Volume 12 — Vermont Reports

Debt upon a jail bond, given by defendants to plaintiff as sheriff of Chittenden county, for the admission of the defendant, Ogden, to the liberties of the jail yard, who had been committed to jail by virtue of a writ of execution, issued on a judgment recovered before Amos Blodget, a justice of the peace, on the 24th of December, 1832, in favor of Frederick Orvis and Morton Cole, against the defendant, Ogden, for ^ 3 0,79 damages and $1,45 costs.

This was an action of book account. Judgment to account having been rendered, auditors were appointed, who reported that the plaintiff, who was a manufacturer of tin ware, employed the defendant, in April, 1834, to peddle wares for him and agreed to pay the defendant fifteen dollars per month for so doing; that, under this contract, the defendant received the articles charged in the plaintiff’s account, and spent some part of his time from that period until the fall of 1836,…

<p>Ejectment, to recover the possession of a piece of land in Westford. Plea, not guilty. Issue to the country.</p> <p>On the trial in the county court, the defendant admitted that he was in possession of the land in question, at the time of the service of the writ, and that he had, before that time, enclosed it with a fence, was then occupying it for private purposes, excluding the public from the use of it as a public common.</p> <p>The plaintiff gave in evidence, the copy oí a deed from himself to the town of Westford, dated August 15, 1825, in and by which deed the plaintiff did “ give, grant, bargain, sell, alien, release, convey and confirm unto the said town of Westford, and to the assigns thereof forever,” all his “ right, title, interest, claim and demand to a certain piece or parcel of land in said Westford, being a part of lot No. 38, said land being for the use of a common, bounded on the west by the town common as it now is,” &c. being the land described in plaintiff’s declaration, and covenanted with the ’ town and their assigns, that he was well seized of the land, &c. and that he would warrant and defend, &c.</p> <p>The plaintiff also gave in evidence a copy of a deed from the town of Westford to the defendant, dated April 7,1829, conveying the land in question to the defendant, which latter deed was executed by the selectmen of said Westford, and contained a recital that they executed said deed by the authority vested in them by a resolution of the inhabitants of Westford, passed in a town meeting held on the first Tuesday in March, 1828, &c.</p> <p>The defendant gave in evidence a copy of the proceedings of said town of Westford, at a town meeting held on the second day of May, 1825, from which it appeared that a committee of four persons were appointed “ to act in conjunction with the selectmen for the purpose of surveying the meeting house common, so called, and establishing its bounds, and if said committee think best to alter said common, by exchanging some part of it for land owned by Thompson Beach, or by purchasing land of said Beach, to make proposals to Mr. Beach and get his proposals and lay them before the town at a future meeting.”</p> <p>The defendant also gave in evidence a copy of the pn> ceedings of said town, ata meeting thereof held on the 20tl of June, 1825, from which it appeared that the following vote was passed, viz.; — “Voted that the selectmen be au thorized to pay Thompson Beach the sum of fifty dollars, ii sixty days, it being for a piece of land in the centre of th> town, and receive a deed from said Beach in behalf of sail town.” And also gave ir> evidence a copy of the proceeding of another town meeting, held on the 4th of March, 1826 at which meeting the town passed the following resolution unanimously ; “ Resolved, that the selectmen be and the are hereby authorized to sell and deed a piece of land in th north part of the town’s common, east of the school hous land ; and also that the selectmen be authorized to parchas a piece of land east of the aforementioned piece of land, s as to make the north line of said common due east and wes or parallel with the south line of said common; Provide i that in said sale and purchase the town shall not be mac chargeable for any purchase money.”</p> <p>, The defendant introduced parol testimony, tending to sh c that, after about one year from the date of the deed from the plaintiff to the town, the defendant, by direction of the selectmen of Westford, took possession of the land in question, enclosed it with a fence and had ever since held it in his own right by virtue of the deed from the town of Westford to him.</p> <p>From this evidence the plaintiff requested the- court to charge the jury; — 1st, That the deed from the plaintiff to the town of Westford did not pass a fee simple to-the town, but only the use of the premises to be appropriated by the town as a common for public use.</p> <p>2nd. That if the jury should be of opinion that the defendant, by direction of the town of Westford, had appropriated said land to private purposes and had inclosed the same with a fence, thereby excluding the public from the use of it as a public common, the plaintiff was entitled to recover against the defendant in this action, subject to the public easement.. The court refused so to charge the jury, but decided, that the plaintiff was concluded from maintaining the present action by force of the deed from him to the town of Westford, under whom the defendant claimed to be in possession, and so instructed the jury, whereupon they returned a verdict for defendant.</p> <p>The plaintiff excepted to the decision and charge of the court.</p> <p>It is plain from the words of the deed that Beach did not intend, to convey an unlimited estate in fee simple to the town of Westford, even supposing the town, as such, is capable of taking a fee in lands.</p> <p>Notwithstanding the word, assigns, is introduced twice in the course of the deed in those parts which are usually printed, yet, in the written part of it, the land is expressly declared to be for the use of a common. No language could express, in a clearer manner,-the intention of the grantor. It was to be appropriated to a public use. This clause, then, was introduced to limit and restrict the indefinite use to which, in the opinion of Beach, the land might otherwise be applied.</p> <p>It was not used to describe the land to be conveyed. > Every part of the description of the land is perfect without it. It was designed as a description of the estate in the land, but not as a description of the land itself. It is not possible to conjecture any motive for the introduction of these words, unless to restrict the future use of the land to the purposes of a highway or common.</p> <p>The words, “ all my right, title, interest, claim and demand,” like all other parts of the deed, ought to be construed so as to effectuate the intention of the parties and not to defeat it. It was the intention of Beach to part with all his right to the land so long as it should be appropriated to public use, and the words in the deed, above recited, construed in connection with the restrictive clause, can have all the effect which they deserve to have. The same may be said of the word assigns.</p> <p>If the court give full effect to the words relied on by the defendant, the decision will involve a complete abrogation of the clause which shows the intention of the parties, and, with it, that intention, — and thus the deed will appear to have been given for one purpose and the court will have permitted it to be used for another. Nothing will justify a court in defeating the clear intention of the parties to ajcontract, but the strongest legal authorities, and such we presume do not exist in the case. On the other hand, the construction, of the plaintiff permits the intention of the parties to take effect and all parts of the deed to stand.</p> <p>If the court should not adopt the plaintiff’s construction, then it is contended that the town of Westford was wholly incapable of taking a fee simple in its proper sense by virtue of the deed.</p> <p>A town has no powers except such as are expressly given by the legislature and such as are necessarily implied in order to carry those express powers into operation. Hence a town may hold lands for the use of a highway, for supporting its poor, or for the maintenance of schools ; but the law no where requires or authorizes towns to trafic in real estate to the extent allowed to individuals. See Bangs v. Snow et al. 1 Mass. Rep. 189. First parish inSutton v. Cole, 3 Pick. Rep. 237, 239. 2 Kent’s Com. 298, 299, also 278. Pomeroy v. Mills, 3 Vt. Rep. 279, 410.</p> <p>If the plaintiff is correct, either in his construction of the deed, or of the powers of the town, it follows that he is entitled to recover the seizin and possession of the land demanded, subject to the right of the public to use it as a highway, which is the only object of the present action.</p> <p>This point was decided in the case of Promeryy v. Mills above cited.</p> <p>The deed of the plaintiff to the town of Westford was not conditional, but the town took, by it, an unconditional fee simple.</p> <p>I. It is a rule of construction, that, in order to give such force to a condition that it shall work a forfeiture, the language of the Condition must be so positive and the interest so manifest, that it excludes any other conclusion. It is now settled law that no condition shall be construed to defeat one’s estate in fee, unless it is introduced by formal and technical words, as sub conditione, provided always, so that, or the deed must contain an express clause of re-entry. See Coke on Litt. 328, 9, 30, and notes of Ld. Coke under those sections, and Shep, Touch, p. 121.</p> <p>Notwithstanding the feoffment is expressed to be made ea intentione, ad effectum, fyc., that the feoffee shall do so and so; nevertheless, these words will not make a condition, without an express clause of re-entry. Dyer 138. Shep. Touch. 123. Bac. Abr. title condition (a). Coke on Litt. above cited.</p> <p>The deed itself evidently shows that the grantor parted unconditionally with all interest in the premises. He sells to the town of Westford and their assigns, and covenants to warrant and defend the premises to them and their assigns. Why covenant with their assigns if the town of Westford have no right to sell ?</p> <p>In Moor 881. It was held, that “if a lease be made to “ a man and his assigns for twenty one years, provided that “ he shall not assign, such proviso, being repugnant to the “ premises, is void ; but it would have been good if the word “ assigns had been omitted.”</p> <p>See this case cited in note p. 124, Shep. Touch, and also in Bac. Abr. title Grant.</p> <p>Words, which will make a condition in a lease for years, will not in an estate for life, gift in tail, or estate in fee simple.</p> <p>See the various cases put in Shep. Touch, p. 124.</p> <p>II. Towns are corporations, and it is one of the powers, incident to corporations to purchase real estate to any extent unless restricted in their charters, Kyd. on Corp. 7, 70. Angelí & Ames on Do. 58, 59, and to alienate the same, Angelí & Ames Do. 78, and cases and authorities cited p, 404, 113, 114.</p>

<p>A writ of execution may be executed on the day on which it is returna, ble ; and where the body of the debtor is committed to prison, it is not •necessary that the execution should be returned into the proper office within its life, and no action on the case can be sustained by reason of its not being so returned.</p> <p>If a deputy Sheriff has authority from the creditor to manage an execution, committed to his charge, according to his discretion, the sheriff is discharged of his liability for the official neglect of such deputy.</p>

<p>Trover, for one bay mare, one sorrel mare, one double wagon and one double harness.</p> <p>Plea, not guilty, with notice of special matter in justification. Issue to the country.</p> <p>Upon the trial in the county court, the plaintiff, to support the issue on his part, offered evidence tending to prove that in the spring of 1836, the defendant sold the plaintiff one span of horses and a double harness, and was to take his pay for the same, one half that year and the other half the next year, in drawing lumber from Huntington to Vergennes ; that a portion of the lumber was drawn in the summer of 1836 ; that about the first of September, 1836, he exchanged one of the horses which he had of the defendant with one Gorton, and the defendant received the horse so had of Gorton, and applied the same on the contract with defendant for the horses at ,$75. The defendant, to support the issue on his part, introduced testimony tending to prove that the sale of the property by him to the plaintiff was conditional; that the property was not to be the plaintiff’s until it was paid for, and that it had not been paid for.</p> <p>It was admitted that the bay mare and harness in ques- . . . * tion were the same that the plaintiff originally had of the defendant.</p> <p>The defendant offered further testimony, tending to prove, that, in the month of October, 1836, the plaintiff left Huntington and went south with said bay mare, and a sorrel mare; that the defendant, claiming the bay mare, pursued the plaintiff to Pittsford, overtook him and brought him back to Salisbury ; that, at the latter place, the plaintiff, by an agreement, with the defendant delivered the bay mare to the defendant to cancel the original debt which the plaintiff owed to the defendant for said horses and harness.</p> <p>The plaintiff introduced further testimony, tending to prove, that, at the time of making said agreement and delivery of said bay mare to the defendant, the plaintiff was an infant, under the age of twenty one years.</p> <p>The county court, among other things, instructed the jury, that, if they should find that the sale of the property was absolute and not conditional, and that the defendant had converted the bay mare to his own use, previous to the commencement of this suit, the plaintiff was entitled to recover the value of her, notwithstanding they should find that the plaintiff, subsequent to the sale, and prior to the defendant’s taking possession of her, agreed with defendant to deliver her up in satisfaction of the original debt, provided they should also find that the plaintiff, at the time of the making of such agreement and delivering up of said mare, was a minor, under the age of twenty one years, and had offered to the defendant to restore him to, and place him in, the same situation he was in at the time the agreement was made to give her up. The jury returned a verdict for the plaintiff and the defendant excepted.</p> <p>The court below erred in their instructions to the jury.</p> <p>The jury ought to have been instructed, that, if they found the plaintiff voluntarily delivered the mare to the defendant in satisfaction of the original contract, or if they found that the parties mutually agreed to rescind the original contract and did rescind it, and the plaintiff delivered'the mare to the defendant by reason thereof, then the plaintiff could not recover.</p> <p>An infant is bound by some of his acts as well as an adult. If he deliver property with his own hand he cannot sue in trespass or trover for it. In Mariby v. Scott, 1 Modern Rep. 137, the court held, that, “if an infant gives or sells goods “ and with his own hands delivers them, he shall have no “ action of trespass against the vendee by reason of the de- ‘‘ livery. 21 Hen. 7, 39, 26 Hen. 8, 2.” The reporter refers to Holt 77. 2 Roll. Rep. 408. Latch’s Rep. 10, as sustaining the position.</p> <p>If' that position be correct, then it is clear that this action cannot be maintained, as the case shows that the plaintiff voluntarily delivered the mare to the defendant at Salisbury. But the court charged that even if he did so, it did not amount to a defence, provided the plaintiff was a minor. Lord Bacon, in his abridgment, vol. 3, p. 139, says “if an “ infant deliver a horse or a sum of money with his own “ hands, this is only voidable and to be recovered back infan “ action of account.” So in Holmes v. Blogg, 4 C. L. R. 189, it was held, after much argument and great deliberation, “ that if an infant pay money with his own “hand, without a valuable consideration, he cannot “ recover it back again and, when an infant had, during his infancy, paid a large sum as a premium for a lease, though the court permitted him to avoid the lease on his coming of age, yet they refused to permit him to recover back the premium. See the opinion of Gibbs, Ch. J. and the authorities there cited.</p> <p>If there has been any uniform and well settled rule of the common law for the last 300 years, it is this, that infants may, in all cases, avoid their contracts, except such as are for necessaries. 2 Dane’s Dig. 18, and the authorities there cited. 2 Kent. 234.</p> <p>And if there are exceptions to this general rule in the English books, they tend to confirm it, as they are only such contracts as, in the judgment of law, are for the infant’s benefit.</p> <p>The inference, from the case, is, (although it is not fully stated) that this defendant had received all the drawing of the lumber which was to be done in 1836, and which must be supposed to be one half the purchase price, and had received ahorse at $>75, toward the same. Yet, because the f young man went away m the month of October of the same year, the defendant followed him to Pittsford, overtook and" brought him back to Salisbury, and then he voluntarily delivered up the horse in question to the defendant.</p> <p>Will it be contended that this was for the benefit of this minor and therefore binding upon him? The inference, from the case, is, that nearly the whole of the purchase price had been paid in drawing lumber and in the $75 horse. Under these circumstances, to surrender the one half of the property originally purchased, could not be for the benefit of the plaintiff.</p> <p>The jury must have found, under the charge of the court, that the rescinding of the contract by the plaintiff placed the defendant in as good a condition as he was before he got possession of the horse in question.</p>

This was an action of assumpsit for labor, materials &c., in the erection of a house. Plea, non assumpsit. Issue to the country.

<p>This was an action of trespasson a tract of land called Avery’s Gove, attached to the town of Huntington. Plea, not guilty, and trial by jury. 1</p> <p>Upon the trial in the county court, the plaintiffs offered a charter of Avery’s Gore from the State of Vermont to Samuel Avery, dated January 27, 1791, and also the copy of a d'"ed, from the same Avery, to Marvin & Crampton, dated November 1, 1790, in and by which deed the said Avery did “give, grant, bargain, sell, alien, release, convey and confirm” unto the said Marvin & Crampton, their heirs and assigns, the land in question, and covenanted to warrant and defend the same against all claims of all persons claiming the same under him, or his assigns, or the State of Vermont; to which deed the defendant objected, on the ground that it?, was merely a release of the grantor’s title, and, having been executed before the grantor had any title, it conveyed nothing. But the court overruled the objection, pro forma, and admitted the deed.</p> <p>The plaintiff read the copy of a deed from the same Marvin &. Crampton to one John Bridgeman of Huntsburgh, dated September 10, 1793, and then offered the* copy of a deed dated Sept. 10, 1794, from John Bridgeman, jr., of Hinsdale to Edward Houghton, conveying the same land. To this last deed the defendant objected on theground that the grantor in this deed was not the same person who was grantee in the other, but the court ruled that the question of identity was for the jury to decide and the deed was read'.</p> <p>The plaintiffs offered an original deed from- the same Edward Houghton to them, bearing date the 28th of April, 1822, but acknowledged May 24th, 1837, conveying the same land. The description of the land, in this deed, is as follows; “ being the same land conveyed by me to John W. Blake, Esq., late of Brattleboro’, deceased, and of which the said John W. died seized, reference being had to- the deed from me to the said John W. Blake, deceased,, for'a description oí the whole tract,” &c. To this deed defendant objected on the ground that it appeared, by the deed itself, that Houghton had, before that time, conveyed the same land to anothergrant.ee.</p> <p>To obviate this last objection,, the plaintiffs offered the copy of a deed from the same Edward Houghton to one John W. Blake, dated December 2, 1794, which was witnessed by one witness only. The defendant insisted that this did not remove the objection and that these plaintiffs could not be allowed to object to the validity of the deed, last offered in evidence, but the court overruled the objections and the deeds Were read*</p> <p>The defendant requested the court to charge the jury, that the presumption of law was that the two Bridgmans, named in the conveyances, were different persons, and that, in order to make out that they were identical, the burden of proof was on the plaintiffs, and that, unless they were satisfied by the proof that they were identical,the plaintiffs’ title was imperfect.</p> <p>But the court declined so to charge, but did, among other things, charge the jury, that the question of identity of the two Bridgmans was purely a question of fact for the jury to find from the evidence in the case, and that there was no presumption of law that they were different persons, and that this identity must be found by the jury before they would give the deed from John Bridgman, jr. to Edward Houghton any legal operation. The jury, under the instructions of the 'court, returned a verdict for the plaintiffs and the defendant excepted.</p> <p>After the cause was entered in this court, the plaintiffs moved for leave to show that Samuel Avery received a grant, from the State of Vermont, of the lands in question, previous to the execution of his deed to Marvin & Crampton, as will appear from the opinion of the court.</p> <p>I. We contend that no title passed by the deed from Avery to Marvin & Crampton. . s</p> <p>This deed is dated Nov. 1, 1790, and is a mere release. But, at the date of the deed, the grantor had no title. The charter from Governor Chittenden to him was issued in the year subsequent, and, unless a charter is to be considered more effective than an ordinary deed, the question would seem to be at an end.</p> <p>II. We contend the court erred in the matter of the two Bridgmans. The deed is to John Bridgman, of Huntsburgh, but John Bridgman, jr., of Hinsdale, undertakes to convey, and the simple question is, whether, apparently, these are two persons. If they are, then there is a ’ presumption of law, which can only be overthrown by evidence of their identity. Bridgman & Bridgman, jr. are as much two names, indicating different persons, as Bridgman & Bridges would be, or any other two names. The close resemblance amounts to nothing, so long as there is any thing to indicate a distinc^0”'</p> <p>As there was no evidence to show that Bridgman & Bridgman, jr., were the same person, it was pushing a yankee right to the extreme to allow the jury to guess off the title to the land in question.</p> <p>III. There is another question growing out of the deed from Houghton to the plaintiffs.</p> <p>It appears, by this deed, that Houghton had previously conveyed the same land to John W. Blake, and that Blake died seized. By examining this deed to J. W. Blake, it appears to be an ancient deed, dated as early as December 2, 1794, and the land seems to have remained in John W. Blake and his heirs more than fotty years before this attempt to twist the title into the hands of these plaintiffs. The deed from Houghton to J. W. Blake might, originally, have been defective, but the grantee could have enjoined Houghton from any attempt to disturb the title. But at all events it is quite clear that, after quiet possession for more than fifteen years in John W. Blake, it is too late for Houghton to attempt to convey the title to another. At the date, or rather delivery, of this deed to the plaintiffs, the title had long been perfected in the heirs of John W. Blake, and there was nothing that could pass by this deed to the plaintiffs. Houghton surely could not sustain a suit against the heirs of J. W. Blake, and if so, then his grantees cannot against this defendant. 9 Cowen’s R. 86.</p> <p>The principle has long been settled, that when the grantor conveys with general warranty against all persons, and has no title at the time of conveying, any subsequent title he may acquire enures immediately for the benefit of his own grantee. Jackson v. Murray, 12 Johns. R. 201. Jackson v. Wright, 14 Johns. R. 193.</p> <p>To escape from the application of this principle, the defendant contends that the rule is never applicable except in cases, where the covenant of warranty is general against all persons. We contend the rule is not thus restricted.</p> <p>Whenever the grantor has not the title but enters into a special covenant to warrant and defend the grantee against particular persons; if he subsequently acquire the title from those persons, his deed enures immediately for the benefit of his own grantee, and he is estopped from asserting title in himself. This is evident from the reason of the rule which, in one respect, is to prevent cireuity of action. Comstock v. Smith, 13 Pick. R. 119.</p> <p>If Avery had recovered against his grantees, under the title which be acquired from the state, after the execution of his deed to them, they could recover the value of the land of him, as he had covenanted against the title of the state.</p> <p>Whether the Bridgman, who received the conveyance, and he, who executed the same, were one and the same person, was purely a question of fact and properly submitted to the jury. Junior is no part of a person’s name. 6 Vt. R. 9.</p>

This was an action of assumpsit on a note for fifteen dollars, to which the defendant pleaded the general issue and a set-off in assumpsit for work and labor, care and diligence and money paid, laid out and expended for the plaintiff. Issues to the country. On the trial in the county court, the plaintiff produced and read the note declared on.

This was an action on the case, for slanderous words, in five counts.

<p>Audita Querela is a judicial writ, and the parties to the judgment and execution sought to be vacated, or their legal representatives, must be made parties to such writ.</p>

This was an action of assumpsit for services as an, attorney rendered in two suits in favor of one Austin, against said town of Georgia. Plea, non-assumpsit. Issue to the country. In this case, there were two bills of exceptions brought from the county court into this court, one of which was signed by the two assistant judges of the county court, only, and the other was, afterwards, signed by them and the judge of this court, who presided at the trial.

Ejectment, for a piece of land in Huntington. Plea, not guilty. Issue to the court. Upon the trial, in the county court, the plaintiff offered in evidence the copy of a record of a writ of attachment in his favor against one Kimball Marshall, a judgment and writ of execution thereon and a levy of said execution upon the land in question..

This was an action of assumpsit on a warranty, that a certain note, sold by the defendant to the plaintiff and made by one Benjamin Parker, was due and collectable. Plea? non-assumpsit and trial by jury.

<p>This was an action of assumpsit upon the following written guaranty:</p> <p>“Whereas, John Peck, of Burlington, in the county of “ Chittenden, holds the following claims against Horatio B. “ Barney, of Jerico, in said county, to wit: a note dated 13th “ May, 1830, for forty three dollars and thirty two cents, pay- “ able to said Peck or order on demand, with interest; ano- “ ther note, dated 24th June, 1831, for twenty six dollars and “ two cents, payable to said Peck or order, on demand and “ interest; also, a judgment founded on another note, dat- “ ed 2d September, 1829, for sixty dollars and thirteen cents? “ signed by said Horatio: Now, in consideration that the said " Peck will stay the execution that issued on the said judgment^ “ now in the officer’s hands, I Truman Barney, of said Jeri- “ cho, do agree (if said claims are not paid or secured by said “ Horatio, within six months from this date,) to secure or pay “ the same either on the carding or clothing works situated “ near Truman Galusha’s, in said Jericho, or out of demands “ in the hands of Charles Adams, Esq., placed there by said “ Truman to apply on notes that said Peck holds against “ said Truman.</p> <p>“ The said claims are to be secured in one of the above “ methods amply and sufficiently.</p> <p>“Dated at Burlington, this 2d day of July, 1831.</p> <p>“ Signed, - Truman Barney.”</p> <p>The plaintiff, in his declaration, .averred, that, in consideration of the defendant’s promise,contained in said guaranty, the plaintiff stayed the execution mentioned in said guaranty, and that said notes and judgment had not been paid nor secured by the said Horatio, and that the defendant had neglected and refused to secure or pay said notes and judgment, &c.</p> <p>Plea, non assumpsit. Issue to the court.</p> <p>Upon the trial in the county court, the plaintiff, to prove the isue on his part, offered in evidence the guaranty above set forth and the two notes specified therein. The execution of the guaranty was admitted by the defendant.</p> <p>The plaintiff also offered evidence tending to prove that he had stayed the execution, mentioned in said guaranty, in pursuance of the agreement of the parties, and rested his case.</p> <p>jrThe defendant insisted that the evidence thus introduced was insufficient to entitle plaintiff to recover. But the court decided that it was sufficient and rendered a judgment for the plaintiff to recover against the defendant the several sums specified in said guaranty and interest thereon, to which decision and judgment of said court the defendant excepted.</p> <p>We insist that, without the production of the judgment or execution described in the guaranty, the plaintiff’s damages should have been for the two notes only.</p> <p>The undertaking of the present defendant was as guarantor for H. B. Barney. He only promised to pay on default of H. B. Barney to pay or secure the demands in six months * *■ from that date. The defendant’s liability depends upon a contingency — the declaration must be special, and allege that H B. Barney has not paid nor secured the debts. 2 Camp. N. P. C. 215.</p> <p>The plaintiff has so alleged these matters in his declaration ; can he, then, dispense with the proof of them ? If, instead of suing the guarantor, he had sued the principal, he would have been required to produce his judgment and execution ; and is he entitled to recover on less evidence of the existence of the debt/ against the surety, than against the principal ?</p> <p>When he produces the execution he then offers prima facie evidence of the existence of the debt, and puts the defendant on proof, but, without proving the debt still existing, the fair presumption is that it is paid.</p> <p>The questions presented in this case are questions of evidence, merely, and may be resolved into two, viz :</p> <p>I. The rule of construction applicable to guaranties. This is liberal, and to be taken most strongly against the guarantor.</p> <p>Hence, it will be presumed that judgment was rendered for the whole amount of the note if rendered at all: , Fell on Guar. 129. Blasón v. Pritchard, 12 East’s R. 227. 2 Camp. 436.</p> <p>II. The remaining and most important question is as to the effect of the instrument as an admission of the party, or whether the plaintiff was bound to produce the record of the judgment to entitle him to recover on that part of the clain^? We say he was not.</p> <p>It is well settled that a recital in a deed estops the party from denying the truth of the matter recited. 9 Cowen’s R. 86, 120. Cro. Eliz. 756. 2 Stark. 30, 33.</p> <p>It is equally well settled that a recital in a receipt or other writing, not under seal, is prima facie evidence of the truth of the recital as against the party malting it.</p> <p>The effect of the ground assumed by the defendant, is, to deny what he has admitted under his own hand, viz : that there is a judgment. And then to put the plaintiff on the proof of it. But this he cannot do without first destroying the prima facie character of the writing by counter testimo- . ° J . ny. And, by the rule of construction above laid down, the court will presume the judgment was rendered for the amount of the note.</p> <p>If it were not, he may produce the judgment and show it off, it being equally in the power of both parties:</p> <p>Any other doctrine would, in case the record were lost, (as is the case here, in fact,) wholly defeat the plaintiff’s claim. Sherman v. Crosby, 11 Johns. R. 70. Ransom v. Adams, 17 Johns. R. 130. Ray fy Fenfiekl v. Leal Sy Leal, 14 Johns. R. 404. Burnap v. Patridge, 3 Vt. R. 144, and cases there cited. :</p> <p>If we are correct in these positions, it follows that the question results, finally, into one of mere damages, and they being assed at the lowest point at,which they can be presumed from the instrument, it lies not with the defendant to except. Bebee v. Steele, 2 Vt. R. 314.</p>

This was an action of book account, originally commenced before a justice of the peace, and came, by appeal, to the county court. Judgment to account having been rendered by the county court, an auditor was appointed, who afterwards reported ; That the parties came before him on the 15th day of March, 1839, and were heard with their allegations and proofs; that Scott exhibited, in the first instance, an account consisting of three items, to wit: “ March Term, 1838.

Assumpsit, for leaving the plaintiffs’ service before the contract, made between the parties, had expired. Plea, nonassumpsit. Issue to the country.

<p>This was an action of trespass on the case, to recover of the defendant damages sustained by the plaintiff, as he alleged, in consequence of the defendant’s having commenced and prosecuted, in the name of the plaintiff, without his knowledge or consent, two certain actions of ejectment in the circuit court of the United States, one of which was against Aaron Pease and others, and the other against the town of St. Albans and others, which actions were entered in said circuit court at a term thereof held at Windsor, in the district of Vermont, on the 21st day of May, 1827, and the defendants, in those suits, recovered judgments for their costs, which judgments were, as the plaintiff alleged, paid by him.</p> <p>Plea, not guilty — issue to the country.</p> <p>Upon trial in the county court, the plaintiff offered in evidence the record of the judgments recovered in the circuit court, set forth in his declaration, and introduced testimony tending to show that he had paid those judgments.</p> <p>The defendant also gave in evidence, two depositions of the defendant, taken to be used in a suit pending in Franklin county, in 1829, between the town of St. Albans and others and the plaintiff in this suit, which depositions tended to prove, that the defendant was employed by one Holloway Táylor, supposing him to be the agent of the plaintiff, to prosecute said suits in the circuit court; that he was not employed by the plaintiff, and that he never had any communication with the plaintiff relating to said suits. The defendant introduced several witnesses, whose testimony tended to prove that the plaintiff and said Taylor, át an early day — one witness said as early as the year 1800 — were joint owners of lands in St. Albans, and that the plaintiff also owned lands there in severalty; that sundry suits relating to their lands were brought in the state courts, and some in the circuit court; that some of these suits were in the name of the plaintiff alone ; that Taylor, in all these suits, appeared to be the acting man, kept the papers relating to the suits and exhibited them on trial; that these suits were brought after the year 1800 ; that the plaintiff was present, at times, and had knowledge of the suits; that afterwards Taylor and the plaintiff had a settlement and made a division of then-property, but the date of the settlement the witnesses could not recollect; that Taylor became embarrassed in 1809 or 1810, and that the suits in the circuit court were ended in 1810 '; that Taylor was not the agent of the plaintiff and did not act as such, nor bring any suits for him after the division and settlement before stated. One witness thought that suits were brought in the state courts after 1810, but could not state positively.</p> <p>The defendant also proved that Israel P. Richardson made out the writs in the suits complained of, but had no agency in them, after making the writs.</p> <p>Tho plaintiff then offered in evidence, a copy of a power of attorney from the plaintiff to said Taylor, dated the second day of October, 1800,authorizing the said Taylor to sell, lease," or in any other way, dispose of any of the plaintiff’s lands in said county of Franklin, and to act for the plaintiff relative to said lands in any proprietors’ meeting, and to do all other acts and things for the plaintiff about and concerning said lands, &c. And also offered a copy of a revocation of said power of attorney, dated the second day of November,</p> <p>1809, which power of attorney and revocation were severally signed and sealed by the plaintiff, witnessed by two witnesses, acknowledged before a justice of the peace and recorded in the records of the town of St. Albans, and said copies were severally certified, by the town clerk of St. Al_ bans, to be true copies of the record. The defendant objected to the admission of these copies, but the court overruled the objection and they were admitted.</p> <p>The defendant requested the court to charge the jury—</p> <p>1. That if the defendant acted in good faith in commencing and prosecuting the suits, he was not liable.</p> <p>2. That if they found that Taylor was the general agent of the plaintiff for a number of years previous to the commencement of the suits in the circuit court, it was incumbent on the plaintiff to show a revocation of the agency and a general notice of such revocation, or bring such notice home to the defendant.</p> <p>3. That if they found that Taylor was, for a number of years, the agent of the plaintiff, and that the defendant was employed by Taylor, as the agent of the plaintiff, to prosecute suits during his agency, then notice to the defendant of a revocation must, in fact, be shown, and that the record of such revocation was not, in point of law, constructive notice.</p> <p>4. That if Taylor acted, for a number of years previous to the commencement of the suits by defendant, as the plaintiffs agent, the jury had a right to presume that he so acted by the plaintiff’s approbation and consent, and, if so, the acts of Taylor would be binding on the plaintiff.</p> <p>5. That if they found that the suits in the circuit court were commenced by some other person, and that defendant acted only as counsel in court and in good faith, he was not liable; and that evidence to that effect would not support the allegations in the declaration.</p> <p>The court charged the jury, upon these points, that it was not enough for the defendant to show that he acted in good faith, merely, but that, if he commenced the suits by the direction of Taylor, professing to act as agent, he must show either that Taylor had authority from the plaintiff to institute the suits or, at least, that the defendant had sufficient reason, from the previous transactions of the parties, to suppose him to be duly authorized. As to the agency, the court charged that the parol evidence of Taylor’s acts, as agent of Bush, previous to Nov. 1809, became unimportant upon the production of the power of attorney, which showed that, down to that period, Taylor was the duly authorized agent of the plaintiff, but that it further appeared that the power was then revoked ; that, as a general rule, the power of an agent to bind his principal ceased when the agency was determined, but that notice was, in some cases, necessary; that, in the opinion of the court, the recording of the revocation was sufficient notice of the revocation to all who had not had dealings with Taylor in his character as agent; but, at all events, whether the defendant had had such dealings or not, if Taylor had not acted, or professed to act, as agent for the plaintiff, from 1809 or 1810, down to the year 1827, when the suits in question were brought, the defendant would, after that lapse of time, be bound to take notice of the revocation ; that if they found that subsequent to that period Taylor had acted as agent of the plaintiff in instituting or conducting suits in the name or behalf of the plaintiff, either by authority from the plaintiff or with his knowledge and permission, they would find for the defendant; but that, if he had ceased so to act for the space of fifteen years or more, after the revocation, and before the bringing of the suits in question, no further notice of such revocation need be given by the plaintiff,' and he was entitled to recover; that it was not necessary to show, in this case, that the defendant made the writs in the suits complained of, to enable the plaintiff to recover but that if he entered the writs in the circuit court, although they were made by another, and prosecuted them as the attorney of the party, he was liable, if he did not show a justification for so doing. The jury returned a verdict for the plaintiff, and the defendant excepted.</p> <p>1. If the plaintiff acted only as counsel in court, and had no agency in commencing the suits and acted in good faith, he ought not to be made chargeable. But, if liable at all, proof that he acted as counsel in court does not support the allegation that he commenced the suits. Stone v. Swift, 4 Pick. 388. The court, therefore, erred in not charging the jury as requested, on this point, and by charging that, if he entered the suits in the circuit court and prosecuted them as the attorney of the party, he was liable.</p> <p>2. The evidence introduced by defendant, is sufficient to establish the agency of Taylor. Swift’s Dig. 328. 2 Kent’s Com. 614. 5 East, 400. This point was decided in this suit at the last term of this court. This being shown, it devolved on plaintiff to- show a revocation of this agency. When a fact, in its nature continuous, is shown, it rests on the adverse party to show its termination.</p> <p>3. The copies of the power of attorney and of the revocation thereof, certified by the town clerk, were inadmissible to show a revocation, or for any other purpose. The common law requires the original to be produced. It is only when a conveyance of real estate “ shall be made by virtue of any power of attorney,” that the statute authorizes such power to be recorded ; and the recording of a paper, which the law does not require to be recorded, does not make a copy evidence. The object of the statute is to place upon the record the whole evidence of a title to real estate, and the use of a copy, as evidence, should be strictly confined to the purpose for which the original is required to be recorded. The copy may be read in evidence only “ when the original cannot be produced,” and “in the same manner as the copy of the deed made thereby.” The copy of the deed itself,had one been executed, could not be read in this case, since the parties to a deed must produce the original. The copy of such power is only evidence in support of the deed and for all collateral purposes common law evidence must be produced. Stat. 170, §9, 172, $2. Lessee of James v. Gordon. 1 Wash. C. C. R. 333. Brooks v. Marbury. 6 Peter’s Cond. R. 223. 11 Wheat. 78. '</p> <p>4. Notice of the revocation was necessary ; — general notice to the community at large and actual notice to those who had dealt with the principal through the agent. Pothier on Ob. 334. Spencer &/• White v. Wilson, 4 Mun. R. 130. Harrison’s case, 12 Mod. 346. Salte v. Field, 5 Term R. 211, per Buller J. 5 Kent’s Com. 644. 18 Johns. R. 487.</p> <p>5. The recording of the revocation is not, in point of law, notice. It might, be constructive notice to any one who should subsequently take a deed of land executed by Taylor, in the name of Bush, but cannot have that effect for any purpose where a written authority is not necessary to enable the agent to bind his principal. It does not give that general notice which the interests and safety of community require. As well might a commercial partnership record their dissolution. It does not appeal that Taylor himself ever had notice of the revocation of his powers.</p> <p>6. The court erred in not instructing the jury, agreeably to the third request,that actual notice was necessary, should they find that the defendant had had previous dealings with Taylor as agent. On this point the charge is evasive and also erroneous in instructing the jury that the defendant would, after that lapse of time, be bound to take notice of the revocation. This instruction makes lapse of time notice in law, whereas it is but evidence,from which the'jury might,or might not, presume notice. The evidence ought to have been left to the jury together with the defendant’s affidavits, (which must all be taken together) that he supposed Taylor still authorized to retain him.</p> <p>I. That the defendant is liable in this action, unless he can show that Taylor was the legally authorized agent of Bush, has been settled by the previous decision of the court in this case ; but, if this question is to be again agitated the court, are referred to the cases of People v. Bratt, 6 Johns. R. 318. S, C. 7 Johns. R. 539. Bratt v. Walton Sf Vanhorn, 8 Johns. R. 230. Hotchkiss v. Leroy &r Rogers, 9 Johns.R. 142. Bunton others v. Noyes, 6 Johns. R. 296. Sellon’s Prac. 17, 18. 1 Hovendon on Fraud, 42. Wrightv. Catsle, 3 Mer. R. 12. 2 Cowen’s R. 589. Gorham v. Gale, 7 Cowen’s R. 739.</p> <p>II. Copies of Bush’s power of attorney to Taylor and revocation, were properly admitted as evidence.</p> <p>1. This power of attorney was a deed. 2 BI. Com. 296, in note. The King v. Fauntleroy, 9 C. L. R. 454. S. C. 2 Bing. R. 413.</p> <p>2. It was a deed of land within the meaning of the 20th sec. of the act of 1797, ( stat. 414, 15.) relating to town officers, and therefore properly recorded ill the town clerk’s office. The 9th sec. of the act of 1797, relating to conveyances, (stat. 170) clearly implies that a power of attorney may be recorded in the town clerk’s office ; and the 2d sec. of the act of 1818 (stat. 172) excludes all deeds, made by virtue of any power of attorney, from being given in evidence, unless such power shall have been recorded in the office where such deed is recorded.</p> <p>3. If the power of attorney was a deed relating to land and properly recorded, the revocation of that power was a deed relating to land and properly recorded. The revocation is incidental to and part and parcel of the power. The law reserves to the grantor, in a power of attorney which conveys no interest to the grantee,the power of revocation, (Paley on Agency, 155) and the exercise'of this power of revocation must be attended with the same forms and solemnities as the original power. If the original power was by deed, the revocation must be by deed. Cald. on Arb. 31. Jac. L. D. title, Revocation. 4 Cruise, 210, title, 32, chap. 19, §43.</p> <p>4. The certificate of the town clerk is legal evidence that the copies of the power of attorney and revocation were true copies. 1 Phil. Ev. 310. Black v. Braybrook, 3 C. L. R. 226. Williams v. Wetherby, 2-Aik. R. 336. 2 Saund. P. and E. 317. And office copies of deeds thus recorded have, in this state, always been admitted in all questions where the party producing them had not the custody of the originals. Williams v. Wetherby, 2 Aik. R. 336. The statute makes it the duty of the town clerk to record all deeds and conveyances relating to lands, and to give copies of such records, but there is no statute making such copies evidence. The uniform practice of this court has been, to admit office copies of all papers properly recorded, when the originals were not supposed by law to be in the custody of the party producing them, without any evidence that the party offering them could not produce the originals, and the act of 1797, allowing a power of attorney to be recorded, merely makes office copies of the power evidence in the same manner as the copy of a deed executed by virtue of such power is evidence.</p> <p>5. Granting that a certified copy of the record of the revocation is not evidence that Taylor’s authority under that power was revoked, yet, as the fact of the revocation was proved by more than fifteen years «ser,this record was proper evidence to prove the notoriety of such revocation, upon the same principle that notice in a gazette is evidence of the dissolution of a partnership or revocation of an agency, to all persons who had not had previous dealings with the parties in their capacities of partners or agents; and, in this case, it does not appear that the defendant ever had any dealings with Taylor in his character as agent, before his authority ceased. Paley on Agency 142, 143, 158. 1 Phil. Ev. 325. Lansing v. Gaines Ten Eyck, 2 Johns. R. 300,</p> <p>If publication in a newspaper would be evidence of notice of the dissolution of a partnership or the revocation of an agency, it would seem that the recording of a revocation in the town clerk’s office ought to be deemed notice to the defendant of such revocation. If so, the certificate of the recording officer that there was such a record in his office was, prima facie, evidence of that fact.</p>

<p>This was an indictment for arson, in two counts, as follows :—</p> <p>“ State of Vermont, I Be it remembered that at the county “ Chittenden County. 3 court, begun and holden at Burling- “ ton within and for the county of Chittenden, on the last “ Tuesday of August, A.D. 1839 ; — The grand jurors with- “ in and for the body of the county of Chittenden aforesaid, “ now here in court duly empannelled and sworn upon their li oaths present, that Joseph Roe of Burlington aforesaid, on “the 23d day of June, A.D. 1839, with force and arms, at “ Burlington aforesaid, a certain meeting house, then and “ there situated, belonging to the first Calvinistic congrega- “ tional society in Burlington aforesaid, erected for public “ use, to wit: for the public worship of Almighty God,, did 1‘ then and there wilfully, maliciously and feloniously set “ fire to and burn, contrary to the form, force and effect of “ the statute in such case made and provided, and against “ the peace and dignity of the stale. •'</p> <p>“ And the grand jurors aforesaid, now here in court duly “ empannelled and sworn as aforesaid, upon their oaths fur- “ ther present, that the said Joseph Roe, on the 23d day of “ June, A.D. 1839, with force and arms at Burlington afore- “ said, a certain meeting house then and there situated, called “ and known by the name of the white church, a building “ erected for public use, to wit, for the public worship of “ Almighty God, did then and there wilfully, maliciously and “ feloniously burn, contrary to the form, force and effect of “ the statute in such case made and provided and against “ the peace and dignity of the state.”</p> <p>Plea, not guilty.</p> <p>Upon the'trial in the county court, evidence was given to the jury tending to prove, on the part of the state, that a little before three o’clock, a. m., on the morning of the 23d day of June, 1839, the meeting house in said Burlington, usually known and designated as the white church, was discovered to be on fire in the belfry and was consumed by fire, and that, just before the fire was discovered, the bell of the white church was heard to ring from fifteen to twenty strokes. On the cross-examination of the witnesses, the respondent’s counsel proposed to prove that on the same morning after the white church was burnt, the bell of the brick church was rung, that the bell was set, as it is called, and then allowed to fall and ring of its own weight without any interference of the bellman and that the ringing in both cases was alike and stated that the object of this testimony was to show, from the similarity in the manner of ringing, that the white church bell was rung accidentally; but this, being objected to on the part of the state, was excluded by the court.</p> <p>Td prove the formation and existence of the society, as charged in the first count in the indictment, the prosecutor offered in evidence an original paper, dated January 10, 1810, purporting to be articles of association, signed by upwards of seventy inhabitants of said Burlington, in which paper the subscribers thereto set forth the object of such association, as follows;</p> <p>£! We believe it a\ duty, reasonable in itself, that men, as ££ moral agents, made capable of social acts and relations, ££ should adopt religious principles and form themselves into “ societies for the support of the gospel, and in order to a- ££ void those schisms, which frequently arise in societies, ££ founded on what the world calls liberal principles, we view ££ it of importance that every religious society should estab- “ lish, as a basis or foundation of their belief and mode of “ discipline, a system of'religion.</p> <p>££ Therefore, we hereby voluntarily form ourselves into a ££ congregational society, under the calvinistic order and dis- “ cipline, hereby covenanting to each other that we will, so “ far as our abilities will permit, support a preached gospel “ in said town of Burlington, and that we will, at all times, “ cultivate that harmony, friendship and brotherly love “ which the benevolent principles of our religion dictate.” Said articles contained provisions for holding the first meeting, appointment of officers, &c.</p> <p>The prosecutor also offered parol testimony tending to prove, that, immediately after the organization of the society, it took the name of the first Calvinistic Congregational Society in the town of Burlington ; that it had ever since done its business in that name, made contracts and commenced suits, and been known and recognized by that name and still is.' This evidence was objected to on the part of the respondent. But the objection was overruled and the evidence was admitted by the court.</p> <p>The prosecutor offered, as a witness, one Silas Spear, and proposed to prove that after the burning of the Catholic church in Burlington, in May 1838, the witness was in company with the respondent and one Francis Roe, a cousin of the respondent, and that they made threats that other buildings or churches would be burnt in consequence of the Catholic church having been burnt by the yankees, as they said. The counsel for the respondent objected to their giving in evidence the threats and declarations of Francis Roe and the court decided that the declarations and threats of Francis Roe were not evidence against Joseph Roe except so far as he was present and participating in them and that to that extent they were admissible. The witness, having been sworn, testified that Joseph Roe and his cousin Francis Roe were in company with the witness, and that in a conversation with them about burning the catholic church the witness said to them that he thought the catholic church was burnt by their own people and that Joseph Roe said he thought not, and that Francis used threatening language and said the yankees would pay two for one for that. Joseph said nothing on that subject and made no reply to it.</p> <p>To prove that the respondent was at the meeting house yard and near the meeting house just before the alarm of fire and about the same time, Mrs. Hibbard was introduced as a witness, who testified that she lived about twelve rods east of the turn-stile on the north side of the church yard, that on the morning of the 23d June last, at about three o’clock, she heard, as she thought, a faint cry of fire, and that she looked out of a chamber window on the noith side of the house and saw a man coming from the direction of the turn-stile in the church yard, and thought he passed through it, and that he passed easterly under her window; that she had known the respondent for several years before, and that from his size and walk, she thought it to be the respondent, though she did not think of it at the time he passed. She also described the walk of the respondent as being somewhat peculiar and described it as a strait forward gliding walk, and that the walk and appearance of the person who passed under her window were the same which she knows the respondent to have. She also testified that she thought the person she saw had on dark pantaloons, light vest and she thought a dark coat or round about, though of this the witness was less confident.</p> <p>John J. Scott was introduced on the part of the prosecution and testified, among other things, tliat on the morning of the 23d June last, being the same night on which the white church was burnt, he had occasion to be up at night on account of illness and that, just before two o’clock in the morning, two men passed his house, and that he was at the side of the fence as they passed, that one called the other Joe; that he had been acquainted with the respondent for some years and thinks that one of them was the respondent, and that they had some conversation which excited his suspicion, a little, that all was not right, and he followed after them, as they passed on easterly by his house, and that they stopped against the pottery near the brick church; that they went from there and he followed them to the comer by Mrs. Wadsworth’s, near the white church which was burnt, when they separated, and that Joseph went south and entered the meeting house yard on the west side and the other man entered the yard on the north side and they then came together and stood in front of the meeting house and soon separated and one went either into the meeting house or around it, and the other passed off from the meeting house towards Mr. Seymour’s shop, which shop stood some ten rods north east of said meeting house. On cross-examination, the witness admitted that he had testified in this cause before the court of enquiry, and omitted all that part of his present testimony giving an account of the respondent and the other person, after they left the pottery, and, on inquiry by theprosecutor for the reason of this omission, he stated that he had been threatened and was afraid of personal injury and violence.</p> <p>The prosecutor, to sustain the testimony of this witness, offered several witnesses to prove that his general character for truth and veracity was good, which was objected to by the counsel for the respondent, but the objection was overruled and the testimony admitted, and several witnesses testified to that effect.</p> <p>Mrs. Hibbard and John J. Scott were the only witnesses who. testified that they saw the respondent near the church or-meeting house, about the time'the alarm of fire was given, but it did appear, from his own confession, that he passed up pearl street before the alarm was given, and was opposite Judge Foote’s, which is on a hill, distant half a mile from the meeting house, on his way home, when he discovered the house to be on fire.' It also appeared, on the trial, that the church yard was frequented by foot passengers as they had occasion to pass across it and in that direction.</p> <p>Parol testimony was given, on the part of the prosecution, tending to prove the organization of the society, in 1810, under the articles of association; that records were kept and that said meeting house was erected by the society for the public worship of Almighty God, and that it had, at all limes thereafter, been under the control and direction of the society, acting in the name of the first Calvinistic congregational society in the town of Burlington, and that the interest in the house was in the pew-holders.</p> <p>The court, among other things, charged the jury, that their first enquiry would be whether- there had been a felonious burning of this house by the hand .of an incendiary, and that, of this, they must be satisfied, beyond a reasonable doubt; that the law did not require this to be made out by positive and direct testimony, as contended for by the counsel for the respondent, but that this, like any other fact, might be proved by circumstantial evidence alone, provided it was satisfactory and convinced them of the fact, beyond a reasonable doubt.</p> <p>On the subject of circumstantial evidence, the respondent conj;enc|eci; assuming all the circumstances in the case to be true, still, he might be innocent. But, the jury were told, by the court, that no general definition could be given of what circumstances amounted to satisfactory evidence of the guilt of the accused, but that each case must depend upon its own circumstances; that absolute, mathematical, certainty was not required, but that their consciences and understanding must be satisfied, and there must be a moral certainty, to the exclusion of every reasonable doubt; that they were not to acquit the prisoner on slight and fanciful conjectures; that this would be a dereliction of duty, which they were sworn "to perform, but that it was their duty to give the whole evidence in the case a full and impartial consideration, and that it was not their duty to convict the prisoner unless the evidence in the case excluded from their minds all reasonable doubt as to his guilt.</p> <p>On the subject of the testimony of Silas Spear, the respondent contended that it ought to be rejected entirely. But the court charged the jury that it was not their duty to give the declarations of Francis Roe any’ effect against the prisoner, unless he was present and participated in them, and that, to the extent of his participation, they would be evidence against him, and no further.</p> <p>The counsel for the prisoner asked the court to charge the jury, in regard to the testimony of Mrs. Hibbard, that it was too slight to be regarded by them ; but the court instructed the jury that her evidence was pertinent and to be weighed by them in connection with the other evidence in the case.</p> <p>In relation to the testimony of John J. Scott, the counsel for the respondent insisted, that, if it was admissible at all, it was entitled to the lowest degree of credit and that he was to be regarded by the jury as a man capable of committing perjury, and that his testimony was not to be regarded at all, unless supported by other evidence. On this point the court charged the jury, that the evidence of Scott was to be received and weighed in the case ; but that if he had, knowingly, on a previous examination of this case, omitted any material fact, it should detract very greatly indeed from his credit, and that the question of his credit was finally with them, and that, in weighing his testimony, they had a right to take into the account his appearance on the stand, the testimony that had been given in court jn regard to his character, and how far he was corroborated by other witnesses, and, under all the circumstances of the case, give it such weight as they thought it deserved.</p> <p>The jury were further charged, that if they found, from the evidence, that the association which was formed in 1810 into a congregational society under the calvinistic order and discipline, took to themselves the name of the first Calvin-tic congregational society in the town of Burlington, and did their business in that name and. was known and recognized by that name, and built, owned and occupied the said meeting house, as a house of public worship, up to and at the time of its being consumed, as a society under that name, there was no variance between the evidence and the first countin the indictment, notwithstanding they should find that the several pews belonged to the respective pew-holders; and if they found these facts', and were 'satisfied, beyond a reasonable doubt, that the prisoner at the bar was knowingly and intentionally guilty of setting fire to and burning the said house, as the government had attempted to prove, they might return the prisoner guilty upon the first count in the indictment, and, in that event, they would have no occasion to pass upon the second count. But if, on the other hand, they should not be satisfied from the evidence that the society, after their organization in 1810, took to themselves the name of the first Calvinistic congregational society in the town of Burlington, and did their business in that name and was known and recognized by that name, and erected, owned and occupied the said meeting'house as a house of public worship up to and at the time it was burnt, as a society under that name, they might, if they found the facts in the second count in the indictment proved to their satisfaction, return a verdict of guilty under that count ; but if, from a careful examination of the whole evidence in the case, they were not satisfied, beyond a reasonable doubt, of the guilt of the respondent, they would return a verdict of acquital.</p> <p>The jury returned a verdict of guilty upon the first count in the indictment.</p> <p>The respondent, moved the court below for a judgment of acquital on the whole indictment, notwithstanding the verdict, “ because the general charge, as collected from the “ whole indictment, is, that the respondent feloniously burn- “ ed a meeting house in Burlington, erected for public use, “ and the jury having found that he was not guilty of the “ charge, in its most general terms, he cannot be adjudged “ guilty of the same burning by reason of a more specific al- “ legation.</p> <p>The respondent also moved in arrest of judgment for the insufficiency of the first count in the indictment.</p> <p>The county court decided that the respondent should take nothing by his motions.</p> <p>To the foregoing decisions and charge of the court the respondent excepted.</p> <p>1. It was incumbent on the state to prove that the church was set on fire by design, and that the respondent was the criminal agent. The evidence showing that the ringing of the church bell, just before the fire was discovered, tended to show some person in the church about the time the fire must have originated, and the evidence that the respondent passed in the vicinity of the church, soon after, tended to show that the person in the church was the respondent. The evidence offered, on cross-examination, by respondent, that the bell had been left set up (as the practice is) and turned by its own weight, and thus the ringing was accidental, ought not to have been rejected, as it tended to reconcile the ringing of the boll with the accidental burning of the church, and also tended to rebut the presumption of the presence of the respondent.</p> <p>2. The testimony of Silas Spear should have been excluded, or the jury instructed to lay it out of the case. The case shows that the respondent said nothing objectionable, and the declarations of Francis Roe are not admissible without first showing a community of design to carry out the criminal purpose, and then only such as accompany and give character to the act. 2 Stark. Ev. 53. The rule that declarations made in the presence of a party and not denied are admissible against him, is limited. When such declarations affect the rights or implicate the conduct of the party,bind the truth or falsity of which he is supposed to know, so that he has a strong inducement to deny them, if untrue, they may, in civil suits, be admissible, but not otherwise. Vailv. Strong, 10 Vt. R. 457. In criminal cases the rule is more strict. The declarations must be direct and explicit, and come from the respondent himself. Rex v. Appleby, 14 Com. L. R. 153. Rex v. Telicote, 3 Com. L. R. 442. As the declarations of Francis Roe were made to a third person, without any allusion to the respondent', he was not called on for a reply and cannot be prejudiced by his silence. A direct threat of the prisoner, when proved, is but circumstantial evidence, and that too of a slight character. Bullock v. Beach, 3 Vt. R. 73. It is a principle of presumptive evidence, that every circumstance must be clearly and expressly proved. A circumstance cannot be proved by circumstances, nor can a circumstance be built upon a presumption. Swift’s Ev. 137.2 Burr. 1072.1 Stark. Ev. 501. The jury were left to infer the respondent’s assent from his silence and his guilt from his assent. The court erred in charging the jury that the respondent was bound by such declarations, to the extent ,of his participation, when there was no evidence tending to show any participation, on his part, whatever, but directly the contrary. Birney v. 'Martin, et al. 3 Vt. R.236.</p> <p>3. The court erred in charging the jury thát Scott’s “ credit was finally with them.” When a jury find, from the admission of a witness on the stand, that he has committed perjury, in relation to the same matter, they ought to reject his testimony. An oath is the legal test of truth and the ■credit due to testimony rests on the presumption that men, •on oath, will declare the truth. Whatever destroys this presumption destroys the testimony. Other crimes, when attributed to a witness, raise only a presumption that he may not regard his oath, but when perjury is shown, the fact itself appears. It may be said that a conviction is the only evidence of guilt. But the cases, on this point, are, where there was a record of conviction, or where the witness refused to declare his own infamy, or where other evidence was rejected for the reason that a witness is not bound to come prepared to defend against particular acts; but when the witness admits the fact, none of these reasons apply. Titus Oates’ case, 4 St. Tr. 47. Elizabeth Cummings’ case, 10 do. 390.</p> <p>But, if not rejected entirely, as matter of law, the jury have not an uncontrolled discretion over the testimony. It cannot be credited, unless supported by other witnesses, or if any credit is to be given to it, it is the lowest degree. This differs from the case where the general integrity of the witness is shaken. The very fact appearing that the witness is capable of perjury the presumption that he declares the truth ceases. “ Falsum in uno falsum in omnibus.” 1 Stark. Ev. 524. Dunlap v. Patterson, 5 Cowen’s R. 243. Allen v. Young, 6 Monroe, 136, cited in Gra. N. Trials.</p> <p>4. Evidence of the good character of Scott was improperly admitted. The rule that general character must be attacked before evidence is admissable to support it, is too well settled to require authority. This rule is admitted in Stephenson v. Walker, 4 Esp. R. 50, in which case evidence was not admitted in support of the character of witnesses in court, but in support of the character of attesting witnesses who were dead, and to whom fraud had been imputed by another of the subscribing witnesses, so that the credit due to the attestation rested, not upon the oath, but solely on the character of the deceased witnesses. In the celebrated case of JollilPs will, (1 W. BI. R. 365,) nothing is decided but that the party calling the attesting witnesses may disprove facts to which they testify ; but if evidence of character was introduced, as stated by Lord Kenyon, in Stephenson v. Walker, the case shows that the witness, who drew the will and had given his deposition, was dead. These cases are put expressly on the ground that fraud being imputed and the witnesses being dead, the jury, not having the witnesses before them, had not the ordinary means of judging of their character. 1 Phil. Ev. 232. Bishop of Durham v. Beaumont. 1 Camp. R. 207. In Bex v. Clarke, 3 Com. L. R. 333, the evidence was confined to character acquired after the commission of the larceny by the witness. The principle contended for was directly decided in Bussell v. Coffin, 8 Pick. R. 143, and in Bogers v. Moore, 10 Conn. R. 13. In the former case, Parker, Ch. J., says it never was decided otherwise. If a witness knowingly swear to two contradictory stories, at different times, supporting his character adds no weight to his testimony, as it adds as much to one relation as to the other, and contraries cannot be true. “ Allegans contraria non est audiendus.” Gilb. Ev. 287.</p> <p>5. The paper offered in proof of the existence of the society was inadmissible, as the name therein given to the society is not the same as that in the indictment. The society having taken a name by the articles of association cannot change it, at least without a vote of the society. The record was the best evidence of the name under which the society transacted its business. . The words, u the town of,” in the name, as proved by parol, being omitted in the indictment, there is a variance. 3 Stark. Ev. 1577. 2 B. & P. 281. Str. R. 787. 2 B. & Al. 756. 2 Car. & P. 474. 2 Russ, on Cr. 707.</p> <p>6. The court erred in not charging the jury, as requested, upon the rules of the presumptive evidence, that, however numerous and strong the circumstances tending to indicate guilt, they avail nothing unless the corpus delicti be first fully and clearly established; that every circumstance relied on must be clearly established by direct proof, and to the same extent as if the whole issue rested on such circumstances ; that a circumstance cannot be proved by circumstances ; that a presumption cannot be built on a presumption. These rules are binding on courts and jurors, and experience has shown their necessity. 1 Stark. Ev. 501, 481. Swift’s Ev. 137. 2 Burr. 1072. People v. Hennessey, 15 Wend. R. 147.</p> <p>7. The court erred in telling the jury that the organization of the society was proved, when it should have been left to them to find the fact, and also in instructing them that if they found “ these facts,” (before detailed in the charge,) entirely omitting to notice the organization of the society, to find a verdict against the prisoner. ' The legal existence of the society is essential to the charge 'and must be proved as alleged. Tracy et al. v. Swartioout, 10 Pet. R. 80. TJ. S. v. Tillotson, 6 Pet. Good. R. 507. Tufts v. iS'eabury, 11 Pick. R. 140. Morton v. Fairbanks, id, 368. Fisher v. Duncan, 1 Hen. & Mum. 563. Commonwealth v. Briggs, 5 Pick. 429. It was error, also, to charge that the proof supported the indictment, notwithstanding the jury should find that the several pews belonged to the respective pew-holders, when the evidence showed tc that the interest in the house was in the pew-holders,” without instructing them what the relative interests of the society and pew-holders must be to maintain the indictment. To sustain the indictment the society must have possession suojure, which the case does not show. Rickman’s case, 2 East’s. P. C„ 1034. Glandfield’s case, id. 1033, R. v. Spalding, Leach, 248. Rex v. Holmes, Cro. Car. 376. 2 Stark. Ev. 65-69.</p> <p>8. The indictment is defective and judgment ought to be arrested. The averment of ownership is material, and ought to have been coupled with an averment giving the society a legal existence. These associations, though under a general law, are strictly private corporations, and the court cannot take judicial notice that the society is an association for the purpose named in the statute, or that the provisions of the statute have been complied with. 7 Wend. 109, 111. id. 377, 378.</p> <p>The ownership is improperly described. The word,£: of,” cannot be supplied by the words, ££ belonging to.” The word “ belonging” is descriptive of title or general property, and not of that possession necessary to sustain the indictment. Arson is a crime not against the property but against the possession or habitancy and the statute only extends the subjects of arson. Under the English statute the ownership must be alleged in another, or possession in the prisoner, with an averment that the burning was with intent to defraud a third person. Rex v. March, 2 Russ, on Cr. 490, note. The word,££ of,” by technical use, is peculiarly descriptive of possession coupled with that present interest necessary to maintain an indictment, and, having acquired a technical meaning, cannot be supplied by other words, especially as the statute has adopted the technical language. Stark. C. PI. 377, 380. 2 Hale P. C. 182. 1 Hale P. C. 450, 628. Cro. Eliz. 489. 4 Hawk.'49-50. id. 26,39.</p> <p>9. The prisoner is entitled to an acquittal, non obstante veredicto. As matter of right the respondent was entitled to a verdict, either for or against him, on all the counts. The record shows a verdict on the first count, and upon the second, he may be again arraigned, after having suffered the penalty of the law under the first. Even if this proceeding would operate a discontinuance of the second count, yet the r • • i subject matter is still open to a new indictment, and, in either case, a plea of autrefoits acquit could not be interposed, as such plea must set forth a verdict and judgment thereon.</p> <p>A verdict on the second count was important, as an acquittal on a defective indictment is a good bar, unless it appear that the acquital was founded on such defect. As the jury were instructed, in one event, to take no notice of the second count, it is, at least, a mis-trial and a new trial ought to be- granted.</p> <p>If the proceeding amounts toan acquittal on the second count, then the verdict is bad for repugnancy. A conviction on the specific charge is repugnant to an acquittal on the more general charge. 1 Ch. Cr. Law. p. 169, 251, 440, 641. Hawk. b. 2, Ch. 47, 55.</p> <p>D. French, States Attorney, and C. D. Kasson, for prosecution.</p> <p>I. It does not appear, from the exceptions, how the ringing of the bell was, in any wise, material to the issue.</p> <p>II. The testimony of Silas Spear, as offered, was proper to show malice. Phil. Ev. 76, 7. 1 Stark. Ev. 491-2, 451. 2 do. 53, 54. Bullock v. Beach fy Clayes, 3 Vt. R. 75.</p> <p>The facts sworn to by him were fairly left to the jury.</p> <p>III. The testimony of Mrs. Hibbard was manifestly pertinent, and properly submitted. It went to the knowledge, which is all any one can swear to.</p> <p>IV. As to Scott’s testimony ;—</p> <p>1. It was competent for the prosecution to sustain him, by evidence of good character, when impeached on cross-examination. 3 Stark. Ev. 1757-8. Rex v. Clarke, 2 Stark. C. 241. 3 C. L. R. 333. Rex v. Teal, et al. 11 East’s R. 307, 10-11. 1 Stark. Ev. 147, 148, 524.</p> <p>2- There was no disagreement between the charge of the court and respondent’s request, except it be as to the extent to which Scott should be deemed culpable, or subjected to infamy. The case itself shows that he wanted the intent, the will, which constitutes a crime, in withholding a part of the trutli when he- first testified, for he acted under duress when he withheld the truth, and against his will.</p> <p>V. A more important question arises in relation to the ownership of the church. Only two questions here arise.</p> <p>Was the evidence competent, in kind, to show it? and was it sufficient in degree !</p> <p>1. The exceptions do not show that any other evidence existed than what was introduced.</p> <p>Hence, it will be presumed that what was offered was of the highest nature in existence, which is all that can be required to prove thefact. 1 Ch. Crim. L. 462.</p> <p>2. The jury have, by their verdict, found it sufficient in degree.</p> <p>As to the variance in the name of the society, we think the question cannot arise, as the jury passed upon that very fact.</p> <p>But even if it do, we think it a perfect answer to say that the original articles of association do not name the association at all. So that they were at liberty to- take, as they did, a name by which they would be known. The pretended name, in the articles, is merely descriptive of their religious tenets. The other branch of this question more properly arises under the motion in arrest. 3 Chit. Crim. L. 870. 2 Russell on Crimes 493-4. Angel & Ames on Corporations, 56.</p> <p>VI. The corpus delicti, we contend, only relates to the condition of the subject — as the man is dead — the house is burnt, &c.</p> <p>If the rule be extended so as to require positive evidence that the man is not only dead but murdered — or the house not only burnt but fired, feloniously, it must necessarily exclude circumstantial testimony altogether, for who could swear that he saw the man murdered or the house fired, unless he could also swear he saw the guilty one commit the act. There could seldom be a conviction had, under such a rule. But we understand this rule to be already settled in a case decided in Addison county, not reported. 1 Gilbert’s Ev. 898-9. 1 Stark. Ev. 480, 510.</p> <p>VII. The charge, in relation to circumstantial evidence, is fully sustained by Starkie an'd other writers. 1 Stark. Ev. 20, ( 21, 480, et seq. 509, 510.</p> <p>VIII. No question can arise under the charge as it relates to the second count, whereon the respondent was not found guilty.</p> <p>IX. The motion for judgment non obstante veredicto we think is obviated by the direction given to the jury, and to the trial, by the court. The court expressly charged the jury that if certain facts were found they need not go beyond the first count, thus laying the second count entirely out of the case, which is equivalent to a nolle prosequi, as to that count. So the case stands the same as though there were never but one count in the indictment,.</p> <p>X. The grounds for the other motion in arrest, are;—</p> <p>1. Repugnancy, in alleging an ownership to property for public use. Unless this be repugnant it is no error. The term “ public” is not a technical, but a popular word. A church, a school-house, a court-house, a state-house, and & poor-house, are all buildings for “public use.”</p> <p>And can it not with propriety be said, that they “ belong to” a society, school-district, county, town, or state ? All these are so many “ publics,” who own and use the buildings. 1 Chit. Crim. L. 539.</p> <p>2. The charge of ownership, if bad, may be rejected as surplusage. If it be repugnant, it is because it is impossible. If it be impossible it need not be proved, and may, of course, . be rejected, unless it is so connected with the substantial part of the charge as not to be capable of division.</p> <p>Here it is a distinct matter, and is merely cumulative of the description. 2 Russ, on Crimes 704, 705, 707.</p> <p>In the first count, it is alledged that the building is 1. a meeting house. 2. erected for - “ public use.” 3. for the “ worship of Almighty God.” and 4. that it belongs to a particular society.</p> <p>Now the jury have found all thes'e facts, and all but the last are admitted to be proper allegations.</p> <p>The last, therefore, if true, as the jury say it is, cannot vitiate. For, if true, it cannot be repugnant to the other truths. Arch. PI. & Ev. 30-1. Haw. P. C. Chap. 25, <§,. 62.</p> <p>The charge of the judge and the evidence admitted were correct. “ Belonging to” and “ the property of” are synonymous terms. They are both oí possessive signification, only,, and so long as the society mentioned were in possession, it is a sufficient proof of the averment.</p> <p>As to the property being in the pew-holders, see Hammond’s N. P. 204.</p> <p>Plan, showing the localities mentioned in Scott’s testimony, and the testimony of other witnesses.</p> <p> </p>

This was an action of debt, in three counts. In the first count the plaintiff alleged, in substance, that heretofore, to wit, on the 21st day .of March, 1835, an agreement was made between the plaintiff and defendant, by which the defendant agreed to convey to the plaintiff, on the 23d day of March, 1835, the farm on which the defendant then lived, lying partly in Shelburne and partly in St. George, by a deed of warranty, except so much of said farm as the defendant held…

This was an action of book account. There had been judgment to account, in the county court, and a reference of the case to an auditor, who reported, that the plaintiff’s claim was for services performed for one Wm.

This was an indictment founded upop the statute of 1827, entitled,££ An act to provide for the support of schools,” for the neglect of the defendants to raise the three cent tax directed by said act. Plea, not guilty, and trial by the court, by agreement of the parties.

This was an action of book account, brought from the county court to this court, at the January term, 1839, by exceptions to the decision of the county court accepting the report of auditors and rendering a judgment thereon for the plaintiff.

This was an action of assumpsit in two counts. The first a special count declaring on a contract relative to the sale of a lot of land in Hinesburgh; the second, a count for money had and received. Plea, non-assumpsit and a set-off. Issues to the country.

This was an action of book account, originally commenced before a justice of the peace, and came, by appeal, to the county court.

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

Trespass, upon a lot of land in St. Albans. Plea, not guilty. Issue to the country.

<p>The orators, in their bill, stated, in substance, that, on the 10th of March, 1825, Eli N. Johnson executed a mortgage of certain land and buildings, in St. Albans, to the defendants, to secure six notes, of that date, -of $100 each, payable in beef cattle, on the first day of November, or in grain, on the first day of March, following, one note annually ; that on the first of March, 1826, Johnson conveyed a part of the same land to N. B. & H. Wells, who conveyed a part to Watson ; that, at a session of the supreme court, at Burlington, in January, 1830, the present defendants exhibited their bill of foreclosure, against Johnson, Wells and Watson, on said mortgage, of which they had due notice, but made no appearance ; that they took a decree of foreclosure, and, by said decree, $415,72, being the amount then due on the four first notes, and the cost, $24,67, was ordered tobe paid by the first Tuesday in January 1831, with interest. Also, $ 129,84 in grain or in money, on the first day of March, 1830, being the amount of the fifth note; and $ 133,84, in cattle or in money, Nov. 1, 1830, or $135,84, in grain or in money, on the 1st day of March, 1831, being the sixth note; that, in December, 1830, Johnson procured Smalley & Adams, to raise, for him, the money to pay the first instalment, specified in said decree, and gave them a mortgage on the land to secure them therefor and for other liabilities ; he telling them, and they supposing, that the decree did not include the two last notes; that Johnson, on the 31st of December, 1830, paid to the clerk of the court, on said decree, $466,12, which the defendants, on the the third day of January, 1831, received of the clerk ; that, in May, 1831, Watson conveyed to Wells; that, on the 31st of August, 1831, N. B. & H. Wells mortgaged their part of the land, to H. & G. Yail, to secure $331,00, payable, half in one year and half in eighteen months ; that between March, 1825, and January, 1832, Johnson and Wells erected buildings on the land, to the value of $2000, and Smalley & Adams had paid out money on their liabilities for Johnson, depending on his mortgage ; that, in January, 1832, the orators first learned from the defendants, that the decree included all the notes and that the time for payment had elapsed ; that Johnson had become insolvent and had absconded ; that the orators, understanding from defendants that they would still receive the amount due on the mortgage, raised the amount and applied to the defendants to receive it, which they declined doing, insisting that the property had become theirs unconditionally ; that the defendants, professing friendship, offered to receive five hundred dollars and release the land, and threatened an action of ejectment, therefor, if this was not done ; that N. B. & H. Wells, being engaged in trade and much embarrassed, and owning the greatest value in the premises, and fearing the consequences to their credit, finally concluded to close with said offer, and the orators paid the defendants $300, and gave their note for $200, and took of the defendants a quit-claim deed of said land. And the orators prayed to be relieved from the payment of said note for $200, and that the defendants might be decreed to pay to the orators all that had been paid to the defendants, over and above the amount of the defendants’ mortgage.</p> <p>The defendants,by their answer, acknowledged the mortgage to the defendants, and the mortgagor’s conveyance to Wells and Watson, the bill of foreclosure and the decree, but denied that the respondents, in that bill, did not appear, but insisted that they did appear, by their solicitor, L. B. Hunt, and, that the decree was regularly made, with their knowledge of its terms. They disclaimed all knowledge of any other conveyances, but admitted the payment, by Johnson, on the decree, and the receipt thereof by the present defendants, and insisted that the decree expired, the balance being unpaid. They also denied any assurance or promise to receive the balance and give a release, except that defendants afterwards said that, for Johnson’s sole benefit, the defendants offered so to sell. • They further insisted that, after the expiration of the decree, they made a bona fide sale to the orators, for five hundred dollars, three hundred being paid and two hundred secured by note. To this answer there was a traverse. Testimony was taken in the cause, and the orators’ testimony proved the conveyances, as alleged in the bill, and the payment by Smalley & Adams for Johnson ; that, before January, 1832, buildings had been erected on the land, to the value of about three thousand dollars, and that Johnson had become insolvent and absconded. The defendants also filed, in evidence, the docket entries of the clerk of the court, in Chittenden county, of the bill of foreclosure, which were as follows:</p> <p>“ January Term, 1830.</p> <p>“Samuel Hickok, ) Thompson &f Sawyer, v. 5</p> <p>■“ Eli N.Johnson, Noah B.'') - Wells, Henry Wells yHunt. and John Watson. J</p> <p>“ Bill taken as confessed, January 7, and referred to Master. “ To be paid on or before the first Tuesday of Jan- “ uary, 1831, $415,72</p> <p>“Cost, 24,67</p> <p>“ with interest from Jauuary 9, 1830.</p> <p>“ Also, the sum of $ 129,84, in grain or money, on the first “ of March, 1830.</p> <p>^ Also, the sum of $133,84, in cattle or money, Nov. 1, “ 1830, or the sum of $135,84, in grain or money, March 1, “ 1831.</p> <p>“Received, Burlington Dec. 31, 1830, of Eli N. Johnson, four hundred sixty dollars j-f „, being the amount of debt and costs ordered to be paid by the respondents, in the above cause, on or before the first Tuesday of January, 1831.”</p> <p>“ Received the above sum of four hundred and sixty-six dollars, of N. B. Haswell, clerk, January 3, 1831.”</p> <p>John C. Thompson,</p> <p>for Thompson & Sawyer.”</p> <p>It appeared from the testimony of Jacob Maeck, that he, being at St. Albans early in January, 1832, was informed by the orators, Smalley & Adams, that E. N. Johnson had made some arrangement with Samuel Hickok for an extension of the time of redemption of his mortgage and that they were ignorant whether such arrangement was made for the benefit or advantage of said Johnson, or of the subsequent incumbrancers, and he was requested, by Smalley & Adams, to call on Samuel Hickok and inquire whether any, and, if any, what agreement had been entered into for extending the time of redeeming said mortgage, and what said Samuel would agree to do in the premises, the said Smalley & Adams offering to make immediate payment of the money decreed, with interest. That he called on said Samuel and told him Smalley & Adams were ready to pay the redemption money as aforesaid, if he would receive the same, and he then put to him the inquiries and received the answers set forth in a letter which he wrote to Smalley & Adams. The letter was as follows :—</p> <p>“ January 14, 1832.</p> <p>u Gentlemen, — I have just been and conversed with Mr. “ Hickok, on your business. He is unable to say from “ recollection, or to ascertain from his papers, whether “ the other two instalments have been paid, but thinks ££ they have not, as the money belonged jointly to himself “ and Horatio Hickok, and he finds no sums credited to Ho- “ ratio Hickok that correspond with his proportion. He “ says Mr. Hunt settled some of the St. Albans mortgages, “ by check and note, but whether it was this or not, he is £- unable to say. He is likewise now unable to say whether ££ he has ever made any assignment of the decree, or given ££ any quit-claim, but is quite sure he never has, and that the “ other two sums are ¡yet unpaid. He further says there “ shall be nothing dishonorable on his part, and that he will “ now receive of you those sums, and he will enter a satis- “ faction of the decree on receiving his money and interest, “ the same as if it had been paid at the time they became “ due.”</p> <p>The testimony of Henry W. Catlin, taken by the defendants, was to this effect: — That N. B. Wells came to S. Hickok’s Store, in Burlington, in 1832, and said he did not wish to lose his property for the amount'for which it was foreclosed and represented the property worth much more; that the same day, or the next, Henry Adams came in and represented that the property was worth more than it was foreclosed for, and wanted to see what he could do for Wells, and wanted to know on what terms Hickok would release to Wells and said he thought it was a hard case for Wells to lose the property for that amount. That Wells and Adams were in at Hikok’s Store several times on this business and agreed with Hickok on the terms on which the property was to be conveyed to Wells; and Adams signed the note to Hickok, as he was unwilling to fake Wells’ note, and the witness understood that was a final settlement of the matter.</p> <p>The note in question is without consideration and was obtained from the orators, by compulsion, in order to relieve their estate from an unlawful and oppressive suit, and ought therefore to be cancelled, and the excess, exacted over what was due on Johnson’s mortgage, ought to be paid back to the orators.</p> <p>1. The decree, under which the defendants pretended a title to the mortgaged premises, was irregular and not conclusive upon the orators.</p> <p>2. But, admitting the decree to have been regular and valid, yet the defendants, by accepting, on the third of January, 1831, of $466,12 on ,the decree, after it had become absolute, opened the foreclosure and gave the orators the right to redeem the premises bn payment of the sum due on the mortgage debt.</p> <p>It seems to be the established rule, in courts of equity, that if the mortgagee, after having obtained a decree of foreclosure, take out process on the bond or other counter security to enforce payment of his mortgage money, it operates as a waiver of his rights under the decree. 3 Powel on Mort. 1002: ib. 1015, in Note, T. Perry v. Barker, 13 Vesey, 197. 1 E. C. Ab. 317, PI. 3. Lovell v. Leland, 3 Vt. R. 581.* Strong v. Strong, 2 Aikens’ R. 373. 6 Hovendon on Frauds, 201. 4 Kent’s Com. 175. 2 Swift’s Digest, 198. 1 Vt. R. 395. 9 Cowen’s, R.346. A fortiori, then, the actual receipt of the greater part of his mortgage money, after foreclosure and decree absolute, opens the foreclosure and revives the right of redemption.</p> <p>The acceptance, by the defendants, of the amount paid by Johnson, after the decree was absolute, is conclusive evidence that the right to redeem existed on the third of January, 1831, by the agreement of the parties. This, of itself, restored the relation of mortgagor and mortgagee, and the decree, from that time, was a nullity, and equity will not permit it afterwards to be set up as a clog to the right of redemption, any more than it would any other agreement entered into by the parties to impair or obstruct this equitable right, inherent in every mortgage. 1 Powel on Mort. 116, et seq. 2 Johns. C. R. 30. Jennings v. Ward and others, 2 Vernon, 520. Foublanque’s Equity, 528. Moreover, the defendants always treated it as a redeemable estate until March 22, 1832. The defendant, S. Hickok, in his answer, virtually admits that an agreement to waive the decree was in fact entered into between him and Johnson, for, when applied to by the orators, personally, in January, 1832, he says that he informed them that he would sell the premises to Johnson on payment of the balance of his mortgage debt, and adds that he also, at the same time, informed them that “ he had never offered “ to sell said premises to any one else than said Johnson, on “these conditions.” On the 14th January, 1832, this defendant considered his interest in this estate as that of mortgagee and informed J. Maeck, who applied to him on behalf of the orators, that he would receive of them his mortgage money in satisfaction of his claim. These admissions, in connection with the facts that Johnson, after the decree was absolute, paid the larger portiqn of the mortgage debt, and that he and his assigns always remained in possession of the premises, and that the defendants asserted no claim to them until after Johnson had left the country, and persons not parties to the decree had become interested in them, afford strong evidence of an agreement, in fact, between the defendants and Johnson that the right of redemption should remain unimpaired by the decree. Whether this agreement was intended to be secret and confidential between the parties, for their secret purposes, it is unnecessary to inquire. At all events the defendants ought not, in equity, to be permitted by any after thought to annul or qualify it by alleging or intimating that it was merely for Johnson’s benefit or an act of special favor to him. If Johnson had the right, from any cause whatever, to redeem, then it was a mortgage with the legal incidents of a mortgage, and his assignees took his right and were not barred of it when they applied to the defendants to redeem, in March, 1832. 4 Kent’s Com. 156. 1 Powel on Mort. 261: ib. 310.</p> <p>The orators, therefore, when they applied to the defendants, on the 22d March, 1832, had a right to redeem the premises on payment of the amount secured by the mortgage and the defendants were bound to receive it and discharge their lien. Statute, 170.</p> <p>Instead of receiving their due, when tendered, they for the first time asserted a false claim of absolute title to the premises, under the decree, and threatened a suit in order to extort from the orators more than their due. It is contrary to equity and good conscience to permit the defendants to retain money or enforce a promise obtained by their refusal to do what, by law, they were bound to do, and by asserting a claim repugnant to every principle of justice and equity. A suit, in execution of the defendants threats, would have cast suspicion upon the orators’ title to a large amount of real property,— would have embarrassed them in the enjoyment of it, and might have had an injurious effect upon their credit and business in other respects, To dispel this cloud on their title, and to avoid the consequences reasonably to be apprehended from a vexatious and unfounded suit, the orators paid their money and executed the note from which they now ask to be relieved.</p> <p>The case comes clearly within the principle if not the letter of those cases where it has been held that money extorted by taking undue advantage of the party’s situation, as withholding a pledge until the payment of illegal interest, exact-inS an ^ee f°r license to a publican, and excessive toll, may be recovered back in an action for money had and received. 2 Stark, Ev. 1X0. Morgan v. Palmer, 9 C. L. R. 232. Douglass, 472, 697. Cbitty on Cont. 192. Comyn ^ Qont> Astley v. Reynolds, 2 Strange, 915. Ripley and others v. Gelston, 9 Johns. R. 201.</p> <p>The forbearance of an unlawful suit can never be a good consideration for a promise; nor can a promise obtained by the imposition of unlawful terror, whether from the threat of an unfounded suit or otherwise, be enforced. Jones v. A.shburnham, 4 East, 455. In the civil law the same principle is recognized. 1 Pothier on Ob. 22, $ 43.</p> <p>But it is urged by the defendants that the orators objected, at the time the money was paid and the note executed, to the unjustness of defendant’s claim to the premises, and, after all, submitted, and therefore they ought to pay/because, by submission, they satisfied the defendants. This is a miserable sophism ; objecting, as a bar to the relief sought, the very thing objected to by the bill. If it was contrary to equity and good conscience for the defendants to claim more than was due, it is equally contrary to equity and good conscience to defend their extortion.</p> <p>This court has jurisdiction, and is the proper tribunal to compel the discovery an,d grant the relief sought. The oppression complained of originated in an abuse of its proceedings, which ought to be corrected here.</p> <p>One great branch of equity jurisdiction is to afford relief, by way of preventing vexatious litigation, against instruments void at law, by decreeing them to be given up and cancelled. For, though a writing may be known to be void and the party may have the means of proving it void, as having been obtained on imposition, or from being usurious or forged, yet, as such instruments may be made the ground of a vexatious demand, or may form a cloud upon' the title of another, a court of equity will exercise its jurisdiction on such instruments and take away the means of injury and annoyance. That is what is required in this case. The note in question, though void at law, as having been obtained by compulsion, may be negotiated and be made the ground of vexatious and oppressive litigation', and ought, therefore, to be cancelled upon principles well settled in courts of equity. Jeremy’s Equity, 499, 502. 1 Mad. Ch. 154. Reigal v. Wood, 1 Johns. C. R. 402. Apthorp v. Comstock, 1 Hopkins’ R. 143. Foublanque’s Equity, 718: ib. 697: Bushnell v. Hosford and others, 4 H.R. 301. Mitford’s Pléadings, 90,104,106, 116. Hodgson v. Murray, 2 Cond. C. R. 526. Peaks v. Highfeld, 1 Russell, 559. Wymer v.- Callender, 1 Russell, 293. Hood v. Aston, 1 Russell, 412. Grover v. Hugell, 3 Cond. C. R. 467. iorcZ Portarlington y. Soulby, 8 Cond. C. R. 298. Fonblanque’s Equity, 60. Newland on Cont. 493.</p> <p>I. The premises, included in the decree, were the absolute property of the defendants on the 22d March, 1832, when they conveyed the same to the orators. '</p> <p>1. The decree was obtained in the usual way, after the appearance of the defendants, and could not have been impeached either on the ground of fraud or mistake. Nor was the omission of the orators to redeem- owing to anything but their own negligence. The decree was, of itself, notice to all persons subsequently taking a conveyance of the premises.</p> <p>2. The acceptance of the instalment, due on the first Tuesday of January, 1831, did not open the decree. In order to have the acceptance of payment on a decree, revive the equity of redemption, the payment should be so madd and received as to show that the parties still intended to treat it as a mortgage. In this case, it is manifest that S. Hickok had no such intent, but only supposed he was receiving the instalment due by the decree.</p> <p>Again, even if the decree was opened by the payment, the neglect of the orators to pay the instalment due on the first of March, 1831, closed it again.</p> <p>3. There never was any agreement on the part of the defendants to extend the time of redemption.</p> <p>4. There is no instance where a man has been let in to redeem after the equity of redemption has expired by virtue of any parol agreement or declaration, or by reason of any over value of the estate. 3 Pow. on.Mort. 10, 10.</p> <p>The declaration to Maeek gave the orators no new or additional right. .</p> <p>II. But if the orators, by filing a bill to redeem, might, on the 22d of March, 1832, have been entitled to an equity of redemption, they cannot now be allowed to raise the question above discussed. The settlement made between the orators and defendants,, at that time, was understood by all to be made for the very purpose of settling and merging all the matters then in dispute between them. At that time the orators knew all the facts which are set forth in the bill; they knew all their legal and equitable rights, and if they were not willing finally to adjust and settle the controversy, at that time, they should have brought a bill, to be let in to redeem. Had they brought such a bill, instead of procuring a release from the defendants, they might have successfully'resisted it, in which case they would have been entitled to the whoie of the property.</p> <p>If the orators were not willing to run this risk, they ought at least to be compelled to pay for the security against the risk, which they now enjoy by the release from the defendants.</p> <p>The right of the orator was, at least, a doubtful claim and the compromise of a doubtful claim is a good consideration for a note.</p> <p>Again, the orators obtained, by the release of the defendants to them, the title of the defendants to the premises; a title which may prove not a little advantageous to the orators in patching up their own title as against Johnson.</p> <p>III. There is not the slightest evidence in the case to show that the defendants took advantage of the situation or necessities of the orators.</p> <p>As to their situation, they knew all their equitable rights, the proper mode of enforcing them and the risk and doubt that might attend an appeal to a legal tribunal. In all this there was nothing by which the defendants could take advantage of them.</p> <p>As to their necessities, there is no pretence that any of the orators were embarrassed except N. B. & H. Wells, and as to them there is no evidence in the case.</p>

<p>The judgment of a court of record is not conclusive, except as to parties or privies.</p> <p>Strangers may impeach such a judgment, collaterally, by disproving the facts upon which it was predicated.</p>

Ejectment, for part of lots No. 20 and 28, in Enosburgh. Plea, not guilty. Issue to the court. The plaintiff gave in evidence the charter of the town of Enosburgh and showed the allotment of the town at an early day.

This was an action on the case, for obstructing the water which flowed through the plaintiff’s land, being a part of lot No. 133, situated on the Missisquoi river, in Enosburgh, by the erection of a dam, by the defendants, across the same stream, below the plaintiff’s land, by means of which the water was caused to flow back upon the plaintiff’s mill and injure him in the use of it. Plea, not guilty. Issue to the country.

This was an action of book account, commenced before a justice of the peace, from whose decision an appeal was taken to the county court.

This was an action on the case against the defendants for the neglect of their constable in not taking bail on mesne process. Plea, general issue, and trial by the court.

The orator, in his bill, alleged, that on the sixth day of May, 1832, he executed a deed to the defendant, in due form of law, containing covenants of seizin and warranty, of lots No. 49, 50 and 51 in the second range of lots in the town of Alburgh, and lots No. 8,9,10,11 and 12 in the first range of lots in said Alburgh, to secure to the defendant a sum of money then due to him, and also to secure to one Heman Allen a sum of money then due to him, and further to secure the…

Ejectment, for thirty-three acres of land in Shoreham, being the south part of lot No. 8, in the third division of the right of Jonathan Gates. Plea, not guilty. Issue to the country. Upon the trial in the county court, it was admitted that the defendants were in possession of the land in question, at the time of the commencement of this suit.

Assumpsit, to recover toll of the defendant for passing the gate on the plaintiffs’ turnpike, in Hancock. Plea, non-assumpsit, and trial by the court.

Assumpsit, on a promissory note. The writ, in this case, was against “ Reuben Skinner, “ Henry Bulkley and Solomon Bulkley, and Henry L. Sabin, “ the three last co-partners under the style and firm of H. & “ S. Bulkley & Co., all of Granville, in the county of Washington, and State of New York.” The writ was served upon the defendant, Skinner, and there was a non est return, as to the Bulkleys and Sabin.

Ejectment, for a parcel of land in New Haven. The writ in this case, was served on the thirty first of May, 1838. Plea, not guilty and trial by jury.

Trespass, for a horse and harness. Plea, not guilty. Issue to the country. Upon the trial in the county court, the defendant admitted the taking of the property, and offered in evidence a writ of attachment in favor of George W. Cutter against one James Lawrence, and insisted, that, as-sheriff of Addison county, he took the property in question as the property of said Lawrence, by virtue of said writ.

Assumpsit, in four counts. The first count was upon a contract, made by and between the parties, on the twenty-seventh day of May, 1830. Held: in that case, that the plaintiff must have actual knowledge of such return, to enable the debtor to avail himself of the statute of limitations, unless he came to reside permanently in the state. If he came to reside permanently, the knowledge of the plaintiff would seem to be im* plied.

<p>An administrator or executor cannot be cited in to maintain or defend a suit in which the deceased was a party, if a. term of the court has elapsed in which he could have been cited.</p> <p>When an appeal is taken from the allowance of an administrator’s account, and, pending the appeal, the administrator dies, the administrator of the administrator cannot be cited to appear before the Gourt where the appeal was pending, to settle such account.</p>

This was an action of assumpsit on two promissory notes, both dated the 9th of January, 1837, one for $321,25, payable in six months, and the other for $321,26, payable in nine months from date, with interest, on which several payments were indorsed. Plea, non-assumpsit, and issue joined to the court.

Tms^was an appeal from, an order of removal of one Sanford Ayers and his family from Monkton to Panton.

Assumpsit, on a promissory note, given by Joseph Hough and Nathan Wood, as partners, under the firm of Hough & Wood, and the defendants Wheelock and Judd. The writ and original declaration, in this case, were against the said Hough, Wood, Wheelock and Judd. The writ was served upon Wood, Wheelock and Judd, and a non est return was made as to Hough.

This was an action of assumpsit, wherein the plaintiff declared, in substance, as follows: that, on the first day of January, 1828, the plaintiff owned and possessed one hundred and fifty two shares, amounting to the sum of $1520, of the stock of the Vermont Fire Insurance Company, and that the defendants were also, severally, owners of other shares of said stock ; that afterwards, on the eleventh day of February, 1828, the plaintiff was desirous of dissolving his connexion…

<p>The appointment of a special officer to make service of process is a ji.dicial ..et, which can be exercised only by the authority signing the process.</p> <p>Where a justice of the peace signed a blank writ, and a deputation on the back of it, in blank, which deputation was afterwards filled up by a third person, without the direction or knowledge of such justice, and the person thus deputized made service of the writ by attaching property; Held, that such deputation was void, and that the person thus deputized was a trespasser.</p> <p>F. held a note against R., not negotiable, and at R’s request passed the note to S., and R. gave his consent that S. might dispose of the note to whomsoever he -pleased. S. afterwards sold the note to A., who sued it in the name of F., and, without the knowledge or consent of F., caused an il legal deputation to be made to C. to serve the writ, who served it by attaching the property of R. ; — Held, that F. was not Iiiibk for the property so attached.</p>

Trespass, in two counts, the first for breaking and entering the plaintiff’s close, and the second for seizing and taking away two heifers.

Assumpsit, on a promissory note, given by the defendant to the plaintiffs intestate, dated September 13, 1831, payable on demand. The defendant prayed oyer of the plaintiffs letter of administration, which was read to him. Said letter was dated September 4, 1837. Plea ; — The statute of limitations.

This was an action of book account, in which a judgment to account was rendered by the county court, and auditors were appointed, who, afterwards, made a special report of the facts found by them, relating to the accounts of the parties, and, among other things, reported, that “ the defendant exhibted the following account, in offset to the plaintiff’s account, viz : e January 9, 1837/ To ten hours delay, as agreed, $10,00;’ which item was allowed, it being proved that on…

<p>Two or more persons may be holden as partners, with respect to third persons, and not be partners, inter se.</p> <p>An action of assumpsit, as well as an action of account, may be maintained against an agent when he promises to render an account.</p>

This was an action of debt on a judgment. The writ issued as an attachment against the bodies or estate of the principal debtors, and as a summons against the trustees. The principal debtors pleaded in abatement as follows:— Simeon Mears et at., trustees.

This was an indictment for perjury, charging, in substance, that, at the term of the county court held at Rutland, within and for the county of Rutland, on the second Tuesday of April, in the year one thousand eight hundred and thirty eight, amongst the pleas of the said term, a certain issue was duly joined in said court between Laura Ann Munson and Apollos Hastings, defendant, in a certain action of assumpsit for a breach of promise of marriage, which action, before that…

<p>Assumpsit,to recover three assessments upon certain shares of the capital stock of the Wallingford Manufacturing Company, alleged to belong to the defendant.</p> <p>Plea, non-assumpsit.</p> <p>The case came before the county court upon the following case stated.</p> <p>The defendant, and some thirty other persons, on the seventh day of February, 1S37, made and entered into an agreement, in writing, and thereby formed themselves into a company, under the name of the Wallingford Manufacturing Company for the purpose of manufacturing and selling wollen and cotton cloths, or either of them, and for the transaction of all such business as is usually done by manufacturing companies. Said agreement provided for the appointment of trustees or agents to transact the business of said company and authorized such trustees to purchase certain lands and a water privilege and take deeds in trust for said company and erect a factory, &c.</p> <p>And the said subscribers, in and by said agreement, further agreed, as follows:</p> <p>“ In order to enable our said agents or trustees to pay for ‘‘ the real estate which the company have agreed to pur- “ chase, and that they may have the necessary funds to ena- “ ble them to proceed with the business of the company, the undersigned individuals, have subscribed, as part of “ the capital stock of the company, the sums affixed to our “ names, respectively, and we do hereby severally promise " and agree to pay to such trustees or agents as may be ap- “ pointed by the company, the whole of the money by us “ subscribed as stock in said company, at such time or times “ and in such assessments as shall be made by our said trus- “ tees ; Provided, all assessments shall be made equal in pro- “ portion to the sums subscribed, and that thirty days notice “ of the time of payment shall be given to each individual ■“ and of the sum he is required to pay; and vve severally ... , . , . i , .. ■££ agree with the company, and with each other, that 11 any “ person shall neglect or refuse to pay the assessments when £< due and called for by the trustees, that the stock on ££ which ,such assessments are made shall be forfeited to the ££ company and that the individual so neglecting or refusing ££ to pay such assessments shall no longer have any right or “ title to said stock or to any of the company property;”</p> <p>Said agreement also provided for holding the annual and other meetings, &c., and contained the following provision relating to the procuring of an act of incorporation, &c.</p> <p>££ And it is further understood and agreed b.y the undersigned, respectively, that an act of incorporation shall be ££ procured from the general assembly of-this state, as soon ££ as possible, for this company, and that as soon as said com- “ pany shall obtain an act of incorporation, that our trustees “ shall immediately transfer and make over to such incor.</p> <p>“ porate company all the property, real and persona:!, includ£i ing the-capital stock of this company, which this company ££ may at the time own, and that the several individuals “ signing this agreement shall own in said incorporate com- “ pany the same proportional interest that they may own in “ this company at the time of such transfer.”</p> <p>The defendant and others signed said agreement and took stock,.in the whole, to the amount of fifteen thousand dollars and upwards, but no part of the .sum subscribed by the defendant, or others, was paid at the time of signing the agreement. On the day of signing, the signers met and appointed five agents, trustees or directors to manage the affairs of the company, as provided in the articles of agreement. The agents so appointed accepted the appointment and ever since have been the sole agents, trustees or directors of said company. '</p> <p>About the 20th of March, 1837, the agents or trustees purchased the water privilege owned by Ashbel Meacham and others, together with such part of the real estate of Z.Hull and others, as they were authorized to purchase by said articles of agreement, and took proper deeds and conveyances in trust for said company, and, for the purchase money, said agents gave notes as such agents, in the whole, for about $7200, payable a part of them in June, 1837, part in April 1838, and the balance in April, 1839.</p> <p>The agents applied to the legislature, in the fall of 1837, for an act of incorporatioh for said company, which application was referred, by said legislature, to the session of' 1838, and, by the legislature of 1838, the act was granted and is made a part of the case. On the day fixed in said act for the first meeting, viz. the third Monday of January, 1839, the persons named in said act, with other signers of the said agreement, met at the time and place mentioned therein, for the purpose of forming a company under said act, and,on the same day, made and adopted rules, by-laws and regulations for their government. Five directors were appointed on the same day, who were the same persons appointed under the articles of agreement. On the same day, after the annual meeting of said company held under said articles of agreement, the said company voted to accept of the act of incorporation that had been procured for said company, and of the doings had under said act in forming themselves into a new company, or of accepting the .act of incorporation for said company, under said articles of agreement. It is however admitted and agreed that the defendant was not present at the meeting held under the act of incorporation, norat the annual meeting held under the articles of agreement, and that he did not assent or dissent from the same except by taking no'part in the meetings. It is also agreed that the agents or trustees, acting under the articles of agreement, (aftér the meeting held under the aforesaid act) by vote of the company and in pursuance of said articles, deeded and conveyed all the real and personal property owned by the company under said agreement, including the water privilege and lands which had been deeded to said agents, in trust, to the «company formed under said act of incorporation. It is also •admitted and agreed that the agents, while acting under the articles of agreement, to wit, in March 1837, made an assessment on all the capital stock of said company of ten dollars on each share, and directed the same to be paid by the 10th of May, 1837, and that in December J837, said agent or trustees made another and further assessment of $15,00 on a share to be paid by the 20th of March, 1838, and on the 20th February, 1839, the same directors, acting under said act of incorporation, made another' assessment of $30,00 on each share', tobe paid by the 18th of March, 1838, and it is agreed that the defendant has been duly notified of each of said assessments and requested to pay the same, as required in and" by said articles of agreement and by the rules and by-laws of said company, and that he has not paid them.</p> <p>If the plaintiffs are entitled to recover anything, then judgment is to be entered for the amount of the three assessments, with interest after they were to have been paid, and if not entitled to recover, the plaintiffs must enter a nonsuit.</p> <p>The county court rendered a judgment for the plaintiff and the defendant excepted.</p> <p>It is contended that the plaintiff cannot maintain this action against the defendant,—</p> <p>1. Because no contract was ever made between the plaintiff and defendant. The articles of association, signed by the defendant and others, and under which the defendant’s liability to the plaintiffs is claimed, were formed long before the act of incorporation, under which this suit is brought, was granted. 8 Mass. 188.</p> <p>2. The original articles of agreement constitute merely a private association or co-partnership, and whatever liability the defendant may have assumed by subscribing such articles of agreement, that liability can be enforced in no other way than by such remedy as existed before the act of incorporation, or such remedy as if no act of incorporation had been granted at all. In short, the act of incorporation gives no new remedy ; it creates no new or different liability.</p> <p>3. This is not like tide case of Lapham v. Green, 9 Vt. R, 407, and the cases upon which that decision restsj in which it has been adjudged that a party in interest in a contract, resting in parol, may sue upon it, because in all these cases the interest existed at the time of the contract. Not so in this case. The party suing did not then have even its artificial being. 5 Mass. 491.</p> <p>4. This is not a negotiable contract, and although the interest of the old company, so called, may have been assigned to the new incorporated company, that would not enable the corporation to recover that interest by suit in its own name.</p> <p>5. There is no express promise here to pay the assessments to the corporation, and if a promise could possibly be' implied,- assumpsit will not lie in favor of the corporation upon an implied promise, where the general laws of the state, or those specially regulating the concerns of- the corporation,provide for the forfeiture of the stock for non-payment of the assessments, and no other mode is provided to enforce payment. Comp. Statute, page 160. Essex Bridge Co. V. Tuttle, 2 Vt. R. 393. And'over and Medford Turnpike Co. v. Gould, 6 Mass. 40. New Bedford fy Bridgewater TurnpikeCo.- v.- Adams, 8 Mass 138:- Gilmore v. Pope, 5 Mass 491.</p> <p>This case proceeds on the ground that the person sued Contracted expressly to pay the amount of the money he subscribed.</p> <p>If this is made out, the case then becomes entirely differérent from all classes of cases where the court have decided that, by a’ forfeiture of the amount"already paid, the stockholders might be released from the residue.</p> <p>Those decisions were made on the ground that it was optional with the stockholders to forfeit their stock and be released from further payment or not,- and that that was the only remedy provided to enforce' the payment of the shares subscribed-for'by the parties, and was so understood.</p> <p>fn this case,- directly the reverse is the fact, and this appears from the express engagement of the parties,- from their acts and from the nature of the undertaking.</p> <p>The company, as such, have a right to sue. The original contract with the trustees contemplated the obtaining an act of incorporation, and when obtained, equally contemplated that the company,formed under that act,should take'the place of the trustees,- or should' take the place of the’ company formed by the articles of association.</p>

<p>That the defendant was arrested while .attending court as a witness, no cause of abating the writ.</p>

Assumpsit, to recover of the defendant for the maintenance and support of Patty Preston, a poor person belonging to and resident in the town of Wallingford. Plea, non-assumpsit. Issue to the country.

This was an action on the case, to recover damages for an injury to the person of the plaintiff, occasioned by the insufficiency of a highway in Danby. Plea, not guilty.

<p>The return on an execution, that the debtor is sick, must show that he is so sick that it would endanger his life to execute the process.</p> <p>In such case, the officer should immediately return his execution, or, if still in life, he may hold it, he using reasonable diligence to keep watch o' the debtor, that he may execute the process upon him in case of recovery and before lie escape.</p> <p>Where the officer’s return shows that the debtor in execution was thus sick, and had no property to be found on the 29th day of March, and further states that, “ since that time, on diligent search in and throughout my precinct, I cannot find the goods, chattels or body of the debt- or,’ dated April 5, — this, alone, without any further proof, does not show a neglect of duty in the officer.</p>

This was an action of assumpsit for the breach of a promise to marry the plaintiff. Plea, the general issue and trial by jury.

Trover, for a quantity of cedar posts and rails. Plea, general issue.

This was an action of assumpsit, commenced against the defendant and one Gleason, but no process was« served jupón the latter, nor did he become a party in court.

Assumpsit, on a warranty in the sale of a cow. Upon the trial in the county court, by a jury, Lewis White was called as a witness for the plaintiff and testified that he was a brother of the plaintiff; that he called on the defendant and tpld him he wished to purchase a cow for his brother, Henry White. A cow v/as selected and the price agreed upon at $33,00.

This was a prosecution for bastardy i commenced before a justice of the peace, on the twenty eighth day of December, 1837, by the complainant, who was the mother of a bastard ■child, and resided in Sandgate. The defendant, on the same 28th day of December, 1837, was held to bail for his appeaiv anee before the county court, at the June term thereof, 1838, to answer to the complainant’s complaint; at which term of said court the complaint was entered in court.

Assumpsit, on a policy of insurance to recover damages for the destruction of the plaintiff’s cotton factory by fire. Plea, non-assumpsit. Issue to the country.

This was an action of covenant broken, wherein the plaintiff declared, as follows ; — “ For that whereas, by certain articles of agreement, made the 3d day of August, 1837, between Truman Estes, Heman Whipple and Brownson Harmon, all of Bennington, which agreement, under seal of the said Truman Estes, Brownson Harmon and Heman Whipple, the plaintiff now brings here into court,.the date whereof is the day and year aforesaid, which is in the words and figures following, to…

This was an action of book account. Judgment to account having been rendered by the county court, auditors were appointed, who subsequently reported, that, having heard the parties and the testimony introduced, they found nothing due to the plaintiffs. The auditors further reported as follows :— “ On the hearing of this cause, the plaintiffs presented an “ account against the deceased, but no account was presented in favor of the estate against the plaintiffs.

This was an action of covenant broken, in which the plaintiff declared in four counts, upon the. covenants in a deed, executed, by the defendant, to the plaintiff, on the 26th of January, 1829, of a lot of land in Stamford. The first count was upon the covenant of seizin ; the second and third were upon the covenant of warranty, and the fourth was upon the covenant that the land was free and clear from all incumbrances.

Debt, upon a recognizance. The plaintiff, in his declaration, alleged, in substance, that ■on the twenty first day of April, 1834, at Manchester, in the county of Bennington, by the consideration of Loring Dean, a justice of the peace within and for said county of Bennington, he recovered a judgment, in a suit then pending before said justice, in his favor and against one James Wakefield for the sum of ten dollars damages and two dollars thirty two cents costs, from which…

This was an indictment, charging that the respondent and Amelia Shurtleff, the wife of Newell Shurtleff, were found in bed together under such circumstances as to afford presumpption of an illicit intention between them to commit the crime of adultery.

<p>The holder of a bill of exchange, payable at a future time, and on a day certain, is not bound to present it to the drawee for acceptance until it becomes due.</p>

This was an action on the case against the defendants, for the default of Daniel A. Rudd, their constable, in not executing and returning a writ of execution in favor of the plaintiff and against Asahel Booth, for the sum of $286,53, damages and $ 18,32, costs, issued on a judgment recovered at the December term of Bennington county court, 1837, which execution was dated December 13, 1837, and made returnable in sixty days from date.

Ejectment, for a parcel of land in Woodford. Plea, not guilty. Issue to the country. , Upon the trial in the county court, it appeared'that David Lyman, deceased, was seized of the land in question, at the time of his death ; that it was inventoried as a part of his estate, and, subsequently, set out to Sophia Lyman, widow 0f the said David, as a part of her dower in the real estate of the said David.

Scire Facias, on a judgment rendered upon a bond, given by the defendants to the probate court for the district of Marlboro’, in .the penal sum of $1000, dated January 11, 1825, conditioned that the defendant, Williams, who was guardian of Daniel T. Aldrich, a distracted person, should faithfully discharge his trust and duties as such guardian, according to law, and should make, and return into the registry of said probate court, a true and perfect inventory of all the…

This was a writ of error to reverse a judgment of the county court. The defendant in error commenced a suit against the plaintiffs in error, before a justice of the peace, declaring in two counts.

This was an indictment for not making and opening a road. The indictment charged, “ that, at a county court begun “ and holden at Newfane, within and for the county of “ Windham, on the second Tuesday of April in the year “ one thousand eight hundred and thirty six, the report of a “committee theretofore appointed by said court to lay out' “ a road, or highway, from the county road passing through “ Williamsville in Newfane, near where said road is inter- “ sected by Baker’s…

Assumpsit, on a promissory note, dated Nov. 25, 1833, given by the defendant to Nomlas Cobb, or order, and by him indorsed. Held: in his own name, a mail contract, onethi d of which was for the benefit of the defendant; that in November, 1833, two quarters’ pay for carrying the mail were due, one hundred and fifty dollars of which belonged to the defendant; that Leland held notes against the defendant and delivered them to Cobb, to indemnify him for signing a…

Debt, upon a judgment recovered in favor of the plaintiff against the defendant, by the consideration of Winslow W. Ralph, a justice of the peace within and for the county of Windsor, on the 23d day of April, 1836, for $15,15, damages and $1,99 costs. The' declaration'was in common form, containing a proferí of the record. Plea, nul tiel record.

¿Ludita querela to set aside an execution issued on a judgment rendered by a justice of the peace, in favor of the defendants against the complainant. The writ directed the officer to attach the property of the defendants, and for want thereof to summon them to appear, &c. The officer’s return was as follows:— “ State of Vermont, Windsor county, ss: — Cavendish, August 15, 1837.

Indictment for hindering and impeding Lewis Merritt, a deputy sheriff, in the service of a writ of attachment.

Assumpsit, in four counts. The first count was upon a promissory note for thirty five dollars, given by the defendant, payable to the plaintiff or order, on demand,with interest an. annually, dated Nov. 23, 1834.

This was an action of book account. The county court accepted the auditor’s report, which was for the plaintiff to recover only a part of his account, and rendered judgment thereon, to which the plaintiff excepted. The facts as reported by the auditor, sufficiently appear from the opinion of the court which was delivered by

This was an action on the case against the defendant, as sheriff of Windsor county, for the neglect of his deputy, David Bosworth, in not executing a writ of execution in favor of the plaintiff against one Cyril Pennock, for $21 damages and $3,66 costs, dated October 2, 1837. Plea, not guilty. Issue to the court.

This was an action for slanderous words. The plaintiff, in his declaration, after setting forth his good name and character, alleged, that for more than ten years previous to the commencement of this suit, he had been and then was a preacher and minister of the gospel, duly settled over the church and society called the first Universalist society of Ludlow, and had, by reason of such good character and for preaching to such society, received great gains and emoluments to his…

This was a writ of errror, brought to reverse a judgment of the county court.

This was an action of trespass, for taking a heifer, originally brought before a justice’s court, in Windsor county, where the plaintiff recovered $17,20, damages and costs; from which judgment the defendant appealed to the county court.

Audita querela, to set aside a judgment of the county-court.

This was an action of book account, which was referred to an auditor,in the county court, and came to this court upon exceptions to the decision of the county court, accepting the report of the auditor. The counsel for the defendant moved this court to recommit the report of the auditor for a fuller statement of facts. By the court: — In cases coming into this court, upon exceptions, the court sits merely as a court of error.

<p>([Practice, in Chancery.)</p>

In this case a commission had issued for taking testimony in the commonwealth of Massachusetts. Samuel D. Parker, Esq., had been offered as a witness to be examined before the commissioner, and, being inquired of as to what passed in the grand jury room, declined testifying to any such matter on the ground of his having been state counsel at the time.

This was an action of assumpsit, commenced before a justice of the peace, and appealed to the county court.

Trespass for breaking and entering the plaintiff’s close and tearing down and demolishing his dwelling house. Plea not guilty. Issue to the country.

Trespass for taking one ox and one cow. Plea general issue, with notice. Issue to the court. On the trial in the court below, the following facts were found: viz. The plaintiff, in the spring of 1834, purchased a cow and delivered her to his father, Ebenezer Cilley, who was to have the use of said cow, and was, in consideration thereof, to raise the calf for the plaintiff. Said cow had, a calf that year, which was raised by said Ebenezer. The plaintiff resided in New York.

Action oe account, commenced before a justice of the peace and brought to the county court by appeal. The original writ was directed to the sheriff of Orange county his deputy or any constable of said county, and was served in Orleans county by a deputy sheriff of the latter county, which facts the defendant pleaded in abatement of the writ, in the justice’s court.

<p>The vendee of personal chattels is not at liberty to rescind the contract, merely upon the ground of inadequacy of price. If the vendor was guilty of fraud in the sale, the vendee may, upon discovering it, rescind the contract. But the question of fraud must, in such case, be determined by the triers of the fact.</p> <p>If the parties have stipulated the rule of damages, it must be adhered to, although it may do manifest injustice.</p> <p>If one agree to pay a certain sum in specific or collateral articles, worth much less than the agreed price, but fail to fulfil, he is liable for the sum stipulated.</p> <p>If one agree to pay a certain sum in specific property, which he represents tobe, at the time, at a certain place, when,in fact, he has no such property ; and the remainder of an entire sum in an order for work, the promissee, upon discovering such misrepresentation, is not bound to demand either the property, or the order; but may sue presently for the broach of the contract.</p>

This was an action of book account. Judgment to account having been rendered by the county court, an auditor was appointed, who afterwards reported a balance of $62,87, due from the defendant to the plaintiff. The auditor further reported the following facts, in relation to an item of $25,00, charged in the defendant’s account, in 1836, which the auditor disallowed.

<p>In the ease of a poor debtor, confined on execution to the jail limits, when admitted to the benefits of the oath prescribed for such debtors, if the jail commissioners, in the certificates delivered to the sheriff and to the debtor, state that the creditor was notified and that the debtor was admitted to the oath, this will afford a sufficient excuse for the debtor’s departing the liberties.</p> <p>In such case, if the jail commissioners certify in one certificate that the creditors did attend, and in the other‘that they did not, this will not render the discharge irregular.</p>

Trespass for taking a horse. Plea, the general issue, and notice. On the trial in the county court, the following facts were established. The plaintiff had purchased the horse in question, in October, 1837, of one Andrew P. Walcott, and, after keeping it some few days or weeks, put it upon a farm which he had recently purchased, his title being upon record.

<p>In an action on the case in the nature of a conspiracy, the gist of the action is the damage to the plaintiff; and not the conspiracy.</p> <p>When a conspiracy is charged in a declaration between two or more, the acts of one in pursuance of the conspiracy are the acts of all in legal contemplation and may be alleged in such case, in the declaration, as the individual acts of the one.</p> <p>The plaintiffs in their declaration alleged that they and D. W. P. had been copartners in trade and that D. W. P. had sold out to them his interest in the concern and that the plaintiffs had agreed to pay all the debts against the firm, and that after the dissolution D. W.P. had conspired with G. W. P. to defraud them; and for that purpose D. W. P. made and delivered to G. W. P. certain notes in the name of the firm, and antedated them before the dissolution, and delivered them to G. W. P. with the intent, that he should present them for payment; which ■was afterwards done and the note paid; the said G. W.P, representing that the notes were just demands and given to him at the time of their dates for goods sold by him to the firm;</p> <p>In such case it was held that a charge io the jury directing them ; “if they found, the notes were fabricated by the defendants after the dissolution of the partnership with a view to make the plaintiffs chargeable with them as stated, and that G. W. P. then in furtherance of the original design, induced the plaintiffs to pay the same, without disclosing the fact that they were set on foot subsequently to the dissolution of the partnership, it was such a fraud as would entitle the plaintiffs toa verdict;” was not erroneous, and a new trial was refused.</p>

This was an action of trespass and false imprisonment. Plea, general issue, with notice that the supposed false imprisoment was an arrest made by virtue of an execution duly issued by John Curtis, Esq., a justice of the peace of Orange county, on a judgment rendered by said justice, which judgment remained in force and unsatisfied. • The arrest being proved, the defendant gave in evidence' a copy of the judgment described in his notice, by which it appeared that a writ of…

This was an action of trespass for taking certain articles of personal property. The suit was brought to the county court. The ad damnum, in the writ, exceeded one hundred dollars. Plea, — the general issue.

This was an action of trespass, commenced before a justice of the peace against the defendant, who was a colonel commandant and senior officer of the court martial of the 16th regiment, 2d brigade, and 4th division of the militia of this state, to recover for four and five-eighths yards of cloth belonging to the plaintiff, worth five dollars, which was taken by one Asa C. Lee, quarter master sergeant of said regiment, by virtue of an execution signed by defendant.

This is an appeal from commissioners of insolvency on the estate of Alzo Rich. The declaration was upon a contract for the conveyance of land. On the trial in the county court the plaintiff read the contract described in his declaration without objection. He then offered one Roswell M. Richardson as a witness, who was objected to on the ground of interest and incompetency.

Debt, on award of arbitrators. The submission was under the seals of the parties, and the declaration alleged the award to be under seal. On the trial in the county court, the award, which was offered in evidence by the plaintiff, was objected to by the defendant, on the ground that there was but one seal, which seal was a paper attached by a wafer, at the left hand of the signatures of the arbitrators.

<p>In a cause triable before a justice of the peace, when the justice, who signs the writ, is absent on the return day, any other justice, in order to continue the suit, must be present at the place set for trial, within two hours after the time set in the writ, and have the writ in his possession.</p> <p>If this is not done, the suit is discontinued, and no after proceedings can be legally had.</p> <p>If, in such case, the plaintiff proceeds and takes judgment by default, the proceedings will be set aside by audita querela.</p>

Trespass, upon lot No. 69, in Brunswick. Plea, not guilty. Issue to the country. Upon the trial in the county court, the plaintiff gave in evidence a statute law of this state, -passed October 28, 1831, granting a tax of three mills on each acre of land in Brunswick in the county of Essex (public rights &c., excepted) for the purpose of building a jail. The provisions of the act sufficiently appear from the opinion of the court.

Assumpsit on two promissory notes. Plea, general issue and trial by jury. Two of the plaintiffs, Stearns and Jewett, were set up in the declaration as partners. On the trial in the county court, the notes were read without objection, whereupon the defendants called for the proof of the partnership between the said Stearns & Jewett.

The plaintiff declared,in assumpsit,” that the defendant, on the 22d day of May,1838,at Guildhall aforesaid,by his promissory note,of that date, for value received,made under his hand in writing, promised the plaintiff to pay him or order the sum of fifty-seven dollars in good merchantable hay, wheat, oats, rye, buckwheat or barley, at cash price, to be delivered on or before the first day in June next after date.” There was a second count differing from the first only in…

<p>In an action against the defendant alone for money paid out on a note signed by him and another, such other signer is a competent witness for the plaintiff to prove that he and the defendant were the principals in the note.</p> <p>Leading questions are generally inadmissible on an examination in chief; but this rests in the discretion of the court and their course in this respect cannot be revised, in error.</p> <p>That a deposition, in which the parts rejected by the court were not entirely obliterated, went into the possession of the jury is not matter of error; the attention of the county court never having been called thereto and they having made no decision thereon.</p>

Audita querela, to set aside a judgment rendered by Daniel Judd, a justice of the peace, on the 10th day of November, 1834, in favor of the defendant in this action, against the complainants, for sixty-five dollars damages and twelve dollars and fourteen cents costs. Plea, not guilty, and trial by jury- On the trial in the county court, the complainant gave in evidence a copy of the record of the judgment complained of.

<p>A will, made and approved in another state, cannot be read in evidence in our courts on the trial of a title derived under it to lands in this state, unless a copy of such will is filed and recorded in the probate court in this state.</p> <p>When such will was admitted as evidence and the plaintiff claims and makes title through the devisee, the verdict must be set aside, notwithstanding it may appear that the plaintiff might have claimed through the heir at law, as the deposition, which proved him to be heir, also proved that his ancestor did not die intestate, but made a will.</p>

This was an action of assumpsit originally brought before a justice of the peace by the indorsee against the maker of a promissory note.

Scire hacías, upon a judgment, rendered by the county court, at their June term, 1838, in favor of the plaintiff against the defendants, in an action on a bond given by the defendants to the plaintiff, sheriff of Orleans county, conditioned that the said John W. Mason, who had been appointed by the plaintiff a deputy sheriff in and for said county of Orleans, should faithfully perform the duties of deputy sheriff, &c., and save the plaintiff harmless and indemnify him from…

<p>This was an appeal from an order of removal of certain paupers, and was tried in the county court by a jury, on the issue, whether they were duly or unduly removed.</p> <p>The paupers, whose settlement came in question, were Margaret, the alleged wife of one Burdick, her child by said Burdick, and another child of hers, which was born before her alleged intermarriage with said Burdick. It was conceded, for the puposes of the trial, that said Burdick was legally settled in the town of Underhill; and the sole question was, whether the marriage between said Burdick and his alleged wife, aforesaid, was a legal and valid marriage ? Said marriage was .proved to have taken place, on or about the 30th day of May, 1836.</p> <p>The defendants proved that on, or about, the 35th“ day of June, A. D. 1834, said woman was married in due form of ■law to one James Hyland, a foreigner, with whom she lived and cohabited for two or three weeks thereafter, when said Hyland absconded, and had not since been heard of.</p> <p>The plaintiffs insisted that, under such circumstances, the death of said Hyland, previous to said second marriage, was to be legally presumed. But in this they were overruled by the court. They then offered to prove that, at the time of said first marriage, said Hyland was confined in jail, at Irasburgh, awaiting his trial before the county court, on an indictment for subornation of perjury; that said woman was a material and necessary witness in support of said prosecution, and that said marriage was had for the purpose of preventing her from testifying against him; which purpose was thereby accomplished.</p> <p>This evidence was objected to by the defendants, and rejected by the court; whereupon a verdict and judgment passed in favor of the defendants. To which decisions of the court the plaintiffs excepted.</p> <p>Did the county court err in ruling in favor of the presumption that Hyland was living at the time of the marriage between the woman and Burdick ?</p> <p>We contend that they did err, and that the legality of the latter marriage should have been sustained, against any evidence shortof positive proof, that Hyland was living at the time of such marriage, for the reason that all presumptions of law are in favor of the legality of such proceedings and against fraud and crime, and the life of Hyland cannot be presumed without presuming the marriage to have been illegal, and the parties guilty of a crime. Williams v. E. I. Co., 3 East’s R. 76. The King v. Hawkins, 10 do. 211.</p> <p>And it is further contended, that the usual presumption of life is not allowed to preponderate over the presumption of legality and innocence, and is not allowed in any case to be applied, when the application will tend to fix a presumption of guilt, infamy or disgrace, upon the person or persons against whom the application is to be made. The King v. Inhabitant of Twyning, 2 B. & A. 386.</p> <p>contended that the marriage of James Hyland to the pauper, Margaret, was a legal marriage; that no presumption that Hyland was dead, could be made, short, of an absence of seven years, and that the marriage of Burdick to the wife of Hyland, having been solemnized within less than two years after Hyland absconded, was void ; that the county court were correct in excluding the testimony offered' by the plaintiffs to invalidate the first marriage, for, if such testimony could be admitted, courts could make marriages valid or void, by enquiring into the motives of the contracting parties. This can never be done. If the parties were capable of contracting and did contract, understandingly, and were married by one having authority, the marriage is valid, and caunot be held void because one or both of the parties had improper motives in making the contract. In support of the decision of the county court, they cited, Stat. p. 381. do. 360. 8 Kent’s Com. 79. do 77. 1 Bl. Com. 433. Stat. 258, 363. 2 Kent’s Com. 80. Harg. & Butler’s Coke Litt. note 1, § 104, p. 79, chap. 4, Lib. 2. Story’s Conf. of Laws, p. 101, § 109; p. 103, $ 112-13, p. 104. 8 Pick. R. 423. 1 do. 506. Story’s Conf. of Laws, § 122, 123, 124, and authorities there cited. 2 Stark. Ev. 665, note, n. 680. 1 Aik. R. 174. 2Vt. R. 151.</p>

Assumpsit, on a promissory note, dated December 31, 1836, given by the defendants to the plaintiff for $113,63, payable on demand, with interest annually, on the back of which note, under date of February 23, 1838, was an indorsement of $40. Plea, the general issue. The action was commenced before a justice of the peace, and came by appeal, to the county court.

Debt, upon a jail bond, given by the defendant and one Luther Kidder, on the 16th day of September, 1835, to the plaintiff, as sheriff of Orleans county, conditioned that the said Luther, who was then a prisoner in the common jail in Irasburgh, in said county of Orleans, by virtue of an execution in favor of Edmund Clark, for the sum of $13,20 damages, and $2,20 costs, issued on a judgment recovered before Eli Hinds, a justice of the peace, on the 28th of August, 1834, which…

Assumpsit, on a promisory note. — Plea, non assumpsit. Issue to the court. On the trial in the county court, the plaintiff read in evidence, without objection, the note declared upon, and rested his case.

This was an action of book account. Judgment to account having been rendered by the county court, an auditor was appointed, who afterwards reported that the plaintiff presented an account for two months and seventeen days work, at twelve dollars per month, amounting to {$31,50, in relation to which the auditor further reported, that on the 14th of April, 1838, the plaintiff contracted to work for the defendant for the term of six and one half months at twelve dollars a…

<p>If the county court allow a juror to sit in a cause, who is legally disqualified, this is cause for a new trial, or may be ground of error, but is no sufficient reason for arresting the judgment.</p> <p>But the fact that one of the jury had been empannelled in the same cause at a former term, and sat and heard the testimony, a verdict being directed by the court, is no objection to the competency of the juror to try the cause.</p> <p>Strangers and third persons, when a judgment of a court of justice is relied upon against them, may show it collusive and fraudulent, by testimony addressed to the jury.</p> <p>The rule that a judgment of a court of competent jurisdiction cannot be attacked collaterally, extends only to those who are parties to the judgment, or privies, in interest or estate, to those who are parties.</p>

Assumpsit, in two counts. In the first count, the plaintiff alleged, in substance, that on the 15th day of November, 1835, in consideration that the defendant had then and there sold and delivered to the plaintiff, a yoke of steers for the sum of forty dollars, in part payment of the performance, by the plaintiff, on his part to be performed, of the following contract, viz., the plaintiff then and there undertook and promised the defendant to clear for the defendant a parcel…

Habeas corpus, issued to the sheriff of Washington county, upon the petition of George Holmes, who was imprisoned in the common jail at Montpelier, in said county.

This was an action of assumpsit, brought by the plaintiff as bearer of a promissory note, given by the defendant to Zuriel Waterman or bearer, for fifty dollars and interest, dated November, 12, 1832, payable on the first day of February, 1835. The defendant pleaded non assumpsit, and a note in offset, dated February 7, 1832, given by said Waterman to the defendant, or bearer, for $145,98, payable in the month of August, 1832, with interest. Issues were joined to the court.

Trespass, for a quantity of personal_property, consisting of hay, grain, horses, cattle, hogs, carts, wagons, &c. The defendants justified the taking, under a writ of attachment in favor of the defendant, Hooper, against Jotham Wilson, by virtue of which, the defendant, Downer, as deputy sheriff, attached the property in question as the property of said Jotham.

This was an action on the case. The plaintiff, in his declaration, alleged in substance, that on the 20th day of March, 1838, one Abner K. White prayed out a writ of attachment in his favor, against Barnard, the plaintiff in this suit, made returnable before the defendant, Flanders, a justice of the peace within and for the county of Lamoille, at J. Sawyer’s office, in Hydepark, on the second Thursday of April, 1838; that said writ was duly served upon the said Barnard, and…

This action Was trespass for assault and battery, and false imprisonment.

Ejectment, to recover the seisin and possession of lot No. 13, in the tenth range, in the town of Eden. Plea, not guilty, and trial by jury.

Both these cases were argued and considered together. The first was ejectment for lot No. 8, in the fourth range, in the town of Eden. Plea, not guilty and trial by jury.

Trespass for taking a mare. Plea, not guilty and trial by Jul7- Upon the trial in the county court, the plaintiff introduced evidence… Held: until quite modern times, that trover could be maintained. This case further shows that the plaintiff had been entirely divested of his property by the two previous attachments, before the defendant attached, and that the property was sold on those previous attachments. The defendant, then, cannot be sued by the plaintiff in trespass.

This was an action of assumpsit on an award. Plea, non assumpsit. On the trial the plaintiff produced the defendants’ book of records, which showed a society, regularly organized, under the statute, constituting them a corporation. The by-laws provided, that among other officers, a clerk or secretary should be chosen, and one had been regularly elected. The by-laws provided that all meetings were to be warned by the clerk, by posting up a written notice thereof.

<p>A jail bond, executed after commitment, but bearing* a date prior to the commitment, is not, on that account, invalid.</p> <p>Such bond may be declared upon without stating the date, but if. the date be stated, it must be truly stated.</p> <p>Held, — that a person, acting as deputy jailer, by the consent of the sheriff, but having given no bond for the faithful discharge of the duties of deputy jailer, or without being appointed to such office at his own solicitation or for his own benefit, is not thereby rendered incompetent to testify to the execution of a bond taken by him for the liberties of the prison.</p>

Assumpsit, for use and occupation of lands in Eden. Plea, general issue, and trial by the jury. On the trial in the county court, it was admitted that the defendant took the premises of the plaintiff, some years since, and continued to occupy them under a contract to pay rent, up to a certain time, when the defendant claimed he had surrendered the premises to the plaintiff who had accepted the surrender, and let them to another person, who was still in possession.

<p>A mortgagor, or his assignee, is the owner of the land and has a legal right to use and occupy the same until the mortgagee asserts his right of entry for condition broken, by action or by actually talcing possession.</p>

The orator, in his bill, set forth and charged in substance that, on the first day of March, J 824, the defendant Cochran, owned in fee a tract of land in Johnson, in the county of Franklin, (now Lamoille,) describing it by metes and bounds, containing one hundred acres, and of the value of eight hundred dollars; that said land was, at the time, subject to a mortgage, executed by Cochran to James Harper of New Boston, in the state of New Hampshire, to secure the payment of…