to enlarge or circumscribe the public easement in highways. These powars are, by the general laws, lodged wtih the several towns and town officers, and their several duties minutely pointed out, and the mode established for laying, collecting, and expending taxes for those purposes. It is evident that the legislature contemplated no change of the law in this respect, within the territorial limits of the village, from the fact that no mention is made of such intent in the act of incorporation. Besides, section 9th of the act negatives any such intent, which enacts, “that the inhabitants and territory, in- “ eluded in the limits of said village shall belong to said town “ of Woodstock in the same manner as though this act had “ not passed.”</p> <p>If the corporation may raise money by tax for one highway purpose, they can for all, and thus the minority of the village be doubly taxed, first as inhabitants of the town, for all highway purposes, both in and out of the village, and then again for all purposes which, in any time of excitement, a majority of the village may “ deem it expedient” to vote.— Such powers cannot be transferred from the bodies in which, by the general laws, they are reposed, to inferior corporations, without an express enactment to that effect, „or a legislative intention manifest beyond all doubt. Beatty v. the Lessees of Knowler, 4 Peter’s R. 168. Parsons v. Goshenr 11 Pick. R. 396.</p> <p>No arguments drawn from convenience can confer upon the corporation powers not granted. If more powers are needed more must be asked for.</p> <p>If a tax may be raised for one purpose of ornament it may for any other; if for such a purpose, with more plausibility for the erection of buildings on the common for the use of the village, and by leaving foot paths -only at intervals, the whole common might, in process of time, be covered, in the discretion of a majority of the corporation, by erections, for ornament or for use, by a tax upon the grand list. To prevent cattle from strolling into the village, gates at each avenue into the village may be “deemed expedient,” and the public be subjected to the inconvenience of opening and closing' them at each time of passing. The propriety of the rule of law, that such powers must be expressly granted to a corporation, before they can be exercised, is apparent.</p> <p>The manifest intention of the legislature, in this act of incorporation, was to confer municipal powers, for the purpose of a more efficient and rigid police than could be exercised before over the streets and commons, to be exercised under, not in contravention of, the general laws upon the same subject. .</p> <p>The power to lay out, discontinue, widen, or narrow, or in any way alter or abridge the public easement in any street, highway, common or public landing place, we confidently assert, has not been exercised by any village, city, or other cor poration, except on examination it is found that the power, with all minuteness, and in détail, and by express words, is given in the act of incorporation, or by some public law. Instance as to the city of Albany. See 6 Johns. R. 84. Also the city of Boston, 16 Pick R. 89, 90. Wellington et at. petitioners, 16 Pick. R. 89, 90, 91.</p> <p>See, also, Commonwealth v. Tucker, 2 Pick. Rep. 44.— Kean v. Stetson, 5 do. 492. Commonwealth v. Charles-town, 1 Pick. R. 184-5-6. Sprague v. Birdsall. 2 Cow-en’s R. 420. 2 Kent’s Com. 240. Bangs v. Snow et al., I Mass. R.T85. Stetson v. Kempton et al., 13 do. 272.— Libby v. Burnham et al., 15 do. 144. Warren bridge case, (marginal note,) 11 Peters’ R. 421. Palmer v. Hicks, 6 Johns. R. 133. The People v. the Corporation of Albany, II Wendell’s R. 539. McMullen v. City Council of Charleston, 1 Bay’s R. 46. Zylstra v. Corporation of Charleston, 1 do. 387, 396.</p> <p>That the clause in the act of incorporation, enabling the corporation to make “by-laws and regulations” concerning the common, does not empower them to raise money by tax, for the purpose of erecting a fence or “railing” around if, see Williams v. Brace, 5 Conn. R. 190.</p> <p>1. The manner in which the evidence was offered by the defendants was proper. The parol evidence was offered in connection with the record evidence, in aid of the record, and not to contradict it. If the record was sufficient, the parol evidence only confirmed it. If the records were illegal or defective, yet they were properly received to establish such defect, and thereby lay the foundation of secondary evidence. '</p> <p>The evidence being offered in connection, if a part only was objectionable, the plaintiff should have designated such part, and moved the court to exclude it. But he objected to the whole. Elliot v. Piersol, 1 Peters1 U. S. Rep. 338. Beebe v. Bull, 12 Wendell’s R. 504.</p> <p>The records of the meeting, holden on the 2d of May, are objected to, for the reason that the clerk, pro tem. who recorded the same, was not legally appointed, not having been designated by the trustees, agreeably to the 8th section of the article of incorporation.</p> <p>This provision was not intended to apply to any merely occasional absence from the meeting.</p> <p>Besides, it was merely directory to the trustees, that in such case, they might appoint, not making it imperative.</p> <p>Neither does the act specify this as the only mode by which, in such case, a clerk might be appointed. The meet ting was legally warned, and the power of appointing a clerk pro tem. was incident to the meeting. The trustees made no such designation. Had the meeting, therefore, no power to make such appointment ?</p> <p>If such appointment was illegal, yet he was clerk de facto. He held the office by color of an election, and his doings while acting, colore officii, are, as to third persons, valid. 2 Strange’s R. 1090. Angelí & Ames on Corp. 158.</p> <p>The records are also objected to, because the clerk pro tem. was not sworn. We say that, within the spirit of the act, he was “ sworn to the faithful discharge of his duty.” He had but one duty to perform, to wit, to make a true record of the proceedings of that meeting. The time of taking the oath is not essential, so that he were sworn in the discharge of that duty. At the time of making the record, he was sworn to its truth. Here, the act of making the record and taking the oath were cotemporaneous. Nor is the form of the oath material. It could make no difference whether he swore faithfully to perform the duty, i. e. to make a true record, — or, at the time of making it, made oath that it was true. In either case, the object of the law is answered. The proceedings of road commissioners have been held valid, though they were not sworn until the time of making their return.</p> <p>Again, we submit, that as between these parties, the record of the clerk is to be holden sufficient, without inquiring into the legality of his appointment or his qualification. He was clerk de facto, holding the office by color of an election, and as between third persons, his doings are valid. The rule of law is well settled, that where third persons are concerned in the acts of public officers, it is sufficient that they acted as officers. To adopt a different rule, would lead to great injustice, and endless confusion. This was a public corporation. Angelí & Ames, on Corp. 8. 2 Kent’s Com. 275. Consequently the clerk was a public officer. We admit that where the officers are themselves justifying, the rule is different.’ People v. Collins, 7 Johns. R. 549. Wilcox v. Smith, 5 Wendell’s R. 233. Fowler v. Beebe, 9 Mass. R. 222. Buckman v. Buggies 15 Mass. R. 180. Stearns v. Thayer, 1 Pick. R. 113. Adams v. Jackson, 2 Aikens’ R. 147. 1 Equity Dig. 320. 4 U. S. Cond. R. 562. Dart. Col. Case.</p> <p>If the record is defective and void, the vote raising the tax may be properly shown by parol evidence. The rule is understood to be, that secondary evidence may be reeeived where the higher species does not exist or is not attainable by the party. Stearns v. Thayer, 1 Pick. R. 113, (above cited). Bank U. S. v. Dandridge et al. 6 Cond. U. S. R. 447, 9. 1 Starkie’s Ev. 102, 391-2, 1 Swift’s Dig. 770. Bassett v. Marshall, 9 Mass. R. 33 2.</p> <p>II. Was this tax raised for a legal purpose ?</p> <p>By a continued dedication of the common, in question, to the public, it has ceased to be private property and is subject to the control of the legislature, as in case of highways, public streams, harbors, &c.</p> <p>If it be said that the legislature had not the constitutional right to enclose the' common, by reason of its interference with the public rights, we say such power has never been questioned. It is the same power they have conferred upon select men or road commissioners, in shutting up highways, &c., or to city corporations in shutting up, opening or widening streets, &c., or the acts of the general government in erecting piers and breakwaters.</p> <p>Nor is this any obstruction of the rights of the public. The corporation are acting as agents of the public, and, by enclosing the common, they merely regulate the use, and render it more subservient to the convenience of the public, by directing on which part of the common teams and carriages shall pass. The same power has been constantly exercised in our cities and villages throughout the country. There can be no doubt, then, that the legislature could delegate this power to the corporation.</p> <p>Nor can there be any doubt that the legislature could constitute the village a public municipal corporation, dependent for its existence upon a vote of its members, conferring upon it such powers, and authorizing the majority to raise taxes to carry into effect its by-laws and regulations. This is strictly a public corporation, its officers public officers, its powers exercised for the public benefit.</p> <p>The legislature, by the act, intended to confer this power. The corporation were “ empowered to enact such by-laws and regulations as they should think proper, relating to the common and shade trees thereon.”</p> <p>What could be the authority given, if it did hot extend to the regulation of the common, by directing upon what part of it people should pass with teams and carriages, providing a road upon each side, and enclosing the trees upon .the central portion, by a fence, through which foot passengers could travel in any direction, and providing a foot walk-through the centre ?</p> <p>How could they better regulate the trees than by enclosing them with a fence ? If regulations of this description, were not contemplated, what were ?</p> <p>If it be said the act did not intend to authorize any obstruction upon the common, we answer, that the act expressly recognizes the right to continue the, trees thereon, as well as the fence. But the fence is no obstruction. It is a mere regulation of the common for public convenience. 2 Johns. Ch. R. 324. I Equity Dig. 320. Sec 3, 8. Pierce, v. Bertram., 1 Cowper’s R. 269. Nightingale, Petitioner, 31 Pick. R. 168. Vanderbilt v. Adams, 7 Cowen’s R. 349. 352. Coots v. Mayor of New York, 7 do. 585.</p> <p>The general power to enact by-laws and regulations is incident to all corporations, though, if not specially granted, the exercise of such power would be restricted to the general object of the grant.</p> <p>Here such power is specially conferred, and certain objects particularly designated. It is believed, that any bylaw or regulation, in respect to these objects, might, within the discretion of the corporation, be legally enacted, if not inconsistent with the provisions of the charter, or contrary to the general laws.</p>

<p>In debt on a judgment of the court of another state, where the record set up the defendant as then resident in that state, and showed an attachment of land there, and the officer’s return showed a copy of the process left at the last and usual place of abode of the defendant in that state, it is prima facie sufficient evidence that the co'urthad jurisdiction of the cause and of the defendant.</p> <p>In such action, it is admissible for the defendant to plead any plea which will show that the court had not jurisdiction to render the judgment.</p>

This was an action of assumpsit, in which the plaintiff declared as follows:— For that, heretofore, to wit, at Bridgewater aforesaid, on the 2d day of February, 1837, the defendant, in consideration that the plaintiff did, then and there, agree, that he, the plaintiff, would carry on his, the defendant’s grist mill, in said Bridgewater, for the term of one year from the first day of April, then next, and deliver to the defendant one half of the tolls, during said term, he,…

This was a scire facias, originally brought to this court, alleging that the defendants’ turnpike had been much neglected and suffered to be out of repair, and citing the defendants to show cause why their charter should not be forfeited.— The defendants pleaded not guilty, and the issue upon that plea was sent to the county court for trial.

<p>Machinery iu a woolen factovy is personal property. If it is ed, either with or without the real estate, and left in the possession of the mortgagor, it is subject to attachment as his property.</p> <p>The entering upon real estate and severing a part therefrom and carrying it away, by one continuous act, can be recovered for, by the tenant, only by an action of trespass, quare clausum fregit.</p>

This was an appeal from an order made by two justices, for the removal of Hannah Buckland from the town of Royal-ton to the town of West-Fairlee. Plea, Unduly removed, which by agreement of parties was joined to the court.

This was an appeal from an order of two justices for the removal of Reuben Paine and his wife, Diodama Paine, from the town of Hartland to the town of Pomfret. The paupers, having no legal settlement in the town of Hartland, had come there to reside, and were chargeable to said town. A warrant was issued to apprehend said paupers and bring them before said justices for examination.

<p>This was an action of assumpsit upon the following guaranty, signed by the defendant.</p> <p>“Messrs. Train & Co. .</p> <p>“ If Mr. Agustus Jones shall make a contract for four “ or five hundred dollars worth of hides, I will stand res- “ ponsible for the fulfilment of any contract said Augustus “ Jones, or his agent, shall make.”</p> <p>The hides were obtained on the credit of the guaranty, of which the defendant was immediately apprized, but no express notice of that fact was proved to have been given by the plaintiffs to the defendant.</p> <p>The county court instructed the jury, that, to entitle the plaintiffs to recover, they were not bound to show that express notice had been given by them to the defendant of the delivery of the hides upon the guaranty, or that the principal debtor had not paid for them. The jury returned a verdict for the plaintiffs, and the defendant excepted.</p> <p>cited,</p> <p>Cremer v. Higginson, 1 Mason’s It. 340. Babcock v. Bryant, 12 Pick. R. 134-5. Rapelye v. Bailey, 3 Conn. R. 438 and 442. Douglass et al. v. Reynolds et al. 7 Peters’ R. 126-7. Lee v. Dick, 10 Peters.’ R. 494-5-6. Mann v. Ecksford’s Executors, 15 Wend. R. 508. 1 Swift’s Dig. p. 698 and 700.</p> <p>cited</p> <p>Babcock v. Bryant, 12 Pick. R. 133. Norton v. Eastman, 4 Greerdeaf’s R. 521. Duval et al. v. Trask, 12 Mass. R. 154. Lee v. Dick et al. 10 Peter’s. R. 482.</p>

<p>This was an action of debt commenced on a bond dated the 1st day of December, 1829, and given to the plaintiff, as sheriff of the county of Windsor, conditioned to save.harmless the plaintiff from all damages, risks, liabilities and causes of liability, in consequence of any neglect, misconduct, malfeasance or misfeasance, in matters pertaining to the office of sheriff, of one Ebenezer Parkhurst Jr., who had been appointed to the office of deputy sheriff for the year then ensuing, by the said Fletcher, sheriff as aforesaid, and had accepted said appointment, and who also had signed and executed the said bond ; — with proper breaches assigned to the said condition.</p> <p>Three of the defendants, viz, Samuel Austin Jr. Solo. Downer and Jacob Fox, pleaded the general issue of non est factum to the said action. The other defendants made no answer to the said declaration.</p> <p>The issue was closed to the jury, and on the trial in the county court the plaintiff proved the execution of the bond, and it was read to the jury.</p> <p>The bond commenced as follows :</p> <p>“ Know all men by these presents, that we, Ebenezer Parkhurst Jr., Jacob Fox, Mills May, Samuel Austin Jr. Alexander Ralston, Chester Baxter, Solomon Downer and George W. Rice, all of,” &c., and purported to have been signed bv all the persons so named.</p> <p>The defendants, who had pleaded as aforesaid, offered testimony tending to prove that, when the bond was signed by the said S.amuel Austin Jr., and Mills May, and Ebenezer-Parkhurst Jr., the said Austin and May delivered the same to the said Ebenezer Parkhurst Jr. and directed him not to deliver it to the plaintiff till it was also executed by al] the other persons named in the body of the said bond, and in case it should not be so executed, to return the same to them, the said Austin and May.</p> <p>The said defendants offered evidence further tending to prove that the bond was not so executed by the other persons named in the body of said bond, until after the expiration of the year for which the said Parkhurst had been appointed to the office of deputy sheriff, and that the said bond, before being executed by all the persons mentioned in the body thereof, had been, by the said Parkhurst, delivered to the plaintiff, and by him put in suit; but there was no evidence offered or afterwards given, tending to show that the plaintiff was informed by the said Parkhurst that the said bond was delivered to him with the restrictions before mentioned.</p> <p>To this testimony, thus offered, the plaintiff objected, but the objection was overruled by the court, and the evidence was admitted.</p> <p>The plaintiff then requested the court to instruct the jury that, notwithstanding the admission of the said evidence, and although they should find the facts stated were proved, yet the plaintiff was entitled to recover on the bond against the defendants who signed the same and delivered it to the said Parkhurst with the limitations before stated, as well as against the other signers. But the court refused so to instruct the jury, but did instruct them that if they should find that the bond was delivered to the said Parkhurst by the defendants, who had then signed the same, with the restrictions and limitations before mentioned, and was not executed by the other signers till the expiration of the year for which the said Parkhurst had been appointed a deputy sheriff, they should return a verdict for the defendants. A verdict was accordingly found for the defendants, and the plaintiff excepted.</p> <p>Marsh 8f Swan and A. Tracy, for plaintiff, cited Shep„ Touch. 69, 59. Perkins, sec. 142, 143, 144, 137, 138.— Beekman v. Frost, 18 Johns. R. 562-3. Butler v. Baker’s case, 3 Co. R. 35, b. Graham v. Graham. 1 Ves. Jr.’s R. 272. Match v. Hatch, 9 Mass. II. 307. Buggies v. Lawson, 13 Johns. R. 285. Wheelwright v. Wheelwright, 2 Mass. R. 452. Jackson v. Rowland, 6 Wend. R. 666.</p> <p>cited 17 Mass. R. 591. 2 Pick. R. 24. 1 Barn. & Cress. 682.— Chip, on Con. 23. Pothier on Ob. No 11. 2 Stark. Ev. 476, note, h. 1 Saund. R. 291, note, b. 3 Vt. R. 82, 88. 1 Swift’s Dig. 178. 6 Vt. R. 532. ~4 Johns. R. 230. 12 Mass. R. 456. 6 do. 219. 4 Kent’s Com. 454. 2 Black. Com. 307. 9 Mass. R. 307. 10 do. 456.</p>

<p>When an auditor finds a fact upon insufficient evidence, the court should • again refer the account to an auditor.</p> <p>Where a party, in an action on book, testified, that a receipt was given for money charged, and, at the same time, testified to the loss of the receipt, if other evidence is given of the loss he may be inquired of as to its-contents. And if the money was a proper subject of charge on book, hd may recover, notwithstanding the receipt is not produced. Such receipt is similar to an original book or entry which is lost.</p>

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

This was an action of book account, brought into the county court by appeal. Judgment to account having been rendered, an auditor was appointed, who reported, that the plaintiff presented an account, as iollows : “ September, 1836. Daniel Woods, Dr. To cash, . . . 11,00.” In relation to which, the auditor found the following facts: 1.

<p>Assumpsit, in the common form, on a promissory note. Plea, general issue.</p> <p>Upon the trial in the county court, the plaintiffs offered testimony tending to prove, that the note described in the declaration had been lost since the commencement of this suit, to which the defendant objected, upon the ground that there was no count .upon a lost note. The court overruled the objection and admitted the evidence.</p> <p>The plaintiffs then proved that on the 2d of January, ] 832, the date of plaintiff’s writ, the note in question was in the hands of their attorney, J. Col lamer; that afterwards, and after a suit in chancery had been commenced, the said Col-lamer, as he supposed, handed over all the papers in his hands, relative to this and the chancery suit,to Denison Smith, but had no particular recollection of seeing the note at that time; that neither L. B. Peck, then a partner of said Smith, nor the administrator of the estate ef said Smith, nor Alvan Carter, one of the commissioners of claims against said Smith’s estate, had ever seen the note while examining the said Smith’s papers for the purpose of finding it. The plaintiffs then offered testimony to prove the execution and contents of the note, to which the defendant objected, for the cause that the plaintiffs had not introduced sufficient evidence as to the loss of the note, to authorize the introduction of secondary evidence of its contents, but the court overruled the objection and admitted the testimony.</p> <p>Here the plaintiffs rested.</p> <p>The defendant then offered testimony to prove that, if he ever signed the note, he signed it, with other notes, at the request of Joseph Edson, as co-surety with said Edson, Asa Story and Samuel Ford, for one William Ford; that said William, at the same time, executed to said Story & Edson a mortgage of real estate worth $20,000 more than the amount of the notes so given to the plaintiffs, to indemnify the said Story and Edson for signing said notes to the plaintiffs ; that said William afterwards mortgaged the same land to Amplius Blake to secure $9,500, which said William owed to said Blake, and that said Blake was apprised of the prior mortgage of Story & Edson; that said William, at the request of said Blake, afterwards executed a mortgage to said Blake of other lands, viz, said Williams’ home farm, to secure $3,000, part of said $9,500, the said Blake agreeing, at the time of receiving the last mortgage, to discharge the same whenever the said William should pay the said notes to the plaintiffs ; that soon afterwards the said William died insolvent; that said Blake afterwards paid the note in suit to the plaintiffs, having previously purchased the equity of redemption in the premises mortgaged to Story & Edson, and having, also, received the whole sum for which the home farm of said William was mortgaged to said Blake, and the interest thereon. To the admission of this testimony the plaintiffs objected, for the reason, among others, that the same matters had been adjudicated in a suit in chancery, in which Samuel Ford and John Moulton were orators, and the plaintiffs, Asa Story, the administrator of Joseph Edson, and Amplius Blake were defendants; and the plaintiffs offered the records of said chancery suit and one of the solicitors for the defendants in that suit, to show what points were litigated and decided therein. It appeared from said record that no decree was ever drawn up or signed by the chancellors. To the admission of the last mentioned testimony the defendant objected, but the court overruled the objection and admitted the testimony, and rejected the testimony offered by the defendant.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant excepted.</p> <p>1. The evidence to show the loss of the note was not the best evidence the nature of the case admitted.</p> <p>The case is what the plaintiffs chose to make it. They might have declared upon a lost note; the evidence offered might then have come within the rule that the evidence was the best which that case would admit of. They have dedared upon a note in possession. The defendant denies the execution of it and has a right to its production on trial. 1 ^il- Ev. 348, 4 East’s R. 585.</p> <p>No good reason can be assigned why a contract under seal which has been lost, must be declared on as lost, in order to let in parol proof which does not equally apply to promissory notes. The loss being stated in the declaration, is said to be an excuse for a profert.</p> <p>But the note is as really the foundation of the suit as the bond is, and its production is equally necessary. Hutchins &f Pickett v. Olcott, 4 Vt. R. 549. Edgell v. Stanford, 6 Yt. R.551.</p> <p>The practice in this state and in England, is, to declare on lost notes as lost. See Forms and Precedents, and 2 Stark. Ev. 226, in notes.</p> <p>In Pierce v. Burrage, decided in Orange county in 1835, Judge Prentiss ruled, that parol evidence could not be admitted, in such case, but gave plaintiff leave to amend by ading a count for a lost note, and continued the case.</p> <p>II. The evidence, introduced to .show the loss of the note, was altogether too slight to justify the admission of parol proof of its contents. 2 Stark. Ev. 226.</p> <p>III. The court below erred in rejecting the testimony offered by the defendant. This court has once decided that the facts offered to bo proved constituted a good defence, and because the evidence was rejected, reversed a former judgment of the county court. As to the same question having been decided in a chancery suit, the same objection was urged on a former trial in the county court, and yet this court decided that the county court erred in excluding the testimony.</p> <p>1. The parol evidence offered in the court below, to show that the note declared upon had been lost since the commencement of the suit, was properly admitted. Brown et al. v. Messiter, 3 Maul. & Sel. R. 281.- Chamberlin v. Gorham, 20 Johns. R. 144. Kensington v. English, 8 East’s R. 273. Jones v. Fales, 5 Mass. R. 101. Jackson v. Frier, 16 Johns. R. 193. Peak’s Ev. 40, 98, 154, n. Phil. Ev. 356, n. b. 1 Swift’s Dig. 758-9. Page v. Page, 15 Pick. R. 368, 373-4. 10 Johns. R. 104. 3 Cowen’s R. 303.</p> <p>The declaration, it is true, contains no count on a lost note, and the reason is apparent. The note was in the hands of the attorney when he made the writ, and has since been lost.</p> <p>II. The evidence offered by the defendant in the court below was properly excluded.</p> <p>1. Because it constituted no legal defence to the action, and</p> <p>2. Because the same matter had been set up in a bill in chancery by the defendant, praying for an injunction against the further prosecution of this suit, and adjudged against the defendant at the March term of this' court in 1837.</p> <p>We insist, in the first place, that the evidence offered constituted no defence to the action, and for that reason it was properly excluded. The principle, that payment by one of two joint debtors discharges both, is undoubtedly correct, but it has no application to this case. Blake was never a joint debtor with this defendant on the note in suit, and, for that reason, his payment of it to the plaintiffs cannot be treated as a payment by the defendant. This case does not come within the rule laid down in the case of Hammatt v. Wyman et al. 9 Mass. R. 138. Brackett v. Winslow et al. 17 Mass. R. 153. Peabody v. Peters, 3 Pick. R. 1. Stearns v. Moore, 7 Green. R. 36, in relation to payments made by one of two joint debtors.</p> <p>Blake, then, having paid the note and taken it into his own possession to protect his own interests, can prosecute the suit upon it in the name of the payees for his own benefit. The defendant has paid nothing upon the note, and upon no principle can he avail himself of Blake’s right as a defence to this suit. Norton v, Soule, 2 Green. R. 341. Allen v. Holden, 9 Mass. R. 133. Silver Lake Bank v. North, 4 Johns. Ch. R. 370.</p> <p>In the second place, we maintain that the parol evidence introduced in the county court to show what was adjudicated in the chancery suit was properly admitted. 6 Term R. 607. Hutchin v. Campbell, 2 Black. R.827. 3 Wils. R. 304.</p> <p>In the third place, we insist that the adjudication in chancery, in 1837, of the same matters offered in defence of this acti°n, is conclusive upon the defendant, and he cannot set it up as a defence here. Gelston et al. v. Hoyt, 3 Wheat, ^46, 315. Hopkins v. Lee, 6 Wheat. R. 109. Harvey v. Richards, 2 Gallis’ R. 216. Hughes v. Blake, 1 Mason’s R, 515. Jackson v. Hoffman, 9 Cowen’s R. 271. Etheridge v. Osborn, 12'Wend. R. 399. Wright v. Butler, 6 Wend. R. 284. Gardner v. Buckle, 3 Cowen’s R. 120.— Jackson v. Wood, 3 Wend. R. 27. Wood v. Jackson, 8 Wend. R. 9. Bradshaw v. Heath, 13 Wend. R. 419. MiZamsv. Barnes, 17 Mass. R. 375. Betts v. Starr, 5 Conn. R. 550. Dennison v. Hyde, 6 Conn. R. 508. -EToyZ v. Gelston et ah 13 Johns. Rep. 141: Burt v. Sternberg, 4 Cowen’s R. 559. Emery v. Goodwin, 13 Maine Reports 14. 1 Stark. Ev. 191 to 205.</p> <p>It is not essential that either the parties, or the form of action, should be precisely the same. If they are substantially the same the adjudication will be conclusive upon the parties. 1 Stark. Ev. 194. Buller’sN.P. 245. Swift’s Ev. 10 to 13. Case v. Reeve, 14 Johns. R. 82. Whately v. Menheim el al. 2 Esp. R. 608. Thatcher v. Yoimg et al. 3 Green. R. 67.</p>

This was an action of assumpsit for money had and received. — Plea, General issue. On the trial of this case in the county court, the plaintiff gave evidence tending to prove, that in the summer of 1834, he being then nineteen years of age, his father, Joseph Tillotson, told him that he might go to work and have his wages. He labored for others that summer, and took his pay.

This was a trustee process. The writ was served on the 22d of March, 1837. Upon the trial in the county court, the following facts were proved from Hale’s disclosure, and by other evidence, viz.; that Hale executed to Carlton a note for one hundred sixty-two dollars and fifty cents, dated February 24, 1837, payable to Carlton or order, in the month of June, 1837.

<p>The release of a doubtful right is a sufficient consideration to support a promise. ></p> <p>If F. executes to H. his note with the understanding that it is to be indorsed to B., knowing all the facts relating to the matter in settlement, for which the note is given, the note is not void as having been obtained by fraud, though both H. and B. may have expressed to P. an opinion that was unfounded as to his rights growing out of those facts.”</p>

<p>It is no objection to a recovery, in an action on book for money received to be accounted for, that the party took a receipt for the money.</p>

This was an action of book account. Judgment to account was rendered in the county court and an auditor appointed, who reported the accounts of the parties and the facts found by him relating to the items in dispute. The plaintiff’s account commenced in May, 1835, a.nd ended in June 1836, and was principally for boots and shoes.

This was an action on the case, brought upon the second section of an act entitled “ an act in addition to and amendment of an act defining what shall be deemed and adjudged a legal settlement, &c.,” passed November 4th, 1817, (statute 382,) to recover damages against the defendant which accrued to the plaintiffs for the support of a family of paupers, having no settlement in the town of Calais, who were, as the plaintiffs averred, transported into said town by the…

Ejectment, to recover certain land in Worcester. Judgment having been rendered’in favor of the plaintiff, by the county court, the defendant filed a motion, setting forth, that this action was founded upon a quit claim deed from the defendant to the plaintiff of the land in question, dated Oct. 5, 1835, given to secure to the plaintiff a debt due him, from the defendant: — that at the time of the execution of said deed, the plaintiff executed and delivered to the-defendant a…

Assumpsit. Plea, non assumpsit. On the - trial in the county court, the plaintiff offered in evidence the deposition of one Hawley, and the only question raised in this case, is, whether the deposition was properly admitted. The defendants objected to its admission ;— 1. Because the envelope, and the paper upon which the caption was written, were separate papers. 2.

Action of book account. The defendant pleaded, in abatement, that the plaintiffs’ writ in this action was signed, and the recognizance to the defendant was taken, by Joshua Y. Vail, clerk of the court, who is a member of said insurance company, and is interested in this suit. To which the plaintiff demurred, generally, and the defen-dant joined in demurrer. „ The county court decided that the plea was insufficient; to which the defendant excepted.

This was an action of book account. Judgment to account having been rendered by the county court, an auditor was appointed, who reported the accounts of the parties.

This was an action of book account. Judgment to account, having been rendered by the-county court, an auditor was appointed, who afterwards reported to said court, that the plaintiff’s account consisted of the following items, viz.;— January 17, 1838. To poultry, price agreed $26,45 “ “ » 527¿'lbs. of pork at 7 cents per pound 36,92 $63,37 Cr. January, 17, 1838. By cash $58,37 5,00 And that the defendant did not present any account.

<p>Trespass for breaking and entering plaintiff’s close, being lot No. 62, in the first division of lands in Warren, and cutting timber thereon.</p> <p>Plea, not guilty, with notice of special matter. Issue to the country.</p> <p>Upon the trial in the county court, the plaintiff gave in evidence a deed of the lot in question from Smith, Booth & Ufford to the plaintiff, dated June 10th, 1836, and recorded in September, 1836.</p> <p>The plaintiff also introduced testimony tending to prove that in July, 1837,. he commenced clearing ten acres of said lot; that in the summer of that year he chopped down .the trees growing on about three acres- of the land, and that defendant, in January, 1838, entered upon the lot and cut down and carried away a spruce tree.</p> <p>The defendant, on his part, gave in evidence a deed of the lot in question, together with two other lots of land lying in Warren, from one Daniel Spencer to Araunah Spear, dated July 18th, 1836, and recorded in August, 1836, and introduced testimony tending to prove that Spear, immediately after the recording of his deed and in the same month, commenced chopping on said lot, and cut down the timber growing on about one acre of land; that in August or September, 1837, he caused the acre last mentioned to be cleared, and that the defendant entered upon the lot, by the direction of Spear, and cut the spruce tree before mentioned.</p> <p>The plaintiff then introduced testimony tending to prove that the land cleared by Spear was not a part of lot No. 62.</p> <p>It was conceded that the tree cut by the defendant, was not upon that portion of the lot enclosed by, or in the actual possession of Spear.</p> <p>The county court instructed the jury, that, if the plaintiff held a deed of lot No. 62, made an entry upon, and took possession of the lot, in the manner attempted to be proved, and the defendant entered thereon and cut the tree in the manner complained of, the plaintiff would be entitled to recover against the defendant, if he was a mer§ stranger, and did not act by the direction or consent of Spear, although, injjta, Spear made the first entry on the lot.</p> <p>The jury returned their verdict for the plaintiff. The de™ fendant excepted to the charge of the court.</p> <p>Other questions were presented in the bill of exceptions, but, as they were not decided by this court, they are here omitted.</p> <p>We insist that the court erred in instructing the jury that “the plaintiff would be entitled to recover against the defendant if he was a mere stranger, and did not act by the direction or consent of Spear, although, in fact, Spear made the first entry on the lot.” Our first objection to this charge arises from the fact, that the case does not show any evidence to have been given, on the part of the plaintiff, to controvert the fact that the defendant entered by Spear’s direction, or tending to show that the parties were at issue on this point. Birney v. Martin, 3 Vt. R. 236. Wetherbee v. Foster, 5 id. 136.</p> <p>In the second place, if Spear had the prior possession of the lot, under his deed, the plaintiff was a trespasser, and he ought not to be permitted to sustain this action, inasmuch as the defendant may be made liable to Spear for the same act.</p>

This was an appeal from the decision of commissioners appointed, by the probate court, to receive, examine and adjust all claims against the estate of Sampson Gale, deceased, and those exhibited in offset thereto. The plaintiff in his declaration, joined counts in assumpsit and on book account. The defendant moved the county court to dismiss the appeal, insisting that assumpsit and book account could not be joined. And, also, demurred to the declaration for the same cause.

This was an action of trespass on the case for damages occasioned to plaintiff’s horses, wagon and harness, through the insufficiency of the defendants’ road in Royalton. The plaintiff, in his declaration, averred, that the defendants laid out, constructed and opened their road in October, 1803, agreeably to their charter, and that the injury happened “by reason of the road being out of repair, and the badness thereof.” Plea, general issue. Issue joined to the country.

This was an action on the case, for slanderous words. The words alleged to have been spoken by the defendant, of and concerning the plaintiff, were as follows ;• — ■ “ That is a lie.” “ I do intend to charge him (the plaintiff) with telling a lie under oath,” which words were alleged to have been spoken with reference to testimony which the plaintiff was giving, at the time of such speaking, in a court of justice, in the trial of a cause there pending, and upon a material…

This was a complaint for bastardy, entered in the county court at the April term, 1838, and continued from term to term, to the April term, 1839.

This was an action of covenant broken, brought upon an indenture, made by and between the plaintiff and defendant, on the 23d day of February, 1838, wherein the plaintiff covenanted, that he would “ convey to the said Samuel, by a deed of conveyance, a tract of land in Plainfield,” &c., if the defendant would pay to the plaintiff, $650,00, on or before the first day of March, 1838, and if the plaintiff should neglect so to convey the land, as aforesaid, he would pay the…

This was an action of book account. Judgment to account having been rendered in the county court, an auditor was appointed, who afterwards reported, that the plaintiff’s account was for one month and twenty one days’ work, at ten dollars per month, in relation to which the auditor found the following tacts : The plaintiff commenced working for the defendant on the\ 19th of September, 1837, under a contract to work four months, at $10 per month, and to receive no pay until he…

This was an action of trespass for three pine logs. Plea, general issue, and trial by jury. ' Upon the trial in the county court, the plaintiff proved that he cut the logs in question on lot No. 8, in the division of the town of Worcester, drawn to the right of William Ashbridge, and after he had drawn part of them to the mill the defendant took and converted them to his own use.

Assumpsit, on a promissory note, with a count for money had and received. Plea, non assumpsit. Issue to the country. Upon the trial in the county court, the plaintiff produced and proved the execution of the note, and there rested. The defendant introduced testimony tending to show, that the plaintiff left the note in suit for collection with an attorney, who made a writ upon it, and gave it toan officer to serve.

Ejectment for a third of an acre of land in Marshfield. Plea, not guilty, and trial by jury.

This was an action of trespass, for one hog. — Plea, general issue. The plaintiff gave in evidence, without objection, a bill of sale to the plaiutiffs of the hog in question, signed by the defendant.

This was a writ of audita querela, to set aside an execution, on which neither body nor property had been taken. In the county court, a plea in abatement was interposed, for the insufficiency of the recognizance. This plea was overruled by the county court, and the defendant excepted; and after judgment in chief, for the plaintiff, the cause was passed to this court on said exception.

This was an action upon a promissory note. Plea, general issue, and trial by jury. The execution of the note was admitted. The defendant gave evidence tending to show that the note in suit was given under the following circumstances:— One Thomas Lamphier, some time during the preceding winter, gave in payment to the plaintiff two $5 counterfeit bills, knowing them to be such at the time.

This was an action of trover, for one cow. Plea, general issue, and trial by jury. Upon the trial in the county court, it was admitted that on the 14th of November, 1837, the cow in question was the property of one Royal Bean, and that, on that day he executed to the plaintiff a bill of sale which is referred to as part of this case.

<p>When an action on book is commenced, returnable before a justice of the peace, and the defendant in such action also commences an action on book against the plaintiff, returnable before another justice, at a day earlier than the return day of the writ in the first action, he may recover his cost. The statute, in addition to the justice act, passed Nov. 16,1819, does not apply to such action.</p>

This was an action of trespass on the freehold. The defendant pleaded the general issue, and also a license from the plaintiff, and a right of way over the plaintiff’s land. Issues were joined to the jury.

This was an action of assumpsit, on a promissory note. Judgment was rendered for the plaintifl by default. The note was executed Oct. 12, 1833, for $90,12, and interest. The defendant in court applied for the benefit of the poor, debtor’s oath, under the act of the 8th Nov. 1830. It appeared that the debt for which the note was given, existed previous to the passing of the act referred to.

This was an action of assumpsit upon a promissory note, in which the plaintiff declared as follows, to wit: In a plea of the case for that on the 4th day of February, 1834, the defendants, by their note in writing for value received, jointly and severally promised to pay one Franklin Hunter, or order, eighty two dollars and fifty cents, in eighteen months from the date thereof, with interest annually, said note bearing date of said 4th day of February, which said Hunter,…

This was an action of tréspass, for taking the plaintiff’s heifer. The taking was admitted. The defendant attempted to justify the taking, as collector of school district No. 2, in the town of Ryegate. For this purpose, he gave in evidence the records of said school district.

This was an action of assumpsit. The declaration was as follows;— “In a plea of the case, for that whereas, heretofore, to wit, on the 26th day of January, A. D. 1836, at said Groton, one Ephraim Low, entered into a contract with Moses Plummér, John Bayley, 2d. Nathaniel Perkins, Isaac N. Hall and Horatio W. Heath, to build, erect and finish a meeting house in said Groton, for the sum of one thousand and fifty dollars, to be by them paid therefor, and which said contract the…

<p>In the case of a note payable in specific articles, at a fixed time, at such place as the payee shall elect, if no election is made by him, in reasonable time to enable the maker to pay the note before the time of payment elapses, the maker may, at such place as he shall elect, tender payment, and notify the payee of such tender.</p> <p>In such case, the election of a place of payment, by the payee, is not a condition precedent, but a mere privilege, which, if not exercised in a reasonable time, is waived.</p>

Action of the case, wherein the plaintiff declared as follows : “ For that the defendant, at said Sheffield, on the six- “ teenth day of April, 1839, fraudulently and deceitfully “ willing and contriving to get, on credit, a large sum of (i money, into his, the defendant’s hands, and then con- “ ceal and lock up the same from the plaintiff, under some “ false and fraudulent pretence, and thereby cheat the “ plaintiff of his honest dues, did, then and there, in pros- “…

Trespass de bonis asportatis. Plea, — Not guilty, and notice that the defendants justified the taking as a distress for taxes due from the plaintiff as a rateable'inhabitant of school district No. 5, in Waterford, one of the defendants being collector of said district, and the other acting as his assistant. The case was tried in the county court by a jury, and under the direction of that court, the jury returned a verdict for the defendants.

This was an action of ejectment for a lot of land in the town of Barnet. Plea, general issue, aud trial by jury. Upon the trial in the county court, it was admitted, that the title of the land in dispute was in Andrew Lindsay, previous to the 9th of January, 1838, and that the defendant was in possession of it at the commencement of this suit.

<p>The acts of the wife are binding upon the husband, so far as she acts as his agent, and any evidence, tending to prove such agency, is admissible.</p> <p>If money received by an agent is paid over to his principal, before notice to the agent to retain it, or action brought, the agent is not liable.</p> <p>If a father puts his minor son to live with a third person till he arrives at a given age, under a contract that if he takes him away before the son arrives at such age, he shall pay such person such sum as indifferent persons should judge right; and the mother, before such age, takes away the son, paying such sum as was thought right, the father cannot repudiate the act of the wife, and recover back the money paid by her without returning the boy to such person and restoring him to his rights.</p>

Ejectment, to recover fifty acres of land in the town of Lyndon'. Pica, not. guilty, and trial by jury. Upon the trial in the county court the plaintiffs gave in evidence a copy of an act passed October 27, 1795, entitled “ An act establishing the county grammar school of the county of Caledonia, in the town of Peacham.’^..

<p>This was an action of ejectment for eight and one half acres of land in Derby.</p> <p>Plea, general issue, and trial by jury.</p> <p>Upon the trial in the county court, the plaintiff claimed-title to the land by virtue of an attachment on mesne process anti a levy of an execution in his favor against Moses Norris, Mesheck Norris, and David Norris, and, for the purpose of showing the source from which the defendant claimed title, gave in evidence a copy of a deed from said Moses Norris to the defendant, dated 13th of March, 1830, conveying the land in question, which was admitted without objection.— The plaintiff also proved the defendant to have been in possession of the land at the time of the service of the original writ in this action, and offered in evidence the copy of the original writ, and the officer’s return thereon in his favor, against Moses Norris, Mesheck Norris and David Norris, and of the record of a judgment in that suit, rendered against said defendants, by default, and without any other notice, except the publication of the usual order, in cases of the defendant being out of the state.</p> <p>The defendant objected to this evidence.</p> <p>It appeared by the testimony before the court, that after the judgment and levy, and the first trial in this action, the plaintiff’s attorney, withoutleave of court, but in an open and public manner, and in presence of the officer serving the writ, altered the word defendant to defendants, in the return of the officer on said writ, and at the end of the original return added, “the defendants having removed without this state, and having no known agent or attorney within the same,” or words to that import. The court decided that this alteration, in the manner in which it was made, did not avoid the process or judgment. It appeared, further, on inspection of the writ and return aforesaid, that the writ issued in the usual form of an attachment against the three defendants, above named, and that, in the writ, they were described as residing at Moira, in the state of New York. The officer’s return on the writ was, that be served the same by attaching certain real estate in Derby, described in the return as the estate of the “defendant,” (in the singular number,) and without specifying which of the defendants; and that he left a copy of the attachment, -Sic., in usual form, at the town clerk’s office, in Derby. The defendants contended that this return showed no legal service upon eithe r of the defendants, and that the after proceedings were w holly void, for the reason that it should appear, by the o fficer’s return, to which defendant this estate was claimed to have belonged, or whether to all or only one, and also, that it should appear by said return that said defendant or defers dants, whichever the service was attempted to be made upon, resided without the state, and had no known agent or attorney therein, at the time of such service, and that, then, if the officer intended, or would, make service upon all the defendants, he must leave at said town clerk’s office, in addition to the first copy, one other copy for each defendant. But the court overruled the objection, and admitted the evidence.</p> <p>The plaintiff then offered in evidence a copy of an execution issued on said judgment, and a levy of the same on the lands in question, subsequent to defendant’s deed,'as the estate of said Moses Norris. To the admission of this evidence, the defendant objected, for the reason that the levy in question was defective and insufficient to pass Moses Norris’ title to the defendants;—</p> <p>1. That the .description of the estate was indefinite and uncertain, both as to the land intended and as to Moses Norris’ interest therein, which description is as follows: “a certain piece of land, with the appurtenances thereof, situated and being in Derby, in said county of Orleans, containing eight and one half acres, be the same more or less, and bounded and described as follows, viz. beginning at the north east corner of the second division lot number 4, drawn to the original right of Josiah Strong, and lying in great lot number 63 ; thence running south, on the east line of said lot No. 4, forty seven rods ; thence running west, parallel with the said lot line, 34 rods ; thence north parallel with the said lot line 47 rods; thence east 34 rods to the bound begun at, (excepting about one acre and a half, sold by Zera Barber to Abel Wilder, and now owned by Harry Perkins,) the proper estate of Moses Norris, one of the within named debtors in fee.”</p> <p>2. That the officer applied to a justice to appoint appraisers, when it did not sufficiently appear that the debtor and creditor had had an opportunity to choose appraisers, and had failed so to do, and that no sufficient reason was given for not applying to them. The part of the levy here objected to follows the description of the land, and is in the following words; — “and the said parties, their agents and attorneys, neglecting to choose appraisers to appraise the estate aforesaid, I applied to Portus Baxter Esq, a justice of the peace,” &c. The court overruled the objections and admitted the evidence.</p> <p>The plaintiff then introduced such evidence as, under the charge of the court, enabled him to avoid the defendant’s deed for fraud, and to recover a verdict.</p> <p>In the course of the trial, it appeared that the plaintiff had had his permanent residence at Stanstead, Lower Canada, and was in business and had been a house-holder there for some years previous to the commencement of this action, but how long, did not appear. There was no testimony tending to show that the plaintiff had ever resided in any of the United States, or that his allegiance was not exclusively owing to the king of Great Britain. The defendants contended to the jury, and requested the court to charge, that if they found the fact that the plaintiff was an alien, resident in the province of Lower Canada, he could not recover in this action, even upon the general issue. But the court gave no instructions on this point; to which omissions to charge, and to the above decisions of the county court, the defendant excepted.</p> <p>The defendant also moved, in arrest of judgment, the same cause, which motion was overruled ; to which the defendant also excepted.</p> <p>It was said in the court below, that an alien can take and hold land, until he is found to be an alien by inquest of office. Inquest of office may be had between suitor and suitor as well as when called for by the state; if a criminal is thought to be lunatic, the judge satisfies his conscience on the subject by inquest of office; if a criminal stands mute, the cause must be sought out by inquest of office; and, in England, it would seem, if one of two claimants, to real estate, suspected the other to be an alien, he might have inquest of office to determine that fact.</p> <p>An inquest of office is an inquisition of jurors, either summoned by the sheriff for the'purpose, or drawn from the panel in court: - they find the fact by inspection, or from the evidence submitted to their consideration ; but, in this state, in actions of ejectment, the defendant has a right, under the geneial issue, to show the fact of the plaintiff being an alien, if residing in the states, and the defendant may do the same, and an inquest of office is never necessary, even where both parties are resident in the state; but in this case, we contend, the court are bound to take notice that the plaintiff is an alien, and not render judgment in his favor, for he sets himself up as a resident of another realm,*' and, therefore, a subject of another government, and nothing to show that he was ever in the United States.</p> <p>The law is well settled, that aliens, until naturalized, cannot hold real estate here or in any of the states. 1 Shep. T. 232, note 12. Kent’s Com. 46 and 54. And, in order to be naturalized, they must comply with the various statutes of the United States. 1 Camp. R. 482.</p> <p>' It is true, that, in some instances, aliens may hold lands without being naturalized, but it is only by operation of the treaty with Great Britain of 1794. But the treaty only applies to titles then held by aliens, (Kent’s Com. 60,) and not to titles acquired subsequently.</p> <p>1. It appears that the plaintiff’s attorney, alter judgment in this case, and before final trial, mutilated the record, and, we contend, he thereby destroyed it. 8 Vt. R. 406.</p> <p>2. The service of the writ was not in conformity to the statute.</p> <p>3. The record ought so show why the officer applied to a justice, and no application to the parties to agree on appraisers.</p> <p>4. The description of the land levied on ought to be so definite as to enable another officer to put the plaintiff in possession.</p>

<p>The statute requiring the clerk to make a minute of “the true day, month and year,” when presented in court, upon all informations and indictments, does not require that the name of the month should appear in the minute, if from the records of the whole term, it admits of no doubt, at what time the minute was made.</p> <p>One, who feloniously takes property in the Province of Canada, and brings it into this state, is guilty of larceny, and may be here tried and convicted of the offence.</p>

Trespass for taking plaintiff’s horse. Plea, not guilty, with notice that defendant took the horse, as constable, upon legal process, and issue to the jury. On the trial in the county court, the plaintiff proved his property in the horse, and the taking by the defendant.

<p>This was a qui tarn action, brought by the plaintiffs to recover the penalty of the statute against fraudulent and deceitful conveyances.</p> <p>Plea, not guilty.</p> <p>The plaintiffs, prior to the commencement of this suit, were partners, doing business at Boston, Mass., and, in then-declaration, alleged, that on the 2d day of May, 1832, Daniel Davison jr. and Edmund C. Hovey, both of Craftsbury, in the county of Orleans, were partners in trade, doing business under the firm of Davison & Hovey, and were indebted to the plaintiffs in the sum of $ 1595,25, as specified in four promissory notes in said declaration mentioned; that on the fifth day of November, 1832, the said Daniel Davison jr. was seized and possessed of a tract of land lying in said Craftsbury, (describing it,) of the value of one thousand dollars, and that on the same 5th of November, 1832, for a feigned and pretended consideration, with intent to defraud the plaintiffs, he, the said Daniel jr., by his deed of that date, duly executed, &c., conveyed the same land to the defendant, with intent to avoid the debts and demands aforesaid, due to the plaintiffs from the said Daniel jr. and the said Hovey, and that the defendant was privy thereto, and with intent to defraud the plaintiffs of their said debt, received said deed from the said Daniel jr. without paying a bona fide consideration therefor, &c., contrary to the statute, &c.</p> <p>It appeared from the writ, that at the time of the commencement of this action, the plaintiff, Forbes, resided in Brooklyn, N. Y., and the plaintiff, Freeman, in Boston,</p> <p>Mass., and that the defendant resided in Craftsbury, in the county of Orleans.</p> <p>The suit was entered at the December term of the county court, 1834, and, at the December term of that court, 1836, the defendant moved the court to dismiss the suit, alleging that before the first day of December, 1836, the defendant became a resident and an inhabitant of Johnson, a town formerly in the county of Franklin, and then being a part of the new county of Lamoille, and that the plaintiffs resided out of the state. It was admitted that the defendant re moved from Craftsbury to Johnson in the spring or summer of 1836.</p> <p>The county court overruled the motion, and the defendant excepted.</p> <p>The cause was afterwards tried, upon the merits, by a jury) at the December term of the county court, 1838, "and in the course of the trial the plaintiffs called Isaac Hovey as a witness, to prove the partnership of Davison & Hovey, at the time of their alleged dealings with the plaintiffs. The witness testified, that previous to any of the transactions involved in this suit, a mercantile firm was established at Crafts-bury, by written articles of partnership, consisting of himself, Daniel Davison jr. and Edmund C. Hovey, by the name of Hovey Davison & Hovey, and that after said firm had carried on business a short time, and before any of the transactions now in question, the witness sold out his interest in the concern to said Daniel Jr. &. Edmund C., who, without any new articles in writing, to his knowledge/continued the business there, by the name of Davison & Hovey. The defendant objected to this parol testimony, insisting that said articles of partnership should be produced. But the objection was overruled by the court.</p> <p>For the purpose of proving the partnership between the plaintiffs, during the period of their alleged transactions with Davison & Hovey, the plaintiff called one Charles Forbes as a witness, and offered to prove, by him, that he was acquainted with the plaintiffs, that they did business at Boston, as wholesale merchants, from the year 1829 until some time in 1833 or 1834; that they kept up the sign of Forbes & Freeman upon the store where they did business; that he traded with them, and they gave their bills in the name of Forbes & Freeman. To this evidence the defendant objected, insisting that articles of partnership should be produced, or evidence given, tending to show that none were ever executed, in which case some direct evidence should be required to prove a contract of the partnership; but as it was not made to appear that articles of partnership had ever existed, the court overruled the objection, and the witness testified to the facts aforesaid, and also to the residence oí the plaintiffs, as alleged in the declaration.</p> <p>The plaintiffs introduced testimony tending to prove that the defendant, upon receiving the aforesaid deed from Daniel Davison jr. remarked, in presence of the magistrate who drew the deed and took the acknowledgment, that he supposed he might now pay for the property, and thereupon delivered to Daniel jr. eight hundred dollars in money, being the amount of the consideration mentioned in the deed; that the money so paid was not the money of the defendant, but belonged to the said Daniel Jr., or to him and his partner, Edmund C. Hovey, and had shortly before been put into the defendant’s hands, to be re-delivered to said Daniel jr. as an ostensible payment for the land conveyed.</p> <p>Testimony was introduced, tending to show that the plaintiffs had made a general assignment of their notes and effects for the benefit of their creditors, but whether such assignment-was made before or after the commencement of this suit, did not appear.</p> <p>The defendant offered in evidence the deposition of Asher Robbins, to prove that the plaintiff, Freeman, in May, 1838, in conversation with said Robbins, admitted that he had no knowledge of the commencement of this suit until the fall of 1837, that the suit was commenced without the plaintiffs’ directions; that the plaintiffs made two assignments of their demands in May, 1833, and that they had no interest in this suit. The plaintiffs objected to the admission of the deposition, and, it being admitted by the defendant that he should not offer evidence of any admission by the other plaintiff, the deposition was rejected.</p> <p>Evidence having been given to support the remaining charges and averments in the declaration, the defendant contended. and requested the court to charge the jury, that the production of the notes described in the declaration in favor of the plaintiff against Davison & Hovey, with proof that the name of Davison & Hovey, thereto subscribed, was in the hand writing of one of said firm, was not sufficient evidence of indebtedness for the purposes of this action. But the court charged, that such production and proof was prima facie evidence of the indebtedness, unless the notes, on inspection, should create a reasonable suspicion of their having been antedated.</p> <p>The court were further requested to charge, that if the jury should find that the notes had been assigned by the plaintiffs, their right to the penalty in question was thereby defeated, and it did not pass to the assignee, and, moreover, that in such case, the right of recovery was barred by the statute of limitations.</p> <p>The court did not charge in reference to this request.</p> <p>It was further insisted by the defendant, that proof of an intention to defraud the creditors of Davison & Hovey, generally, was not enough for the present purpose ; that the purpose to defraud must appear to have referred to the plaintiffs in particular; but the court refused so to chargé.</p> <p>The jury were instructed, that, if they should find said payment to have been made with the money of said Daniel jr.,or of him and his partner, and that the defendant intended to induce said magistrate to believe that it was an actual payment, with the defendant’s own funds, they should regard the transaction as evidence of a justification of said conveyance by the' defendant, within the meaning of the statute. The jury returned a verdict for the plaintiffs, and the defendant excepted.</p> <p>The 4th section of the act passed November 24, 1836, organizing the county of Lamoille, provides that certain actions shall be removed to the county of Lamoille, “where the defendant shall reside in the county of Lamoille,” and the plaintiff out of this state. This seems to place the jurisdiction of the action in the same situation that it would have been in, provided the action had been commenced after the first day of December, 1836.</p> <p>It cannot be successfully contended, that the defendant, in this case, was subject to the jurisdiction of the county court in this county and in Lamoille, also, at the same time. Stat. p. 72. Most clearly, the county court in Lamoille county had jurisdiction, not only by the 48th section of the judiciary act, but also by the statute of 1836.</p> <p>The court will exercise no discretion nor favor to the plaintiffs in this action, as they are entitled to none. Barbe, qui tam, v. Smith, 1 Burr. 402. Janes, qui tarn, v. Hutton, If. B1.290. 8 Vt. R.29.</p> <p>Courts are always unwilling to extend the fair and plain intelligible reading of the statute to a vague, uncertain, indefinite spirit or meaning. Tyler v. Whitney, 8 Yt. R. 29. The statute of 1836 is definite in its terms and expressions, and so is the 48ih section of the judiciary act.</p> <p>The court erred in admitting parol evivence of the contract of partnership between Isaac Hovey, Daniel Davison jr. and Edmund C. Fiovey, also oí the transfer of Isaac Hovey’s interest to Daniel Davison jr. and Edmund C. Hovey. Parol evidence of the contents of a written instrument cannot be received until the loss of the instrument is proved or some other legal excuse is offered for its non-production. 1 Swift’s Dig. 770. 2 Day. 328. 1 Starkie’s Ev. 318, 436, 6. Ed. 2 Starkie’s Ev. 6 Ed. 544. 3 Ed. vol. 3 p. 999. Ttoscoe’s Ev. 8.</p> <p>The best evidence in the power of the party should surely be produced, and the written instruments are within the plaintiffs’ power. 1 Starkie’s Ev. 6 Ed. 436-7 — 8. 1 Gilbert’s Ev. 4 and 5.</p> <p>Isaac Hovey, the witness, was jointly interested and liable with Davison & Hovey to these plaintiffs for their demands, and that the articles of partnership and assignment would show the fact. The only means of ascertaining is by the production of the written instruments themselves, and, if the fact exists as the defendant contends, the action fails. Par.is, qui tam v. BuriOood, 5 Esp. C. 33. Everett v. Tindall, 96. Leach.*617. 3 Starkie’s Ev. 3 Ed p. 1123, Id. notes p. & q ; Philips, qui tam v. Mendez, 1 Esp. C. 59.</p> <p>The degree and character of evidence required in prosecutions of this sort is the same as is required in criminal prosecutions. 1 Burrow, 402. 3 Swift’s Dig. 586 — 7. 2 Hawk. 392. 3 Vt. R. 266. 6 Vt. R. 405.</p> <p>The court below erred in permitting parol evidence to go to the jury to prove the fact of the plaintiffs’ partnership, because it amounted to nothing more than hearsay evidence, which should not be received. 1 Starkie’s Ev. 3 Ed. 41, 44, 46, 47.</p> <p>Partners, who sue as plaintiffs, are held to make stricter proof than is required when they are made defendants. 2 Starkie’s Ev. Ed. 6585, note k. and authorities there cited.</p> <p>- The rule requiring the parties to produce the best evidence within their power, where the par ties have alleged their own partnership, would exclude reputation, and all evidence inferior in degree to a witness who was present, and could declare upon the stand what the contract was, so that the court could determine whether the plaintiffs were partners or not. 1 Gilbert’s Ev. 4, 5. 3 Stark. Ev. 6 Ed. 436-7 — 8. 5 Eng. Com. L. R. 147.</p> <p>The indebtedness of Davison & Hovey must be proved as alleged. It is not sufficient to show the notes, merely, for they do not prove the lact as to this defendant. The notes are only prima facie evidence of an indebtednesses .against Davison & Hovey, the signers, but afford no evidence as against this defendant, as he is neither party nor privy thereto. These notes may be void for want of consideration, or gambling, or usurious contracts, or given for an illegal act or thing which would make them void.</p> <p>The mere fact of the existence of the notes affords no evidence of the indebtedness as alleged in the declaration; at all events, it is not such evidence as should be left to the jury to infer the fact beyond a doubt. 2 Starkie’s Ev. 6 Ed. 182, Pocock v. Billings, 2 Bing. 269. 9 Com. L. R. 409. Carter v. Palmer, 12 Mod. 380. Burr. 1525. Clark v. Martin, Ld. Raym. 758.</p> <p>Davison & Hovey could have been called by the plaintiffs to prove their indebtedness to the plaintiffs. When it lies directly in the power of the party to 'make out a fact clearly and unequivocally, and he fails to produce, the evidence, the presumption is, that if it were produced, it w'ould be against him. So in the present case, the plaintiffs’ withholding the evidence within their reach to prove these notes bona fide, and of’ value, by the testimony of Davison & Hovey, affords a legal presumption against the indebtedness as alleged. 6 Ed. 1. Starkie’s Ev. 436-7-8. 1 Gilbert’s Ev. 4 and 5. 2 Russell on Crimes, 619, and authorities cited.</p> <p>We also contend, that the indebtedness from Davison & Hovey to the plaintiffs must have existed at the time the action was brought, otherwise, the action is extinct.</p> <p>Suppose that after the fraudulent conveyance and before action brought, Davison & Hovey had paid all that the plaintiffs had against them, can it be pretended that the plaintiffs could recover the penalty ? Certainly not.</p> <p>Assignment is the setting over or transferring the interest a man hath in any thing to another. 1 Jacobs’ Law Dictionary, 139. The assignor parts with all his interest, and has none remaining, nor any liability. He cannot compromise, control or discharge the claim. 1 Swift’s Dig. 133 <§> 7; 1 Chip. R. 346. 2 Aik. 373. 1 Vt. R. 168.</p> <p>The evidence must show that the conveyance was made with an intent to defraud these particular creditors.— Staf. p. 266.</p> <p>Some, act, besides taking the deed, must be proved to constitute the offence, because the statute contemplates and requires some other act to be done by the party taking the deed, before the offence is committed, upon which the penalty accrues.</p> <p>That portion of the statute, which declares the conveyance void, must, we are aware, have a liberal construction, but the latter clause, giving the penalty, must be strictly construed ; because the first clause operates upon the offence, and the latter clause upon the offender. Plowd. 17. 3 Inst. 381.</p> <p>1 Swift’s Dig.' p. 12. Brooks v. Clayes &f Morse, 10 Vt. R. 50.</p> <p>The court were requested to instruct the jury, that, if they found that the demands due Forbes & Freeman from Davison & Hovey were assigned by Forbes & Freeman before action brought, the action could not be sustained, provided they also found that the action was prosecuted for the benefit of the assignees. The provisions of the statute are for the party aggrieved, i. e. him, whose right, debt or duty is sought to be avoided, and his only. He and he only, therefore, can support the action. The idea that the assignee of the debts could support the action is forbidden by the words as well as the spirit of the act. Stat. p. 266.</p> <p>This action would not even survive to the executor, administrator or heirs of the party aggrieved.</p> <p>The assignment of the debt could give the assignee no better right than the representative of the assignor would have, and such representative could not sue for the penalty, because it is not given to him by the statute, and he cannot sue at common law. Carthew’s R. 361. Cro. Eliz. 766. Com. Dig. title Adm’r. B. 15. 2 ,H- B. R. 311. 1 Chit. PI. 13.</p> <p>The decision of the county court, rejecting the deposition of Robbins, was clearly wrong in any point of view. The admissions of a party are always competent evidence against himself. 2 Starkie’s Ev. 6 Ed. 22. 6 T. R. 633. 14 Com. Law R. 490. 1 Swift’s Dig. 761. 10 Johnson, 66. Roscoe’s Ev. 28.</p> <p>The court rejected this deposition, as the exceptions say, because the defendant was not prepared to prove similar declarations by Forbes. The legality or competency of-the delarations of one of two partners never can depend upon the fact whether the other partner has made similar declarations or not. Therefore, whether the party can prove such declarations of the other partner, or not, is immaterial as to the competency of the evidence. The declarations of one partner bind the partnership. Kemble v. Ferren, 14 Com. L. R.490, also reported in L9 Com. L. R. 34. 2 Starkie’s Ev. 6 Ed. 22,23 x 25. Whitcomb v. Whiting, 2 Douglas, 652. Jackson v. Fairbanks, 2 H. Bl. 340. Peake’s Cas. 203. 1 Starkie’s Ev. 82. 2 Eng, C. L. R. 305. 30 Johns. 66, 216. 4 Com. 500. 2 Pick. 581.4 Pick. 38. 2 Com. L. R. 838. Peake’s Cases 16. 2 Com. L. R. 4S0. 15 Com. L. R. 256. 2 Selw. N. P. •320. 2 Starkie’s Ev. 6 Ed. 587-8. 1 Swift’s Dig. 761 — 2. 13 Petersdorff, 117. 1 Saund. PI. and Ev. 60.</p> <p>We further contend that the statute of limitations had run upon this penalty before action brought, and that the defendant has a right to take advantage of that under the general issue. Bal. on Lim. p. 208. 1 Swift’s Dig. 304. ' Í Selw. 518, note, 126. J3. N. P. 105. Ld. Raym. 78. 1 Tidd’s Pr. 14. 13 Petersd. Ab. 196. Note to Colliford v. Blanford, Carthew’s R. 232. Hubbell v. Gale, 3 Vt. R. 266.</p> <p>The only question for the court to pass upon, in this action, is, whether there is any limitation at all to actions upon this statute. If there is any limitation, the question would be, what is the limitation ? If there is none the court ought to make one. The statute of 1797, sect. 1, p. 288, has not limited this action, in words; but the action must be treated as coming within its provisions.</p> <p>If, indeed, there is any express or implied limitation of this right of action by statute, what ought the court to do ? Ought they not refer to the common and statute laws of England, as adopted by our statute, and see if they find no general limitation, which should obtain, to bar the plaintiffs’ right of recovery at some time ? There must be some limitation. Story’s Con. of Laws, 483. 1 Selw. N. P. 518, 19. 1 Tidd’s Pra. 14, 15. Petersd. Ab, 196.</p> <p>I. The motion, in this case, to dismiss, was inadvisedly made. Davison, at the commencement of this suit, was residing in Orleans county, and, if final judgment is rendered against him, the execution must set him up of Craftsbury, the place of his former residence.</p> <p>It is evident, that this is a case which could not have been contemplated by the legislature, as coming within the statute, for, by its strict phraseology, every defendant in the state, the plaintiff living without, might have changed the venue by removing into Lamoille county, before the 1st d,ay of December, 1836, for the statute is prospective,'‘shall reside within the county of Lamoille,” and this defendant has had no other object in view by his removal, and, failing in it, he removed back again to Craftsbury, where he now resides.</p> <p>This statute, like every other, is to have a reasonable construction given it, and it. would be unreasonable to suffer the defendant to change the venue of an action, by changing his domicil expressly for that purpose. It is more reasonable to suppose the legislature intended, and for the court to construe the statute, as applying to those defendants only, who had their residence in Lamoille county, at the time when the suits pending were commenced.</p> <p>II. We think the witness, Isaac Hovey, properly admitted. It is not to be presumed that he had the articles of partnership of Hovey, Davison & Hovey in his possession, after withdrawing from the firm, nor is it tobe supposed that the plaintiffs could have access to them. Were it material for the plaintiff to produce them, it would be Davison’s interest to withhold them.</p> <p>III. To shew the existence of a firm by one who has done business with such company, or individuals known to be of the firm, is all which has been heretofore required to establish the identity of such firm, even in criminal proceedings. A general knowledge of the bills and location of a bank has been held sufficient to establish its identity and location.</p> <p>IV. The deposition of Asher Robbins was properly rejected. It was irrelevant whether Freeman knew of the pendency of the suitor not, and can have no effect upon the assignee’s right to prosecute.</p> <p>V. It is the first time we ever heard it contended that a promissory note, unattended with suspicious circumstances, was not prima facie evidence of the indebtedness of the maker.</p> <p>VI. The assignment, in this case, was not a parting with the int&rest in the demands. It was not what we understand by indorsing over, but, in strictness, the appointment of a trustee., and the placing the demands in his hands as a friend, and directing the proceeds thereof to be applied equally among the creditors of the assignee in payment of his liabilities.</p> <p>VII. - The jury found that the money paid for the deed was the property of Daniel Davison jr. or Davison & Hovey; that the defendant meant to represent to the witnesses around him, that the money was his own, though it had shortly before been placed in his hands by Daniel, jr. for the purpose to which the defendant applied it. The request to the court was an absurdity, for a purpose or intent to defraud the creditors of Davison & Hovey, in general, was an attempt to defraud Forbes & Freeman in particular. But all this is going beyond the statute, which requires, to fix the penalty, that the conveyance be made or had to avoid any right, debt or duty of others, and this known to the grantor. See Edg~ ell v. Lowel, 5 Vt. R. 405.</p>

This was an action of assumpsit on sundry promissory notes including general counts. ■ Plea, non assumpsit, and trial by jury.

<p>Where a promissory note was given for the price of a horse, payable absolutely in ten days, and it was at the same time agreed, that if the horse did not meet the expectation of the person for whom he was purchased, and were returned within ten days, he should be received in lieu of the note, and the horse was, in accordance with such contract, returned, but not accepted by the vendor ; — It was held, that it was not competent to give such collateral matter, resting in parol, in evidence in defence of the note.</p>

<p>This was an action of trover, for a cow. Plea, the general issue, and trial by jury.</p> <p>Upon the trial in the court below, the plaintiffs proved in support of the action, that, on the 17tb day of August, 1837, one Downer, a deputy sheriff, had in his hands, for collection, a writ of execution, in their favor against one Luther Kidder, for about twelve dollars, including said Downer’s fees thereon; that said Downer, as the agent of the plaintiffs, received of said Kidder a bill of sale, from said Kidder to the plaintiffs, of the cow in question, the same being then in the possession and use of one Jesse A. Hall;— that, at the same time, Downer, as agent as aforesaid, received from Kidder a note of sufficient amount to pay the .execution, aforesaid, against one Wm. H. Isaacs, under an agreement, that if Isaacs, in exchange for said note, would execute a new note, payable to the plaintiffs, the same should be . accepted, and thereupon the bill of sale should become void. It appeared that, on the occasion aforesaid, said execution and fees thereon were entered satisfied and discharged. It also appeared, that previous to the time aforesaid, Kidder and Hall had exchanged cows, for the season, Kidder having received a cow belonging to Hall, and Hall having received the cow in question, and that a re-exchange was not, by their contract, to take place till the 1st of Dec. 1837. It was further proved, that, immediately upon receiving the bill of sale, Downer went to Hall and notified him of the purchase of the cow by the plaintiffs, as aforesaid, and requested him to keep her for them, to which Hall assented, at the same time telling Downer, that he could not part with the cow, until the first of December, 1837, and until he should receive back his own cow, then at Kidder’s. It also appeared, that, shortly afterwards, Downer called on Isaacs, with the note aforesaid, who declined to give a new note, payable to the plaintiffs, whereupon Downer returned the note to Kidder, all which proceedings of Downer were sanctioned and approved by the plaintiffs, who accepted the bill of sale of the cow, in satisfaction of their debt.</p> <p>It was further proved that, on the 31st day of Oct. 1837, the cow was attached, and taken from the possession of Hall, by the defendant, upon a writ of attachment, in his favor against Kidder, but, on the day following, was returned to Hall’s possession.</p> <p>It was then proved that on the 1st or 2nd day of November, 1837, by mutual assent of Hall and Kidder, said cows were re-exchanged, and the one in question was taken into the possession and use of Kidder ; that, on the 6th day of November, 1837, she was attached, while in the possession of Kidder, and driven away, by order of the defendant upon a writ of attachment, in favor of the defendant,'and Dioclesian Melvin, against Kidder; — that, on the 3d or 4th day of Dec. 1837, the cow was demanded of the defendant by the plaintiff, Morse, with which demand the defendant, then having the cow in his possession, refused to comply; — that, on or about the 18th day o December, 1837, the cow was sold on an execution in favor of D. & D Melvin, against said Kidder, issued on a judgment by them recovered, in the suit last mentioned. It appeared, that at the time of the demand by the plaintiff, Morse, the writ in this action had been issued, but not served.</p> <p>There was no evidence tending to show that either of the plaintiffs had any notice of the re-exchange of cows, between Hall and Kidder, or of the last attachment of the cow, until after the 1st day of December, 1837.</p> <p>It appeared that the defendant had notice of the plaintiffs’ claim to the cow, previous to his second attachment of her, but not from them or their agent.</p> <p>Upon these facts the defendant contended, that, as the cow was in the possession and use of Kidder, at the time of said second attachment, the previous sale to the plaintiff was constructively fraudulent and void as against the second attachment, and that the defendant had therefore a right to follow up the attachment by a sale of the cow upon the execution.</p> <p>But the court instructed the jury, that the principle of' fraud in law, or constructive fraud, did not apply to the facts of the case. Whereupon the jury returned a verdict for the plaintiffs. The defendant excepted.</p> <p>The charge of the court in this case, was erroneous. The facts of the case, as detailed in the bill of exceptions, clearly show that the claim of the plaintiffs, to the cow in question, was, as against the defendant, fraudulent in law. The rule, which requires a visible substantial change of possession to enable the purchaser of a chattel to hold it as against an attaching creditor, has been too often settled by this court to need any additional discussion.</p> <p>Two questions then arise. First, — Was therein this case such a change of possession as the law requires ? Secondly, Was the transaction of that character between the plaintiff and Kidder, that the law required.' in order to perfect and consummate the sale, any change of possession ?</p> <p>The first point is clearly with the defendant. Notwithstanding the property at the time of the execution ’of the bill of sale to the plaintiffs, was in the possession of a third person, and he was notified ot the lien the plaintiffs had oii it, and agreed to keep it in that manner, that the plaintiffs’ lien would not be prejudiced, still the case does not come within the principle of the cases of Barney v. Brown, 2 Vt. R. 374, and Spaulding v. Austin, 2 do. 555, but it falls strictly within the case of Morris &/• Hilton v. Hyde, 8 Vt. R. 352, and if so, the plaintiffs are not entitled to recover.</p> <p>The case further shows, that the plaintiffs never had any possession or right of possession to the property, as, when they acquired their lien upon the cow, she was in Hall’s possession, who had the right of possession until after the conversion by the defendant.</p> <p>The plaintiffs, at the time of the conversion, had not the right of possession, and this ingredient is held to be indispensable in the action of trover. Gordon v. Harper, 7 T. R. 9.</p> <p>2. Possession must, in all cases, follow and accompany the sale, or the purchaser acquires no lien as against the at-fetching creditors of the vendor. 2 Kent’s Com. 523, 531. Woodioard v. Gates et al. 9 Vt. R. 361.</p> <p>The bill of sale is absolute, and, in all such cases, possession must follow and accompany the deed, and evidence of a fair intent and purpose between the parties is not admissible. 2 T. R. 157.</p> <p>It is believed that the rule adopted by the county court, in this case, is established in this state. Barney v. Brown, 2 Vt. R. 374. Spaulding v. Austin, 2 do. 555. Pierce v. Chipman, 8 Vt. R. 334. Farnsivorth v. Shepard, 6 Vt. R. 521. The last case, we believe, establishes the doctrine contended for by the plaintiffs, and, in fact, goes further, for in the case at bar, the plaintiffs never knew or consented to the use and possession of the cow, by Kidder.</p>