Volume 13 — Vermont Reports

Trespass on the case, against the defendant, as sheriff of Franklin county, for not returning an execution in favor of the plaintiffs and against Joel Wilson, dated November 273 1837, made returnable in sixty days from its date. Plea5 not guilty. Issue to the country. The writ in the suit, wherein judgment was rendered a~ gainst Wilson, was against Corydon Pease and Wilson. But a non est return was made as to Pease.

This was an action of book account, wherein judgment to account was rendered by the county court and an auditor appointed, who reported abalance due to the plaintiff of $35,-05. The auditor further reported that the plaintiff was a physician and that his account against the defendant accrued under the following circumstances. The defendant had, for several years, been subject to fits, and had expended money for medical attendance, from which he derived little or no benefit.

Assumpsit, to recover damages for the non performance of a parol contract to convey lands. Plea, non-assumpsit. Issue to the court.

This was an appeal from a decree of the probate court, upon a claim for advancements made by John Newell, deceased, in his lifetime, to Heman H. Newell, a son of the said John.

Assumpsit, in two counts, against the defendant as indor-ser of a bill of exchange of the following tenor. “ $7,000. Burlington, May 25, 1837. “Ninety-five days after date, pay to the order of C. T. “ Catlin seven thousand dollars for value received and charge “ to the account of yours respectfully. Guv Catlin. To J.' M. Catlin/’ The bill was indorsed as follows: C. T. Catlin. Pay C. F. Warner, Cas., or order. Dan Dav.

Assumpsit, upon a bill of exchange of the following tenor. “ Burlington, May 26, 1837. “ Ninety-five days after date, pay to the order of C. T. “ Catlin, seven thousand dollars for value received and charge “ to the account of yours respectfully. Guv Catlin. “To J. M. Catlin.” Plea non assumpsit. Issue to the court. On the trial in the county court, the execution of the bill by the defendant was admitted.

This was an action on the case for slanderous words, in seven counts. The defendant pleaded not guilty, and a special plea in bar. The substance of the special' plea sufficiently appears from the opinion of the court. * Issues were joined to the country. After a general verdict for the plaintiff, in the county court, the defendant moved an arrest of judgment for the insufficiency of the declaration.

This was an action of book account. Judgment to account having been rendered by the county court, auditors were appointed, who afterwards reported a balance in favor of the defendant of one dollar and thirty-five cents. The auditors further reported that they had allowed the ninth and tenth items of the defendant’s account, subject to the opinion of the court upon the following statement of facts.

Assumpsit, upon an award of arbitrators. Held: by virtue of a deed of conveyance from Samuel Martin to him, the said plaintiff, dated November 11th, 1834, which was recorded in book 5, pages 309 and 310, of Richmond jant| recorcjSj an¿ then and there requested this defendant to Pay to the sum of $277,36, in the said declaration mentioned, but in no other manner, way or thing, did…

Assumpsit, in two counts. The first count- was in common form, for goods sold and delivered, by the plaintiff to the defendant.

This was an appeal from the decision of commissioners appointed by the probate court to receive, examine, and adjust all claims against the estate of James Sutton, deceased, and those exhibited in off-set thereto. The commissioners allowed a claim against said estate in favor of the said Wm. M. and Harry, from which allowance Nathaniel Sutton, one of the heirs, appealed, the said Wm. M. being administrator of said estate.

<p> (In Chancery.) </p> <p>After a debt has become due, a surety may resort to chancery to compel the principal to pay the debt, that the surety may be exonerated from liability.</p> <p>Where the orator had given his promissory note to S., and D. C. and B. had subsequently given their bond to the orator to indemnify him against such note, it was held that the obligors had made it their debt to pay, and that, as between the maker of the note and the obligors of the bond, they stood as principals, and the maker as surety, and that the right of principal and surety existed between them.</p>

Assumpsit, on a promissory, note, dated Nov. 15, 1833, for $400,00, given by the defendant to the plaintiff, payable at the Merchants and Mechanics Bank in Troy, ninety days after date. Pica, non-assumpsit, and special pleas in bar, and in offset. Issues to the country.

Assumpsit, upon the following written guaranty. “ Whereas, John Peck, of Burlington, county of Chitten- “ den, holds the following claims against Horatio B. Barney? “ of Jericho, in said county, to wit, a note, dated 13th May, “ 1830, for forty-three dollars and thirty-two cents, payable “ to said Peck or order on demand with interest. Another “ note, dated 24th June, 1831, for twenty-six dollars and two “ cents, payable-to said Peck or order on demand, with in- “ terest.

Covenant, upon an instrument, in writing, executed under seal by the plaintiff and defendants, of the following tenor; ‘ Dan Day commenced his action of trespass against Ud-1 ney H. Penniman for taking away his timber and spars, £ which suit is now pending in Chittenden county court. £ The specification of said trespass is for taking a lot of spars £ and timber, rafted and lying at the wharf, in Burlington, £ claimed by Day as his property, the taking being by £ virtue of an…

Ejectment, to recover the seizin and possession of the undivided half of five acre lot number eighty-six, in Burlington. Plea, not guilt, and trial by the court. On the trial in the county court, the plaintiff gave in evi-, deuce, a deed from James Sawyer to Brett & Bunn and to the plaintiff, of certain lands in Burlington, including the land in question.

Assumpsit. The plaintiff, in his declaration, alleged in substance, that in consideration that the plaintiff would settle a debt, due from Thomas M. Taylor to Warren Hill, and procure Wm. A. Prentiss to be discharged from his liability, as bail for the said Taylor, the defendant promised to secure the plaintiff for one third part of said debt, payable in January, 1833, and the plaintiff averred performance, on his part, and notice to the defendant.

Audita Querela, to set aside a judgment rendered on the 13th day of September, 1838, by Danforth Wales, Esq., a justice of the peace, and an execution issued thereon, in favor of Edward Larkin against the complainant, Scott, and one Griffin, wherein the complainant alleged that he had been unjustly deprived of his day in court. Plea, not guilty. Issue to the court.

<p> (Practice.) </p> <p>Where an issue of fact is joined to the court, and the court, in the bill of exceptions, state the facts found by them, and conclude their judgment in the alternative, saying, that if the supreme court should be of the opinion that the plaintiff was entitled _to recover the full sum claimed, then the defendant consents that a judgment shall be entered accordingly; but, otherwise, for a less sum ; — Held, that the supreme court could not en-. force such a rule, and this court declined hearing the case until the exceptions showed a judgment rendered for one of the parties.</p>

This was an appeal from the decree of the chancellor of this circuit. The case in the court below was heard on demurrer to the bill, and from the chancellor's decree, dismissing the bill, the orator appealed to this court. A question,was now made by the counsel for the appellant, whether they ought not to be permitted to go forward in the argument.

This was a trustee process, wherein Uzziel Clark, was sued as principal debtor, and Thomas Clark as his trustee. The writ was served on the trustee on the tenth of June, 1837, and made returnable at the September term of the county court, 1837, at which term the suit was entered and continued, for a disclosure, to the April term, 1838.

Ti-ixs was an indictment for suffering a public road or highway, in Fletcher, to be out of repair. The description of the highway, as given in the indictment, sufficiently appears from the case and the opinion of the court. Plea, not guilty, and trial by jury.

Thustee process. It appeared from the disclosures of the trustees, and the testimony introduced before the county court, that John Bali, father of the principal debtor, died previous to 1830, leaving five children, viz. John Ball, the principal debtor, Abigail W. Ball, Hannah P. Ball, George W. Ball, and Lydia. Ball, heirs to his estate, who were all minors.

Debt, upon a bond given to the probate court for the district of Georgia, by the defendant, Van Duzer, as principal, and the defendant, Goodrich, as surety, dated October 9, 1829, conditioned that the said Van Duzer, who was administrator of the estate of Charles Parsons, deceased, should faithfully administer said estate. The condition of the bond was in the form prescribed by law.

This was an action of book account. Judgment to account having been rendered in the county court, an auditor was appointed, who afterwards reported that he notified the defendant of the time and place of hearing, who did attend, and “on the fifth day of February, 1840, examined and adjusted the book accounts of the plaintiff and defendant, from which he finds a balance of six dollars due to the plaintiff.” The auditor appended to his report the account of the plaintiff,…

<p>Where a person leased certain premises for the life of the lessor, reserving a right to sell the premises, and, in case of such sale, the lessee was to surrender the possession on the first of October next, after such sale, and the lessee covenanted to pay $130, on the day of executing the lease, (September 30, 1839,) and $130 annually, thereafter, during the continuance of said lease, and paid the $130 on the day of the execution of the lease, and the lessor, afterwards, on the same 30th September, 1839, executed a deed of the premises so leased, to a third, person, who took possession on the first of October, 1839; it was held, that the $130 so paid, was for rent, paid in advance, and that the lessee could recover it back of the lessor, with interest, in an action for money had and received.</p>

Assumpsit, on a parol award. The award set forth in the declaration was, that on the seventeenth day of May, 1836, the arbitrators (naming them) awarded that the defendant should pay the plaintiff $22,25 in money, and should deliver to the plaintiff, in a reasonable time, a pair of cart wheels, with iron bands on the hubs, &c. to be worth twelve dollars.

Trespass on the case, against the defendants for building a dam across Pike river, in Enosburgh, thereby causing the water to overflow the plaintiff’s land and impede the plaintiff in the use of his starch factory, situated on said river, above said dam. Plea, not guilty-, and trial by jury.

Trespass, quare clausvm fregit. Plea, not guilty, and trial by jury. On the trial in the county court, the plaintiff gave in evidence a deed of warranty from the defendant to Samuel Twambly, dated March 30, 1824, duly executed and recorded, conveying the land in question, describing it as being u the same land which was deeded by Thomas Clark to Thomas Clark, jr.,” the defendant.

Assumpsit, in two counts, wherein the plaintiff alleged that the defendant* in consideration that plaintiff would lend the defendant the plaintiff’s sulkey, promised to use and drive the sulkey moderately and prudently. The plaintiff averred that he lent his sulkey to the defendant, and assigned, for breach* that the defendant so immoderately and negligently drove said sulkey that, by means thereof, he overturned and broke it. Plea, non assumpsit, and trial by jury.

<p>Where a disseisor has taken a deed from atenant in common, of the latter’s interest in the land, no other tenant in common can maintain ejectment against him, until he shall thereafter commit an ouster of the plaintiff.</p>

This was an appeal from the probate court. The decree appealed from was one granting leave to the executor to sell real estate, for the purpose of paying the debts of the testator. After the decree, in thé probate court, the executor died. The administrator of the executor now offered to enter his name in the case and proceed to the hearing.

Trover, for a pair of horses and a double wagon, attached by the plaintiff, a legal officer, and receipted by the defendant. Plea, not guilty, and trial by jury. On the trial in the county court, it appeared, from the evidence, that the plaintiff, as a legal authorized officer, had attached the horses and wagon, in question, as the property of one Williams, by virtue-of two writs, one in favor Wm.

Trespass, for taking and carrying away plaintiff’s sloop, called the General McComb, and a quantity of military stores, arms, &c. The defendant pleaded the general issue, and, after a trial and verdict for the plaintiff, the defendant filed the following motion to dismiss the suit, viz; ‘ And now the defendant, in his own proper person, comes ‘before the court here, and insists that this court have no ju* ‘ risdiction of this cause, nor any legal power to hear, try, 1 and…

Ejectment, to recover the seizin and possession of a parcel of land, described as follows : — Beginning at the southeast corner of the first division lot, drawn to the right of Robert Cochran; thence north 60 deg. east, ninety-nine rods, to the shore of lake Champlain, on the westerly side of North Hero; thence northerly, twenty-eight rods; thence easterly, on a line parallel with the first mentioned line, one hundred and three rods, to the shore of lake Champlain, on the…

This was an action of book account, in which judgment to account was rendered in the county court and auditors appointed who reported as follows: £ The auditors report that the said Wood exhibited his ac- ‘ count,’ (which was annexed to the report.) ‘ The defend- ‘ ant did not exhibit any account. The auditors disallow the ‘ whole of the said Wood’s account, and find that there is e no balance due either party.

Audita Querela, to set aside an execution, issued by the clerk of Addison county supreme court.

This was an action of book account, wherein a judgment to account was rendered in the county court, and an auditor appointed, who afterwards reported, in substance, that on the hearing before him, it was proved that, in January, 1838, the defendant, who resided in 'Westford, in the county of Chit-tenden, having sold his farm there, contemplated removing thence, and that his wife came to Bridport, with his consent, to visit her friends, who resided there, and brought her two…

<p>It is no defence to a note, that the consideration thereof was a promise, by the payee, to give a deed of a pew, by a certain time thereafter, which was not done within the time specified, nor until after the commencement of an action on the note.</p>

ThoveR, for a quantity of axe-helves. Plea, not guilty. Issue to the court.

This was an appeal from an order of removal, made by the town of Starksborough, of one Lyman Bostwick and wife, to the town of Hinesburgh. Plea, that the pauper was unduly removed, and trial by jury.

Assumpsit, upon a receipt, executed by the defendant to the plaintiff in the following words, viz: — “ Received of Ileman Spafford, one hundred bushels of corn, which I am to deliver to him on the seventh day of February next. Arial Richardson.” December 29, 1838.” The ad damnum, in the writ, was two hundred dollars.

This was an action brought on the statute, to recover the penalty for aiding and assisting in transporting one Phillips, a pauper, from the town of Dorset to the town of Wallingford, with intent to make the town of Wallingford chargeable with his support. Plea, not guilty, and trial by jury.

Debt, upon a decree of the court of chancery, duly enrolled, in favor of the plaintiff against the defendant, for the payment of a balance of an account between the parties, as partners. Demurrer to the declaration and joinder. There were no objections to the form of the declaration. The question presented for the decision of the court was, whether an action of debt could be maintained upon this decree of the court of chancery.

Action on the case, against the defendant, for not delivering to plaintiff certain property, taken by plaintiff, as deputy sheriff, by virtue of a writ of attachment in favor of one Allen against Moses M. Strong, and a writ of sequestration in favor of Reuben R. Thrall against said Moses M., which property the defendant receipted to the plaintiff, and, in his receipt, agreed to safely keep the property, free of expense, and re-deliver it to the plaintiff on demand.

Audita Querela, to set aside a judgment rendered by F, W. Hopkins, justice of the peace, in favor of the defendants, against the complainant, on the 28th day of December 1839.

Trespass, for taking the plaintiff’s horse. Plea, not guilty, with notice that the defendant, as an' authorized person, attached the horse in question, as the property of Gardner Eaton, by virtue of certain writs against the said Gardner. Issue to the court. On the trial before the county court, the testimony of Nathan Eaton, became material to show title in the plaintiff to the horse in question.

Trover, to recover for a note, given by Daniel Lyon to Samuel Richardson, Jr., dated 20th May, A. D. 1838, for $100, with interest.

Assumpsit, on a joint and several promissory note, for one hundred dollars, signed by the defendants, made payable to James Everson, or bearer, in six months from date, with interest, dated Nov. 21, 1837.

<p>In trespass for assault and battery, if the defendant pleads not guilty, and accompanies the plea with a written notice of special matter, which, in substance, is equivalent to the plea of son assault demesne, if the evidence on the trial is sufficient to sustain such plea, the defendant is entitled to a verdict, although the plaintiff may, in the first instance, have made out his cause of action.</p> <p>If the notice is defective, in some points, and the evidence introduced by the defendant, on the trial, supplies those defects, and no objection is made by the plaintiff, either to the notice or the evidence, until after a verdict has passed for the defendant, it is then too late to object to the notice for its insufficiency.</p>

Audita Querela, to set aside a judgment recovered before a justice of the peace, in favor of the defendant against the complainant, in an action of book account, for $41,08, damages and costs.

<p>This was an action of book account. Judgment to account having been rendered in the county court, an auditor was appointed, who subsequently reported, in substance, as follows:—</p> <p>The plaintiff agreed with the defendant, to make for him two sets of grave stones, of blue marble, to be finished and ready to be set up after planting time in the spring of 1839. The defendant insisted, that the stones were to be procured from the Simmons quarry, and the plaintiff insisted that there was no place agreed upon whence the stone should be procured. It appeared that the blue stone, usually wrought by the plaintiff, was from the Simmons quarry; that one Taylor was owing the plaintiff stone, and the plaintiff expected to obtain the stone from him ; and the stone, which he was in the habit of procuring, was from this quarry. These facts were known to the defendant, and both parties expected that the stone would be obtained from the Simmons quarry, but the auditor did not find a special contract to that effect.</p> <p>On account of the sickness of Taylor’s family, the plaintiff was unable to procure the stone from him in season to comply with his contract, and he procured the stone from Rutland. It appeared that the stone which was procured from Rutland was of as good, if not better quality, than the Simmons stone. The plaintiff finished the grave stones, and had them ready for the defendant, on the 25th day of May, 1839. The defendant afterwards refused to receive them, and the plaintiff kept and preserved them for the defendant.</p> <p>The auditor, from these facts, allowed the plaintiff’s account at $25,09.</p> <p>The defendant excepted to the report, for the reason that the stone was not procured from the Simmons quarry, and because the defendant never accepted the grave stones of the plaintiff.</p> <p>The county court accepted the report and rendered a judgment thereon for the plaintiff to recover against the defendant the amount found due by the auditor. The defendant excepted to the decision.</p> <p>1. The county court erred in accepting the report of the auditor, because the auditor finds that, at the time the contract was entered into, it was undoubtedly understood that the stone contracted for were to come from the Simmons quar~ ry. Whatever was expected and understood by the parties, at the time, constitutes as much a part of the contract as it would have done, if it had been expressed. The great object to be sought for in putting a construction upon a con-». tract, is, to ascertain and give effect to the intentions of the parties; and the leading principle, on that subject, is, that whatever is expected on one side, and known to be expected on the other, is to be deemed a part of the contract, and it is a matter of no importance whether all the parts of the contract be expressed, or some of them implied from the circumstances attending the transaction. Gunnison v. Bancroft, 11 Vt. Rep. 490.</p> <p>2. It is believed to be essential, to entitle a party to sustain an action on book, that there should have been an actual transfer of the property from the possession of the plaintiff to that of the defendant. And it is said, by this court, Reed v. Barlow, 1 Vt. Rep. 97, that a different rule would be dangerous in the extreme. If a recovery can be had, in an action on book, for goods not delivered, and services not performed, by the testimony of the party to the contract, few cases will remain to which the salutary rule of law, that a party cannot be a witness for himself, will apply. Need v. Barlow, 1 Vt. R. 97. 1 Aik. 145.</p> <p>1. The auditor was right in finding that the contract, on the part of Mattison, was fulfilled by his having finished the stones by the time agreed upon by the parties, and by his having procured stone of “ as good or better quality” than the stone from the “Simmons quarry,” especially since there was no express agreement or undertaking to procure the stone from the Simmons quarry, and nothing said in the contract from what quarry or place they should be taken. And it does not appear that the quality of the stone, or the circumstance of their having been procured from Rutland, formed the ground of Wescott’s refusal to accept them.</p> <p>2. The decision of the auditor was correct that there had been a sufficient delivery of the stone. When, by the terms of the contract, the money is to be paid before the delivery of the goods, or, if there be no agreement as to the time of payment, and the vendee refuses to take away or accept the goods, in either case the vendor may recover the price agreed upon by action of indebitatus assumpsit fot goods bargained and sold. Slade’s case, 4 Co. 93. Shep. Touch. 225. Peake’s N. P. cases, 41. Thompson v. Gray, 1 Wheat. 75. Penni-man v. Hartshorn, 13 Mass. R. 87.</p> <p>When the terms of sale are agreed upon, every thing that the seller has to do with the goods is complete. The contract of sale becomes absolute without actual payment or delivery, and the property vests in the buyer. Hinde v. Whitehouse, 7 East. 572. - v. Baxter, 7 B. & C. 360. Fletcher v. Howard, 2 Aik. 115.</p> <p>Delivery is frequently to be presumed from circumstances, as marking the goods, making them up to be delivered, removing them for the purpose of being delivered, and separating them from other articles. 1 H. Black. R. 363. 14 East, 312. Barney v. Brown, 2 Vt. R. 374.</p> <p>If the subject matter of the contract does not exist in re-rum natura, at the time of the contract, but remained thereafter to be fabricated out of raw materials, it is consequently incapable of delivery, and not within the statute of frauds, and the contract is valid without a compliance with its requisitions. Graves v. Buck, 3 M. & S. 178. The case rests entirely on contract, and when the article is finished, the right of property is in the purchaser, and the vendor is entitled to payment on the refusal of the vendee to receive it. Marten v. Mangles, 1 Taunt. 318. 5 Johns. R. 395. 5 Serg. and Rawle, 32, Id. 19.</p> <p>It is sufficient for the manufacturer to have the article in a state for delivery. These rules apply with the greater force where the article, which is the subject matter of the contract, is of no value except to the purchaser, and for the particular purpose for which it was designed.</p>

<p>Trespass, for cutting timber on plaintiff’s close, in Benson.</p> <p>Plea, not guilty.</p> <p>Upon the trial below, it became material for the plaintiffs to show title to the land in dispute, being part of the Blair lot, so called, situate south of and adjoining the east and west road, leading from, Benson to Hubbardton, bounded north on said road, and south on the south line of the Blair lot, of which it is a part. Itapeared that, in November, 1819, Abigail Owen, wife of the plaintiff, and Anna Foster, wife of the defendant, owned said piece of land, and other lands adjoining, jointly, the same having been set off to them by a committee appointed by the probate court, in 1813, and that, in said month of November, the parties agreed upon Daniel Root and Joseph Bascom, to make partition of all the lands which they so jointly held and owned between them ; that said Root and Bascom then proceeded to make such division, and to set off to said Abigail the land situate on the south side of said road, which said Abigail and Anna had owned jointly, intending to set off all on the South side of the road, and made out a survey thereof, in writing; (which was made a part of this case,) but it appeared that the said Root and Bascom began at the north-west corner of said south piece, and ran south 10 deg. west, and measured only about eighty rods from the north line south, but found no line, and, from thence, they measured across and called the land thirty rods in width, and put the same down in their survey as being one hundred and sixty rods north and south, supposing that one hundred and sixty rods extended to the south line of the lot, and supposing that the line of the lot ran upon the degrees before mentioned. It further appeared that the line of the lot, owned by the said Abigail Owen and Anna Foster, ran on a line south 21 deg. west, which would leave, as ran by the said Root and Bascom, a gore of land west of the land owned by the said Abigail and Anna, and that this had never been claimed nor occupied by the said Isaac Owen and wife. It appeared that there were seven or eight acres of land cleared on the north end of the lot; but that the south end, which is south of the one hundred and sixty rods, was not cleared, but was valuable for timber, and that the south line of the Blair lot was a well known line. It further appeared that the plaintiffs went into possession of the piece of land south of the road, occupying the land whichi was cleared, but not cutting timber nor doing any act of ownership south of the one hundred and sixty rods, but claiming to the south line of the Blair lot, and have continued their possession to this time ; and it further appeared that the said Foster and wife also had, from a very short time after the division was made, claimed and contended that the land south of the one hundred and sixty rods, was undivided, and jointly owned by them and the said Owen and wife, but that no actual possession had been taken of the same nor any act of ownership done thereon, by either of them, except as before stated, until the defendant cut the timber complained of.</p> <p>It also appeared that neither Anna Foster nor her husband were present at the time when the division was made, and that, at that time, the committee, who made the division, intended to divide, and supposed they had divided the whole land, and that it was mutually expected that quit-claim deeds should be given according to the division; but that, very soon after the division was made, Foster discovered that all the land had not been divided, and refused to execute a quitclaim deed, or to abide by said division, and, in fact, had always continued to claim that the land south of the one hundred and sixty rods, was undivided.</p> <p>It appeared that, from the north line of the land so set off, to the south line of the Blair lot, is 176 rods, and that the trespass, if any was-committed, was south of 160 rods from tire north line of the lot, and north of the south line of the lot.</p> <p>The plaintiffs claimed that they had acquired a good title to the whole of said piece of land, thirty rods in width, and from the north to the south line of said Blair lot; but the court decided, and so charged the jury, that the plaintiffs, having entered into the exclusive possession under the survey and division aforesaid, their occupancy of the 160 rods south, from the north line aforesaid, would not operate to acquire for them a title to any lands further south than the 160 rods aforesaid, unless they had exercised some act of ownership south of the 160 rods, and that the lands south of the 160 rods and north of the south line of the Blair lot, must be treated as undivided between the said Abigail and Anna. Whereupon the plaintiffs excepted to this opinion of the court, and submitted to a nonsuit, subject to the opinion of the supreme court, &c.</p> <p>The survey of the land set to the wife of the plaintiff, was made a part of the case. The particulars of that survey sufficiently appear from the opinion of the court.</p> <p>1. The division of the joint landá having been made by persons mutually agreed upon, that division ought to be established, according to the intent of the parties.</p> <p>2. If the defendant did not purpose to yield to the division, as intended by those ''who made it, he should have declined acting on it altogether, and continued a common occupancy, or called for a new division. He should not be permitted to occupy the part designed for him, and correctly described, until the statute had run upon it and his right become perfect, and then turn round and claim another portion because a mistake was made in the description in setting out the land. He did no act to show that he insisted on his claim until the statute had run on that portion set to him. He acquiesced in the division, in deed, if not in words. Stevens v. Griffith, 3 Vt. R. 448.</p> <p>3. The possession might, with propriety, be extended to the whole, for, as the plaintiff entered into possession of a part of a lot, located and bounded by definite bounds, claiming the whole, his possession extends to the whole lot. Bap-good v. Burt, 4 Vt. R. 159. Beach v. Sutton, 5 Id. 213.</p> <p>No constructive possessiobcan be claimed by the plaintiffs.</p> <p>1. The parties intended to have a division made of their estate ; but, in consequence of a mistake, no division was in fact made. It was the intention of the parties to have the estate divided by the persons agreed upon, and to complete the division by making and executing proper deeds; but defendant refused to execute any deed, in consequence of the mistake in not dividing the whole estate.</p> <p>2. One tenant in common or coparcener cannot acquire a title in opposition to his co-tenant, unless the possession is adverse and exclusive, with an actual ouster, and in this case unless a division was in fact made. 4 Kent's- Com. 366.</p> <p>3. The occupancy of that part of the lot, included in the survey by the plaintiff, being 160 rods, cannot, by construction, extend to the south line of the Blair lot, as the constructive possession cannot extend further than the title under which the party claims. Brooks v. Tyler, 2 Vt. R. 350.</p> <p>4. There may be a division in fact made between tenants in common, which might be good between the parties; but, in this case, the defendant refused his assent to the division attempted to be made, and always claimed title, in his wife, to the land in dispute. The decision of the court was correct, and the nonsuit ought not to be set aside.</p>

This was an action of book account, wherein judgment to account was rendered, in the county court, and auditors were appointed, who subsequently reported, that the plain-* tiff’s account was for labor of plaintiff’s son, performed for the defendant.

Assumpsit, on a promissory note, dated March 31, 1840, for § 129,69, payable to Francis Slason, or order, and by him indorsed to the plaintiff. The writ issued against the goods and chattels of the defendant, and, for want thereof, against his body, and was served upon the defendant by attaching his property.

<p>The statute, giving a penalty against a highway surveyor for not clearing the road of obstructions, to be recovered by any one who will prosecute for the same, does require that the authority, issuing the-writ, shall make a minute of the day, month, and year, on which the same issues.</p> <p>If such minute be not made the suit will be dismissed, on motion.</p>

<p>Where partners, as attorneys, rendered services for a client, and afterwards an agreement was made between one of the partners and such client that the services so rendered and services thereafter to be rendered, should be applied in payment of a debt due from such partner, alone, to the client, and this agreement was not kno\^ to the other partner, it was held, that, after the death of the partner making- the agreement, the surviving partner could not recover for services rendered by the firm after such agreement; but, as the agreement was executory, and without consideration, he could recover for the services previously rendered.</p>

Trespass, de bonis asportatis. The defendant pleaded not guilty, and a special plea, justifying the taking, by virtue of a rate bill and warrant, as collector of the fifth school district, in Danby ; in which special plea the defendant averred, among other things, that he was elected collector of said district, at a meeting thereof, duly warned, held on the third day of February, 1838, as by the records of said school district would more fully appear.

Trespass, to recover the value of a horse, taken by Jona~ than C. Thrall, as constable of Rutland, on an execution in favor of Reuben R. Thrall, against Harris Hosford, on the 12th October, 1888, and sold on said execution.

Petition for a new trial, founded on the discovery of new and material testimony.

<p>(In Chancery.)</p> <p>An action of assumpeit cannot be maintained by one partner against another, to recover an unliquidated balance of a copartnership transaction.</p> <p>To settle and adjust a copartnership, and to recover the balance due the active, from the dormant, partner, who has been in the receipt of none of the property or avails of the copartnership, but owes a balance to the active partner from its being a losing concern, a bill in chancery is the only remedy.</p> <p>The statute of limitations is not applicable to such a bill. But the court of chancery, in analogy with the statute, will, from the lapse of the same time, presume a settlement and payment.</p> <p>This the court will not do when such presumption is rebutted and repelled by what appears in the bill and answer; nor when the orator's ease is within any of the exceptions in the statute.</p> <p>That part of' the time relied on to raise a presumption of settlement, which has been consumed in au unsuccessful action of account, by the orator against the defendant, which the defendant successfully resisted on the ground that he was not the receiving partner, and therefore ought not to account, should be deducted from the whole time.</p> <p>When the plaintiff is, at law, driven to a nonsuit, by the decision of the court that the form of action cannot be sustained, he may commence another action in one year from the termina~iom of that action, before the statute of limitations will run, at law, or any presumption be raised, or ladies imputed, in chancery.</p>

<p> (In Chancery.) </p> <p>Whenever an estate is in the process of settlement in the probate court, and the administrator has a claim to any portion of the property, claimed by the creditors as belonging to the estate, and the claim of the administrator is adverse to that of the creditors, it is competent for the creditors to resort to a court of chancery to have this controversy settled; and if the court of chancery decree against the administrator, they fix the amount for which he is chargeable, on account of such property, and require him to charge himself with that amount, in rendering his account in the probate court; and the probate court still retains the entire control of the settlement of the estate, and the proceeding in chancery is merely in aid of the probate court.</p> <p>It is( competent for a debtor, who is largely indebted, and insolvent, even, to prefer any of his bona fide creditors. This he may do, too, by a deed of real estate, duly executed and delivered to a third person, in trust, to be delivered to the grantee, at the decease of the grantor, unless he shall otherwise direct, during his life time.</p> <p>If no subsequent direction be given, the deed, upon the decease of the grantor, takes effect from the first delivery.</p> <p>If, about the time a deed is shown to be executed and delivered, the grantor appears generally sane, and in possession of sufficient power of mind to comprehend business of that character and extent, the burden of proof rests upon those who would avoid the deed, on the ground of insanity or imbecility of mind,</p> <p>When this court reverse the decree of the court of chancery, and order further proceedings in the case, the case is to be remanded to that court, with the mandate of this court, directing in what manner to proceed.</p>

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

<p>Ejectment, to recover the seizin and possession of certain lands in Manchester.</p> <p>The action was entered at the September term of the county court, 1834, and a final judgment was rendered for the plaintiffs, by default, in 1839. In the intermediate time, a judgment was rendered for the plaintiffs and the cause was reviewed by both defendants.</p> <p>The plaintiffs claimed title to the premises as assignees of a mortgage deed from Aldridge Sutherland to Lyman Harrington, dated August 26, 1833, given to secure the payment of a note for six hundred dollars, which was due when the suit was commenced, and by virtue of a mortgage from , Silas Sutherland to the plaintiffs, dated February 11, 1834, secure the payment of a note, and other moneys, which were not due at the time when the suit was commenced, but , . _ . . , , were due when final judgment was rendered.</p> <p>It appeared that Aldridge Sutherland conveyed the lands in question to the defendant, Silas Sutherland, by deed dated February 11, 1834.</p> <p>On the defendants’ motion to redeem the premises, the plaintiffs contended that the amount due on both the mortgages was the sum due in equity ; — but the county court decided that the defendants might redeem by paying the amount due upon the first mortgage, only, with interest and costs of suit, by the first day of April, then next. To this decision the plaintiffs excepted.</p> <p>On the hearing, on the assessment of damages, after judgment by default, it appeared that, when the suit was commenced, the defendant, Morgan, was in possession of the premises as tenant of the other defendant, and continued in possession during that season, and no longer, and that this suit had been delayed, by an injunction from the court of ■chancery procured by the defendant, Sutherland. Upon this showing the defendant, Morgan, contended that judgment should not be rendered against him ; — but the county court decided that, as he was in possession when the suit was commenced, judgment should be rendered against him, as well as the other defendant, and assessed damages against both defendants, jointly. To this decision the defendant, Morgan, excepted.</p> <p>The sum due in equity, in this case, to the plaintiffs, is the principal and interest of the notes, upon which the first mortgage, named in the bill of exceptions', is founded.</p> <p>By what other mortgage was the land, mentioned in the declaration, granted, on the forfeiture of which this action was brought ? None. By no other could the plaintiffs show title. On no other could the county court exercise its equitable powers. Slade’s Comp. Laws, p. 80, sec. 76.</p> <p>With regard to the second question presented by the bill of exceptions, it is believed that the plaintiffs can^only recover damages against the defendants, jointly, during the continu-anee of Morgan’s possession. At common law the defendant in ejectment was liable for mesne profits, on the ground of his being a trespasser, and no case can be found where he is . treated as a trespasser lor a longer time than while m possession. 2 Stark. Ev. p. 544, note 1, and cases there cited, show the extent of his liability.</p> <p>Trespass for mesne profits is only for the u.se and occupation of the lands. Gill v. Cole, 1 Har. & Johns. 403. It may be brought against a third person to whom possession has been transferred pending an action of ejectment by the defendant therein. Jackson v. Stone, 13 Johns. R. 44T. The defendant may show the plaintiff in possession of the land between the demise, laid in the declaration, and the judgment in ejectment. West v. Hughes, 1 Har.& Johns. 574.</p> <p>These cases establish the principle that the duration of possession limits the defendant’s liability,and that the judgment in ejectment is no evidence of the extent of that liability.</p> <p>The assesssment of damages, in ejectment, under our statute, (Slade’s Comp. Laws, p. 85, sec. 88,) can only be made in cases where, at common law, an action of trespass for mesne profits would lie. Atkinson v. Burt et al. 1 Aik. R. 329. Smith v. Benson, 9 Vt. R. 142.</p> <p>The rights of the parties are not altered by the statute, from what they were at common law. See cases above cited.</p> <p>It follows, then, that damages could be assessed in this case against the defendants, jointly, only during Morgan’s tenancy.</p> <p>The intent of the seventy-sixth section of the judiciary act was, that the end sought by a bill ill chancery might be attained through a court of law, at a saving of litigation, expense and delay. The statute is therefore remedial, and should be construed liberally for the advancement of the remedy.</p> <p>For effecting this object, chancery powers are given to courts of law, and chancery proceedings are enjoined. Thus the action, proceedings, and judgment in ejectment upon mortgage, are of strict legal form and character. After judgment, the defendant moves to redeem. This motion is a subject matter properly belonging to chancery, and hereupoii proceecqngS assume the character of proceedings in chan* ceiT- The motion is a bill to redeem. An account is taken as in chancery, and a decree is made which is, substantially, the same as in chancery.</p> <p>The court sits as a court of chancery, and a court of chancery would not allow the redemption of one mortgage without a redemption of all others upon the same premises, due to the same party. Bac. Ab. Mortgage, E. 5. Willie v< Lugg, 2 Eden, 78.</p> <p>It may be objected, that, in most actions, the plaintiff shall recover for no trespass or default which had not happened before the commencement of his suit. True, and the reason why is technical. The plaintiff must state specifically the injury done him, that the defendant may be prepared to defend, and he cannot recover except secundum allegata. This necessarily implies that the thing complained of has already occurred. So in this action the plaintiff alleges an ouster as a thing past, and he cannot recover unless he prove this by showing a forfeiture of the mortgage before suit brought. He does not allege the non payment of money due, nor seek to recover it; but he sues to recover the seizin of lands, and damages for a tortious entry and detention. These the judgment of court gives him, and his action is then at an end. The question in this case then arises under the defendants’ motion. The objection, therefore, is wide of the mark. In the action of account, at common law and by statute, the account is adjusted up to the time of taking it. So, in the assessment of damages, interest, payments, &c. are adjusted to the time of judgment. Ambler v. Bradley, 6 Vt. R. 119.</p> <p>The statute of 1806, p. 95, extends the provisions of the previous statute “ to all cases of mortgages wherein the payments are secured to be made by instalments, and a part only of the same shall have become due.” The necessity for this last statute is found in the phraseology of the first, which limited the inquiry of the court to the sum or sums of money due, — that is, due at the date of such inquiry. But, suppose the case of a mortgage, the money payable by instalments, and they all due at the date of the decree, but only a part due at the date of the commencement of the suit. The latter statute seems not to have been framed for such a case, while the older seems quite broad enough to authorize the court to embrace in their decree the whole sum due at the time making it. And yet no real difference appears between the case supposed and the one on trial.</p> <p>II. The question, arising under the exceptions taken by the defendants, is, whether on the inquiry of damages,- after judgment by default, in ejectment, against two, joint and full damages shall be assessed, where one of the defendants, the original tenant of the other, proves that he has occupied the premises only a portion of the time following the service of the writ.</p> <p>In ejectment, under our statute, the' value of the occupancy of the premises, during the time that the plaintiff has wrongfully been kept out of possession, that is, up to the time of trial, is given as damages, thus doing away the necessity, and, with that, the propriety^, of a Subsequent action of trespass for mesne profits. And these damages are incident to a recovery, being considered as occasioned by the trespass set forth in the declaration. Comp. St. p. 85. Atkinson v. Burt, 1 Aik. 329. Strong v. Garfield, 10 Vt. R. 502.</p> <p>In trespass against two or more, whether the defendants join or sever in pleading, if the jury find all guilty of the same act of trespass, or if one make default, the damages cannot be severed. Sir John Hey don’s case, 11 Co. 5. 5 Burr. 2790. Tidd’s Pr. 331. 1 Arch. Pr. 195. Bohun v. Taylor, 6 Cowen, 313.</p> <p>So if two or more defendants suffer judgment by default, the damages cannot be severed, even in trespass, as it is said, 1 Str. 422, 2 Arch. Pr. 25, for the default of all is a confession of the cause of action by each, and equivalent to a general verdict of guilty against all. Aslin v. Parkin, 2 Burr. 665. Goodtitle v. Tombs, 3 Wils. 118. Baron v. Abeel, 3 Johns. 481.</p> <p>In this case an interlocutory judgment passed against both defendants on their default. Consequently damages must be assessed against both, and if these damages cannot be severed, then they must be assessed according to the act of the most guilty.</p> <p>But without relying upon the legal effect of the default, the case shows both defendants to have been in possession of the premises, Morgan as tenant ofy Sutherland, at the date and service of the writ; consequently both were in fact guilty of the ouster alleged.</p> <p>And further, both have appeared in court by their joint attorney, have jointly pleaded, and, after one judgment against them, have jointly reviewed, and finally suffered judgment strictly by nil ¿licit.</p>

Assumpsit, on a joint and several promissory note, given by Orange Green and the defendant to the plaintiffs. Plea non assumpsit, and trial by the court. The action was tried at the June term of the county court, 1840. On the trial the plaintiffs read in evidence the note declared upon.

Assumpsit, for goods sold, labor done, money paid, &c. Plea, non assumpsit, and a plea in offset on sundry promissory notes executed by the plaintiff to the defendant. Issues were joined to the country.

Assumpsit, on a promissory note. The defendant pleaded, in abatement, that Henry Patchin, who became recognized, before the magistrate who signed the plaintiff’s writ, to the defendant to secure costs of prosecution, was, at the time of entering into said recognizance, a minor, under the age of twenty-one years, to wit, of the age of sixteen years. To this plea there was a general demurrer and j oinder.

<p>Assumpsit, against the defendant as indorser of a bill of exchange, for two thousand five hundred dollars, drawn by Doane & Potter, upon Comstock &, Martin, dated August 14, 1839, payable to the order of the defendant, at the Farmers’ bank in Troy, New York, and by the defendant indorsed to the plaintiffs.</p> <p>Plea, non assumpsit, and trial by jury.</p> <p>On the trial in the county court, the plaintiffs offered in evidence the bill of exchange declared upon, the execution of which was admitted by the defendant, to which the defendant objected, because it was not indorsed to the plaintiffs, it appearing to have been indorsed in blank, and filled up thus : “ pay to M. Clark, Esq. Cashier.” It also appeared in evidence that Mr. Clark was then cashier of the Bank of Manchester, and this was the uniform mode of indorsing paper to banks. This objection was overruled by the court and the evidence admitted. The plaintiff then offered Nathan Doane, as a witness, who testified that Doane & Potter had, in the hands of the defendant, funds sufficient to pay said bill of exchange; but, on cross examination he said that the defendant was selling flour on commission for said Doane & Potter and that the said Doane & Potter had unsettled accounts with the defendant to the amount of fifteen thousand dollars, and that no funds had been placed in the hands of the defendant particularly for the purpose of paying the aforesaid bill of exchange, although the witness believed that defendant had, at the time of indorsing the bill and hitherto, more than sufficient to indemnify him against this bill. The plaintiff then offered in evidence a paper, purporting to be a protest, made by Philander Wells, notary public, to which the defendant objected, because said paper had not attached to it a seal of wax or wafer, which objection was overruled by the court, and the paper admitted to be read in evidence as a protest duly authenticated. The plaintiffs then offered in evidence the deposition of William A. Far-rand, who testified that he was a clerk in the Farmer’s Bank of Troy, and that the acceptance of Comstock & Martin was presented on the 21st day of October, 1839, at the request of the Troy City’Bank, at the Farmers’ Bank in the city of Troy aforesaid, and payment demanded of the cashier of said Bank and was refused for want of funds of the acceptors. Thereupon P. Wells, Esq., notary public, duly protested the same, and notices of protest on the afternoon of said day were put into the post office at Troy aforesaid, directed to the drawers and indorser, and that the notice to the defendant wag ¿jrecte¿ to at Rutland, Vermont, and that said no-tices were put into the post office at Troy aforesaid by this deponent; which deposition was objected to, but the court overruled the objection and admitted the deposition.</p> <p>The defendant then offered testimony tending to prove, that there were now, and had been for more than twenty years, two post offices in the town of Rutland, one designated and known as the Rutland post office, and the other as the West Rutland post office; that the defendant resides in West Rutland and has for more than twenty years resided there, and there is his place of doing business and where he receives his letters; that in the year 1839, the post office at West Rutland was kept in the store of the defendant, and that on the eighth day of October, 1839, Philander Wells, the Notary Public aforesaid, had forwarded, by mail, written notices of protest, on other paper than that in suit, directed to the defendant at West Rutland, Vt. The defendant also offered evidence tending to prove that a letter directed to Rutland, and sent by mail, would go to the Rutland post office, and that the letter which William A. Farrand testified was mailed by him at Troy, directed to Francis Sla-son, Rutland, Vt., containing notice of protest, was received at the Rutland post office, and there remained for the space of twenty days, and until the clerk in said office re-mailed said letter, and directed the same to West Rutland. To the admission of this testimony the plaintiffs objected, and the court rejected the testimony.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant excepted to the decisions of the’county court.</p> <p>1. There is a variance between the contract declared upon and the one given in evidence, in this, that it was between other parties than the parties to this suit. The plaintiffs declared as the indorsees of a bill of exchange, and on the trial gave in evidence a bill, indorsed to M. Clark, Esq., cashier. For this variance, the plaintiffs should have been nonsuited.. Gordons. Austin, 4 T. R. 611.</p> <p>By the indorsement, the legal interest in the bill vested in M. Clark, and he alone could sue thereon, even if it had been proved that M. Clark was a trustee to receive the money for the use of the plaintiff. 11 Johns. Rep. 52. Fair-field v. Adams, 16 Pick. 381. The possession of the bill by the plaintiffs was not evidence that it was their property, so long as it was assigned' to another. Welch v. Lindo, 7 Cranch, 159.</p> <p>2. The protest was inadmissible in evidence for want of a seal. The word seal, has acquired a technical meaning by judicial decision, and whenever a seal is required to be affixed to an instrument, either by the statute or the common law, it is understood to mean an impression upon wax, wafer, or other adhesive substance. 4 Vt. R. 471. 5 Johns. R. 237.</p> <p>3. Is the testimony of Doane sufficient, in point of law, to dispense with the proof of notice to the indorser of the dishonor of the bill ?</p> <p>The indorser waives his right to require proof of demand and notice, only where he takes security to indemnify him against a particular indorsment. Prentiss v. Danielson, 5 Conn. 175. 1 Esp. 302. Or where, before the bill becomes due, the drawer assigns all his property to the indorser. Bond v. Farnham, 5 Mass. 176.</p> <p>An assignment, made after the indorser has been discharged, does not renew his liability. Tower v. Dwell, 9 Mass. 332.</p> <p>The court erred in rejecting the testimony offered by the defendant. The obligation of the indorser is conditioned that the holder will present the bill, at maturity, to the acceptor for payment, and in case of non payment, to give notice to the indorser, when he resides in a different place, by the post next succeeding the last day of grace.</p> <p>The notice must be directed to the post office nearest the residence of the indorser. Ireland v. Kip, 11 Johns. 232.</p> <p>And where there are two post offices in the same town, the letter containing the notice must be sent to the post office most convenient to the party, or where he usually resorts for his letters. 16 Johns. 218. Cuyler v. Nellis, 4 Wend. 399. In the present case, the letter was improperly directed, and the notice is insufficient. Bank of Utica v. De Mott, 13 Johns. 432.</p> <p>The objection to reading the bill in evidence, because it was not between the same parties, is not well founded. The word cashier, is a term known, and applied exclusively to banking corporations, hence the universal practice of indorsing to him in that capacity, has prevailed, when the paper is indorsed for the benefit of the bank. To hold that M. Clark is the party, would at once deviate from the intent of the contracting parties, and, in so doing, the court would “ drop the substance and catch at the shadow.”</p> <p>The custom of the bank is binding on those who contract with it. 10 Mass. R. 288. 12 do. 6.</p> <p>The holder may fill a blank indorsment, or alter it at pleasure. 10 Mass. R. 288.</p> <p>It would be absurd to drive the plaintiff to a new trial, only to make such alterations as his case might require in the indorsment, and which could in no wise benefit the defendant. A contract with a known agent is a contract with the principal. Arlington v. Hinds, 1 D. Chip. 431.</p> <p>On the question of notice, we insist that when the defendant holds indemnities, to secure him from loss or damage, as in the present case, he is not entitled to notice of non payment. 5 Mass. R. 170. 9 Mass. R. 332.</p> <p>But notice was given, with all the diligence which the circumstances of the case would admit.</p> <p>The case shows the reputed residence of the indorser to be in Rutland. He indorsed the bill payable in a foreign government, without designating any other place to which notice of non-payment should be forwarded.</p> <p>Among the variety of exceptions to the rule requiring notice to be sent to the nearest post office, we find many not so strong as this ; for instance, it is no want of diligence to suspend a notice until a notary can obtain information as to residence, and that by writing to a foreign country. 6 Peters, 172.</p> <p>It would be requiring more than due diligence, to compel the holder, or the protesting officer, to ascertain, at his own peril, the exact distance between two post offices in a foreign government, and the nearest to which the indorser resided.</p> <p>The law does not require excessive diligence. Reasonable 3 Kent’s Com. 106. 6 Peters’ R. diligence is sufficient. 172. 1 id. 578.</p> <p>In the state of New-York, the supposed inflexible rule has been relaxed by the legislature, and nothing further is now required than was done in this case. 3 Kent’s Com. 108. 2 do. 458. Statute of New-York, 1835, p. 152.</p> <p>Whatever the common law may be, the above statute must be conclusive in this case. The bill was drawn in the state- of New-York, payable in that state, and the lex loci must govern. 3 Kent’s Com. 458. Comyn on Cont. 407, 8.</p> <p>As to the question of sealing the protest, we have only to say, that, however agreeable it may be to the black letter lawyer to trace the history and use of public and private seals, in their progress through the different ages in which the common law has been maturing to its present condition, it is sufficient for the present purpose to show that this instrument was sealed in conformity to well settled principles. 6 Jacob’s L. Die. 36, 37. 2 Coke’s Inst. 234. 4 Kent’s Com. 452-3. 4 Vt. R. 471.</p>

<p>This was an appeal from a decree of the court of chancery, allowing the defendants to redeem certain lands.</p> <p>The orator, in his bill, set forth and charged, in substance, that, having occasion to borrow three hundred dollars, he applied to the defendant, Bates, who agreed to and did loan him that sum, and, to secure the said Bates therefor, the orator, on the second day of May, 1821, executed, in due form of law, a deed of warranty to said Bates of twenty-three acres of land, situate in Pownal, (describing it by metes and bounds,) which deed was absolute in its terms, and the consideration therein expressed was three hundred and twenty-five dollars; — that although said deed contained no condition of redemption, yet, it was executed by the orator and received by said Bates' as a mortgage to secure the repayment of $325.00 to said Bates ; that, at the time of executing said deed, it was agreed, by parol, between the orator and said Bates, that whenever the orator repaid said sum of money, the said Bates would reconvey the said land to the orator, and that it was further agreed between them, that the orator should remain in possession of the mortgaged premises, and pay therefor, to said Bates, twenty-five dollars annually, in lieu of interest on said money; — that ever since the execution of said deed, the orator had remained, and still was in possession of the premises, and had paid to said Bates, an-nua^^’ sa'd sum °f twenty-five dollars, in lieu of interest, until the premises were conveyed by said Bates to the other defendant, Niles, as hereinafter stated ; that, at the time when said deed was executed, it was further agreed between the orator and said Bates, that the latter should execute to the orator a writing agreeably to said parol agreement, and that the orator had frequently requested the said Bates so to do, but the said Bates declined executing it; that on the 30th of April, 1823, the orator proposed to said Bates that he should lease the said premises to the orator, whereupon an indenture was made between them, in and by which the said Bates leased said premises to the orator for the yearly rent of twenty-five dollars, for the term of three years, and the said Bates, in and by said indenture, agreed that if the orator should pay to him the sum of $325.00 at any time within three years from the date of said indenture, then he would re-deed said premises to the orator; that said indenture was afterwards, on the second day of June, 1823, recorded, according to law, but was defective in not being sealed by the parties and acknowledged by said Bates; that the orator’s object in procuring said lease or indenture was to obtain an acknowledgment, in writing, from said Bates, of said parol agreement; that he could not obtain a writing like the parol agreement, and objected to said indenture, at the time, because the time of redemption was therein limited to three years, when it should have been unlimited, but as he could get no other writing, and believing that the parol agreement was void, he consented to take the indenture as it was. And the orator further set forth that the value of the land so mortgaged was fifteen hundred dollars ; that, although the consideration of said deed was $325.00, yet, only three hundred dollars was loaned by said Bates to the orator; that the sum of twenty-five dollars was agreed to be paid as interest above six per cent. for the loan of said three hundred dollars. And he further set forth that, after the execution of said mortgage to said Bates, to wit on the 26th of June, 1834, the said Bates conveyed the land, so mortgaged by the orator, with other lands, to the defendant, Niles; that the said Niles commenced an action of ejectment against the orator, returnable at the June term of Bennington county court, 1836, at which term a judgment was rendered against the orator and he reviewed the cause, ■and said action was still pending in said county court. And the orator averred that he had tendered the amount due on said mortgage, to wit, on the 16th of August, 1836, and was still ready and willing to pay the amount due thereon, and charged that both defendants had full knowledge of the facts, at the time of the conveyance from Bates to Niles, and prayed that the defendant, Niles, might be decreed to re-convey to the orator the said mortgaged premises, on the payment of the sum due in equity on said mortgage, and that said action of ejectment be enjoined, and for further relief.</p> <p>The defendant, Bates, by his answer, admitted that the orator conveyed to him the land in question on the second day of May, 1821, by an absolute deed, but denied that said deed was given or received as a mortgage to secure the payment of $325.00, or that any parol agreement was made, at the time of the execution and delivery of said deed, that it should be considered as a mortgage, or otherwise than an absolute deed; and further denied that it was agreed that the orator should remain in possession and pay annually therefor twenty-five dollars in lieu of interest on the sum of $325.00, or as interest above six per cent, on $300 ; — but admitted that the orator remained in possession under a parol agreement, for one year, to pay therefor the sum of twenty-five dollars, and continued in possession, by permission of this defendant, until about the first of April, 1823, when, at the request of the orator, the lease set forth in the orator’s bill was made and executed, (setting forth the lease in hcec verba,) and he waived all objections by reason of any informality in the execution thereof; and he further denied that there was ever any agreement that he should execute a writing to the orator, agreeably to any parol agreement, as stated in the orator’s bill. He also admitted that the orator had possessed the premises under said lease, and had paid a part of the rent, but how much he could not recollect, and that this defendant conveyed the land in question, with other lands, to the defendant, Niles, on or about, the 26th of August, 1834, and further admitted that the orator, on the 15th of August, 1836, or thereabouts, offered to pay this defendant a sum of money, but how much he did not recollect; and further stated ^at was a stranger to all and singular the other matters and things in the orator’s bill contained, and submitted the same to such proofs as the orator could make, and to the or-anc[ ¿¡ecree which the court might make thereon.</p> <p>This answer was traversed.</p> <p>The defendant, Niles, by his answer, admitted that the defendant, Bates, conveyed to him, on the 26th of March, 1834, the land in question, with other lands ; that he (Niles) commenced his action of ejectment against the orator for the recovery of said premises, as stated in the orator’s bill; that the orator, a short time previous to the conveyance from Bates to this defendant, informed this defendant that Bates was under obligation to convey said premises to the orator on the payment of a certain sum, but the precise sum he could not recollect; and he stated that Bates denied that he was under any obligation to convey the premises to the orator, and informed this defendant that they were free from all claims and incumbrances either in law or equity. And this defendant, further stated that he examined the records of deeds in Pownal previous to purchasing of Bates, for the purpose of ascertaining Bates’ title to the premises, and found said deed from the orator to Bates to be unconditional, and relying upon the said Bates’ statements and said records, he purchased of said Bates the lands specified in Bates’ deed to him, and paid therefor the whole purchase money (being $7,250) except nine hundred dollars, for which he gave his note, and on which said Bates had commenced a suit, which was still pending. And this defendant further stated that he was a stranger to all and singular the other matters and things in the orator’s bill set forth, and was unable to make answer thereto, and submitted to such proofs as the orator could make thereof, and to such order and decree as the court might make thereon.</p> <p>This answer was not traversed.</p> <p>Testimony was taken'relating to the matters in issue, from which it appeared that the land conveyed by the orator to Bates, was worth) at the time of the conveyance, one thousand dollars or thereabouts ; that the orator tendered the sum of $325.00 to the defendant, Bates, as stated in the orator’s bill, and requested a deed of the land, which Bates re-rased to give.</p> <p>Sylvanus Danforth, one of the witnesses examined, testified that in the spring of 1821, he went with the orator to the defendant, Bates, to assist the orator in borrowing $300; that Bates agreed to let the orator have that sum, if the orator would secure him by deeding to him the twenty-three acres of land described in the orator’s bill, and give twenty five dollars a year for the use of the money, which the orator agreed to do, but the writings were not made at that time, but soon afterwards the witness understood, from both parties, that the writings were executed and their agreement carried into effect.</p> <p>Samuel Wright, another witness, testified that in April, 1823, he was employed by one of the parties, (which he could not recollect,) to draw a lease of the land in question from the defendant, Bates, to the orator ; that, at that time, Bates said he had let the orator have $325, at Benning-ton ; that, at the time of lénding him the money, he took a deed from the orator, of the land described in the orator’s bill, and promised to give Mm a time to redeem it in; that, during the conversation, he said there was no time fixed for redemption, but he wanted a time fixed in the lease, and limited the time to three years; that the orator insisted upon five years, but Bates would not extend the time beyond three years, saying that the orator had then had the money two years. In answer to the interrogatories of the defendants, the witness admitted that the plaintiff was his brother and that Bates and the witness had been for several years in litigation and difficulty.</p> <p>It appeared that both defendants settled the interrogatories to the witnesses, and both attended before the master at the taking of the testimony.</p> <p>I. The first question which arises in this case is, whether the deed and agreement between the orator and defendant, Bates, is in equity a mortgage or conditional sale ?</p> <p>Independently of any evidence as to the intention of the parties, besides what is furnished by the deed and agreement, it is apparent that a mortgage was intended. 1 Mad. Ch. 516. 2 Vern. 84. 4 Mass. 443. 8 Id. 159. 15 Johns. 205.</p> <p>The agreement between the orator and the defendant,Bates, though executed subsequently to the deed, operates as a de-feasancej and W¡H have relation back to the date of the deed. 4 Kent’s Com. 140.</p> <p>But if it be doubtful whether a mortgage or conditional sale was intended, courts of equity always incline to treat the transaction as a mortgage, as more benign in its operation. 1 Dev. Eq. Ca, 373. 4 Kent’s Com. 144, and note. 7 Cranch, 237. And parol evidence is admissible to show the intention of the parties, by the proof of extrinsic circumstances, whether the defeasance was by an agreement in writing or resting in parol. 2 Atk. 98, 3 Id. 388. 2 Cow-en, 324. 7 Cranch, 482. In other cases of written contracts the same rule obtains. 5 Wheat. 326. Ely v. Adams, 19 Johns. 313. Phillips’ Ev. 443, 444.</p> <p>Whenever a deed is shown to have been given as a security for the loan of money on a pre-existing debt, it is a mortgage. 6 Yt. R. 448. 9 lb. 276. 9 Wheat. 489. Hughes v. Edwards, 2 Cowen, 324. Hanks v. Henry, 6J. C. R. 417.</p> <p>Besides, the orator has been in possession of the premises ever since the conveyance to Bates, and the inadequacy between the consideration of the deed and the value of the land would alone furnish evidence that a mortgage was intended. 7 Cranch, 482. 2 Cowen, 324.</p> <p>II. Is the defendant, Niles, a bona fide purchaser for a valuable consideration, without notice of the orator’s equitable right to redeem ?</p> <p>To entitle him to this character he must not only have been ignorant of the orator’s equitable right to redeem, at the time of the execution of the deed from Bates to him, but also at the time of the payment of the purchase money. To sustain a plea of purchaser, for a valuable consideration, it should be averred that the deed was executed and the purchase money paid before notice, or the plea would be held insufficient. Story v. Ld. Windsor, 2 Atk. 630. 8 Wheat. 481. 5 U. S. Cond. R. 485. Fonb. Eq. 444, and note.</p> <p>That the orator gave notice to this defendant of his right of redemption, before the execution of the deed and payment of the purchase money, is admitted in his answer ; and besides, the orator was in possession at the time, and the bill was served upon this defendant before he paid the purchase money. 2 Vt. R. 644. 8 Wheat. 481.</p> <p>The object of recording a deed or mortgage is to give notice to subsequent purchasers; and when actual notice is proved, it supersedes a registry. 3 Atk. 646. 15 Johns. R. 568. 4 Kent’s Com. 172.</p> <p>This case is to be decided upon the effect of the deed in connection with the contract, as stated in the lease, for whatever might have been the contract betwen Bates and Wright, at the time of executing the deed, as the parties two years afterwards made a new contract, in writing, distinctly specifying the terms and conditions upon which that deed was to be held, and as it is not pretended in the bill but that this writing contains the whole contract, as made, and was executed without fraud or surprise, this agreement furnishes the only evidence the court will receive in deciding upon the respective rights of these parties. Pattison v. Hall, 9 Cowen’s R. 747. Woolam v. Hearn, 7 Vesey, Jr. 211. Clinan v. Cooke. 1 Sch. & Lef. 39. Greely’s Equity Ev. 206.</p> <p>Under the contract, as stated in the lease, the deed to Bates cannot be considered a mortgage; for in no sense does the relation of debtor and creditor exist between them. No covenant nor express contract was made for the re-payment of the money at the time of the execution of the deed, or the lease. The lease leaves the re-payment of the money entirely optional with Wright, and where the relation of debt- or and creditor does not exist, the authorities all agree that the deed cannot be considered a mortgage. Reading v. Weston, 7 Conn. Rep. 144. 2 Edw. Ch. R. 143. Godman v. Grinson. 2 Ball & B. 275.</p> <p>The only effect that can be given to the deed, under the contract in the lease, is to consider it as a conditional contract of sale. 7 Conn. R. 144. 2 Edw. Ch. R. 140, 146. 2. Cond. R. 480. 1. Russ. & Milnor, 506. 12 Mass. R. 463.</p> <p>If this is not a mortgage, there is no other redeemable interest on which this bill can be sustained, as the court will not relieve on the ground of a forfeiture of an estate or from the lapse of time. 2 Edw. Ch. R. 147. 1 Russ. & Milnor, -nn 506.</p> <p>The parties evidently intended not to make a mortgage, but simply a contract for purchase. This intention is further proved by the fact that no promise was made for the re-payment of the money. 2 Cond. R. 481. ;</p> <p>But if this bill is to be sustained, the title of Niles ought not to be defeated, as he stands in the light of a subsequent purchaser without notice. The claim of Wright, as stated in the answer of Niles, was denied by Bates. The exercise of that diligence, required to be used on such claim being made, gave confirmation to the title of Bates, and of his right to convey. The fact that Wright was in possession of the land as tenant under Bates and paying rent, eo nomine, is one that shows that Bates had a right to convey.</p> <p>Notice, sufficient to put a party on inquiry, is sufficient to give precedence to an unrecorded deed, but not sufficient as against a recorded deed, for, by such means we cannot “ break in upon the registry act,” or defeat a title founded upon the records. Actual fraud, in such cases, must be clearly established, and this is not stated in the bill nor attempted to be proved by testimony. 2 Johns. Ch. R. 182. 8 Cowen, 260. 2 Atk. 276. 3 Yesey, 478.</p> <p>Aside from the question of notice, the answer of Niles, not having been traversed, there is no testimony in the case, as against him, to show the deed of Wright a mortgage. And he has had no opportunity to cross-examine the witnesses, or to introduce any on his part.</p>

<p>A mere naked agreement between the creditor and the principal debtor not to sue, will not release the surety. If the creditor put it out of his power to sue, by any contract with the principal debtor, made without the knowledge of the surety, the surety is thereby released.</p> <p>Payments made by one of two or more joint contractors, will operate to take the case out of the operation of the statute of limitations, as to the other contractors.</p>

<p>It is the duty of the listers, under the twelfth section of the act of 1825, to make a list of all property by them appraised, or assessed at a given rate, with all other assessments by them made, and lodg-e the same with the town clerk, by the 20th June, in each year; and it was held that this duty extended to the cases of assessments as two-folds, as well as others.</p> <p>The listers of a town are liable, in an action on the case, for a neglect of duty, whereby a person is improperly assessed, and compelled to pay taxes in consequence of such assessment.</p>

Tilts was an appeal from the decision of commissioners, appointed by the probate court to receive, examine and adjust all claims and demands against the estate of Samuel Arnold, deceased, of which estate David Arnold and Nancy Arnold were administrators. The plaintiff declared in an action of book account against said estate.

Assumpsit, in two counts. The first count was in common form for money paid, laid out and expended.

Scire Facias, by the plaintiff as a creditor of one Daniel T. Aldrich, a non compos, or an insane person, setting forth additional breaches of the condition of a probate bond given by the defendant, Williams, as guardian of said Daniel T. Al-drich, and by the defendant, Clark, as surety, upon which bond a suit had been previously brought by Josiah Taft, a subsequent guardian of said Daniel T., in the name of the probate court, and judgment rendered against the defendants for…

<p> (Practice.) </p> <p>Where judgment is for the plaintiff, in an action of tort, it is necessary, to prevent the debtor from taking the benefit of the poor debtor’s oath, that the court, at the time of rendering the judgment, should adjudge that the cause of action arose from the wilful act or neglect of the defendant, and that a minute of such adjudication he inserted in or certified upon such execution.</p> <p>Where the certificate was ‘ that the cause of action arose from the wilful and malicious act of the defendant; ’ It was held, that such certificate was erroneous, and it was ordered to be vacated.</p>

<p>A deed, though not acknowledged until after the'commencement of a suit, may, after such acknowledgment, be read in evidence.</p> <p>An action on a covenant of warranty may be maintained where the grantee had brought an action to recover possession and failed for want of title in his grantor.</p> <p>The record of the judgment, in such action of ejectment, is conclusive evidence of a breach of the covenant, if the grantor was duly notified of the suit, and is prima facie evidence of such breach, if the record shows that the recovery was not for the fault of the grantee. But, in the latter case, the grantor is not precluded from showing a title in himself at the time of making the warranty.</p> <p>The rule of damages, on the covenant of warranty, is not only the value of the land, but the legal cost and necessary expenses of such action of ejectment.</p>

Trespass on the case for flowing the plaintiff’s land. Held: or otherwise. Should the plaintiff obtain a verdict on this declaration, and the testimony offered, who can evér tell why, or on what evidence, damages were assessed ? VI.

Trespass on the case, against the defendant, as sheriff of Windsor county, for the negleet of his deputy in not executing a writ of execution.

This was an indictment,, as follows, for shutting a turnpike gate which had been set open by turnpike inspectors. ‘State oe Vermont, Windsor county, ss. ‘ Be it remembered, that at the session of the county court ‘begun and holden at Woodstock, within and for the said ‘ county of Windsor, on the last Tuesday of May, A. D. ‘ 1840,— ‘ The Grand Jurors within and for the body of said coun- ‘ ty, now here in court, duly empannelled and sworn, upon ‘ their oath present, that at…

Trespass, for taking and carrying away a quantity of corn. Plea, not guilty, and trial by jury. On the trial in the county court, the plaintiff, who was deputy sheriff, proved that he attached the corn in question, by virtue of two writs, against Elisha Clark, as said Clark’s property, on which writs judgments were afterwards rendered against said Clark.

<p>Trustee Process, against Henry Whitcomb, as trustee of William Davis.</p> <p>At the November term of the county court, 1839, the said Henry Whitcomb disclosed as follows :—</p> <p>‘ That on the 27th day of March, 1839, said Henry pur- ‘ chased of said Davis a piece of land lying in Springfield, for ‘ which he was to pay said Davis fifty dollars, subject to the c condition specified in a note or obligation which he, on the ‘ same day, executed to said Davis for said land; which land, ‘ at the time of said purchase, was subject to the incumbrance ‘ of a mortgage deed, executed by said Davis to Selden Cook, c and bearing date the 30th day of October, A. D. 1838, on £ which mortgage there was due about $150 when said Hen-1 ry made the purchase aforesaid. Said note or obligation is ‘ in the words and figures following, to wit:</p> <p>“ $50. Springfield, March 27, 1839.</p> <p>“ For value received, t promise to pay William Davis, or “ order, fifty dollars, with interest, — payable when said Da- “ vis, his heirs or assigns, shall clear oif all the now existing “ incumbrances on a small piece of land the said Davis has “ this day conveyed by quitclaim deed to me, the considera- “ tion hereof being said conveyance, with the express con- “ tract that the same be cleared of all incumbrances as afore- “ said. Henry Whitcomb.”</p> <p>{On the first day of October, 1839, the trustee process ‘ in this suit was duly served on the said Henry.</p> <p>‘ Since the service of said writ, and, as near as said Henry ‘ recollects, about one fortnight afterwards, he was notified, ‘ and for the first time, by one Solomon Clement, that the said ‘ note or obligation had been assigned to him, and that he 1 was the owner thereof; that said note had been shown to ‘ said Henry by said Clement, and has on the back thereof ‘ the following indorsement, to wit, — “ Pay the within note “ to Solomon Clement, it being for value received.</p> <p>William Davis.”</p> <p>‘ On the 11th day of November, 1839, said Cook, by his ‘ deed of assignment of that date, assigned and made over to ‘ Russell Burke, the plaintiff, the said mortgage deed and his £ interest therein, together with the note on which the same £ was,, predicated. All the incumbrances upon the land pur- £ chased by said Henry have been removed, except the deed £ of mortgage aforesaid, which remains undischarged and in £ force. But said Burke, the present owner thereof, has of-c fered to said Henry, and says he is now ready to remove £ said incumbrance from the land. No part of said note or £ obligation, given by said Henry as aforesaid, has Been paid.’</p> <p>This disclosure having been sworn to and filed, the cause was continued, from term to term, to the November term of the county court, 1840, at which term the plaintiff showed that he had delivered to the said Henry a deed discharging all incumbrances on the land mentioned in the disclosure. Whereupon the county court decided that the said Henry was not trustee, to which decision the plaintiff excepted.</p> <p>The real parties in interest in this question are the plaintiff and Solomon Clement, the assignee of the chose in action, mentioned,in the disclosure. And the question is, shall the plaintiff, by his trustee process, hold the demand, rather than Clement, by his assignment.</p> <p>Whitcomb has no other interest than to be protected by the judgment.</p> <p>The trustee process was served on Whitcomb a fortnight before the assignment to Clement.</p> <p>The demand was not negotiable, and therefore not protected as negotiable paper.</p> <p>It was a mere chose in action or agreement. Chitty on Bills, 155, 156.</p> <p>It was apresent debt, though payable on a future event,that is, when the incumbrance on the land for which the note was given should be removed. The disclosure admits that the plaintiff, who was the owner of the’mortgage, had offered to remove the incumbrance.</p> <p>The indebtedness of Whitcomb was in the words of the then statute, which must govern, either money, rights or credits.</p> <p>The plaintiff did remove the incumbrance, and hence is entitled to the avails of Whitcomb’s indebtedness to Davis, by this process.</p> <p>1. The plaintiff attached no interest by the trustee process; for, to charge a person as trustee, he must have in his hands either money or debts due the principal debtor at the time of the service of the writ. See the statute, and 2 Vt. R. 277. 9 Vt. R. 295. Chitty on Bills, 41, 48.</p> <p>The note in question was payable on the happening of an event entirely uncertain in itself.</p> <p>2. No right accrued to the plaintiff, as the note was indorsed before it was due. 4 Dallas, 47. Swift’s Digest, 738. 2 Mass. R. 32. 5 Day’s R. 638. 11 Vt. R. 309. Id. 482.</p> <p>3. Courts are bound to protect the interest of assignees, whether the paper assigned is negotiable or not. 1 U. S. Cond. R. 416. 4 Id. 619.</p>

This was an action on th,e case for the insufficiency of a highway, whereby the plaintiff was injured in the loss of his horse. Plea, not guilty, and trial by jury.

<p>A party cannot except to a judgment which awards him a greater sum than he claims, on the ground that he is credited for a sum of money which should go to the credit of another person or firm.</p> <p>The judgment in one case is not evidence in the other. Therefore a person, who is interested in another suit in a question involved here,'is not, on that account, necessarily incompetent to testify in this case.</p> <p>In actions of book account, which come into this court upon exceptions reserved in the county court by one party, and which are overruled here, this court cannot re-examine questions which were decided against the other party,and to which decisions no exceptions were taken and reserved.</p> <p>When the exceptions taken and reserved are in this court sustained, and the judgment of the county court reversed, the whole case is then before this court, to render such judgment as the county court should have rendered.</p> <p>In contracts for interest, generally, interest upon interest will not be allowed.</p>

This was an action of book account wherein judgment to account was rendered in the county court, and auditors were appointed, who afterwards made their report, from which it appeared that the plaintiffs ’ account, as charged, amounted to $3§9.67, but, as adjusted and allowed by the auditors, was reduced to $138,47, and they computed the interest thereon at $49,01.

This was an action of book account, in which judgment to account was rendered in the county court, and auditors were appointed, who reported, among other things, in substance, that the plaintiff and Edward Manning were formerly partners under the firm of Cummings & Manning, and, in 1837, they assigned to Daniel Perry all the partnership effects, and also all their separate property, in trust, for the payment of the creditors of the firm and their individual creditors.

This case was submitted to the decision of the county court on the following statement of facts, agreed upon by the parties, to wit- Adeline Dustin is the wife of Moses Dustin. Moses Dustin has no settlement in this state. Adeline Dustin’s settlement, at the time of her marriage with Moses Dustin, was in Tunbridge. On the 20th day of June, 1839, Moses Dustin and his family resided in said Bethel and had resided there for some time previously thereto.

This was an action of indebitatus assumpsit on the common counts only, for money, and was tried on the general issue. On the trial in the county court, the plaintiffs gave in evidence a note, made directly to themselves, as to which no question was made. They also gave in evidence a note drawn'by the defendants, in favor of Porter, Denny & Co., payable to them or their order, and by the latter indorsed to the plaintiffs, and rested their case.

Assumpsit, against the defendant and George Throop, late partners under the firm of Baxter & Throop, in four counts. The first count was upon a promissory note, dated June 16, 1838, for $ 187.64, payable on demand and interest. The other counts were for money had and received, money paid, laid out and expended, and goods sold and delivered. Plea, non assumpsit, and issue to the country.

This was an appeal from a decree of 'the court of chancery, annulling a ceremony of marriage between the oratrix and the defendant. The bill was filed by Jeremiah Clark and Mary Almira Clark, formerly Mary Almira Phelps. The said Jeremiah having died after the filing of the bill, the suit proceeded in the name of the said Mary Almira, as survivor.

This was an appeal from the decision of the court of chancery, dismissing the orator’s bill. The orator, in his bill, among other things,’ alleged, that in the year A. D. 1829, there was an action pending in the county court within and for the county of Windsor, in favor of the orator and Eleazer Davis, ofHartford, in said county, of the latter of whom Wm.

Assumpsit, by the plaintiff, as indorsee of a promissory note, dated July 28, 1840, for sixty dollars, given by the defendants to Levi Bixby, or bearer, for value received, payable on demand. Plea, non assumpsit, and trial by the court. On the trial in the county court, it appeared that two days after the date of the note, Bixby, for a full and valuable consideration, transferred and indorsed the note to Eleazer Parker, of Woodstock, for whose benefit this suit is prosecuted.

This was a cause, which came into the county court by appeal from a justice of the peace. There was a verdict in the county court for the plaintiff, and the defendant moved in arrest of judgment for the insufficiency of the declaration.

This was an appeal, taken by the orator, from a decree of the court of chancery, upon a bill to foreclose a mortgage given by the defendant, Smith, to the orator, to secure the payment of two promissory notes.

This was an appeal from an order of removal of Joseph Harriman, a pauper, from the town of Corinth to the town of Newbury. Held: by this court, that the settlement of paupers is entirely a creature of the statute. It is an arbitrary regulation ; a liability imposed by statute, and it would seem, in analogy to -other cases, that when the statute is repealed which imposes the liability, the liability as well as the statute is gone.

This was an action of book account, commenced before a justice of the peace, wherein a plea in abatement was pleaded, which was overruled by the justice and the defendant appealed to the county court. The plea in abatement was, in substance, that the justice, who signed the plaintiff’s writ, was not present with the writ at the place therein appointed for trial, within two hours after the time therein set for trial. The plea was traversed, and issue was joined to the court.

Trover for fifty-six sheep and one horse. Plea, not guilty, with notice that the defendants took the property as belonging to James H. Brackett, on a writ of attachment against him. Issue was joined to the country.

Assumpsit, on a promissory note. The declaration was in common form. Plea non assumpsit and issue to the country. On the trial in the county court, the plaintiffs stated that the note declared upon had been lost since the commencement of the suit, and to prove this fact he introduced the following testimony.

This was an action of account, wherein the plaintiff alleged, in substance, that he and the defendant, on the twenty-third of November, 1827, were executors of the last will and testament of Elias Curtis, late of Tunbridge, deceased, having proved said will in the probate court for the district of Randolph, and received from said court letters testamentary in due form of law ; that as such executors they possessed themselves of the real and personal estate of said testator,…

This was an action of book account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported, that the plaintiff resided at Wells River village, near the north line of Orange county, and was a deputy sherriff, and the defendant was the toll gatherer at Wells River bridge, distant half a mile from the village; that the defendant had instructions from the directors of the bridge company to take no bills except of banks in the vicinity,…

Assumpsit, in two counts. The first count was as follows ; viz.— ‘ For that the said defendants, at said Randolph, on the c 16th day of January, 1839, having then and for a long c time previously, been partners in trade, under -the firm of e Jonah Washburn &- Company, and being then indebted to ‘ the plaintiff in the sum of two hundred and twenty-one ‘ dollars and forty-six cents, on settlement of various deal- ‘ ings between the plaintiff and defendants, did, by their £…

Assumpsit, for money had and received. Plea, non as-sumpsit, and issue to the court.

This was a declaration for betterments, under the statute, filed in this court after a recovery was had in favor of Willard against Beckley, in an action of ejectment for the seizin and possession of a parcel of land lying in-Barre, in which action final judgment was rendered in this court at the July term, 1839. The defendant, Willard, to this declaration, pleaded non assumpsit, and three special pleas in bar.

This was an action of assumpsit in favor of Luther Cross and Ira Day, late partners under the firm of Luther Cross & Co. The defendant filed in offset a declaration on book, and the questions presented for the decision of this court arose from the proceedings upon the declaration in offset.

Trustee Process, against Osgood Evans as trustee of Amasa Lyman, principal debtor. This suit was commenced at the November term of the county court, 1839.

Trespass on the case against the defendant for alienating and embezzling the following goods of the plaintiff’s intestate, prior to the granting of letters of administration to the plaintiff by the probate court, viz: — one barrel of pork, one barrel of bacon, one barrel of New England rum, four hundred pounds of cod fish, half a barrel of pickled herrings, one gig harness, one sleigh harness, one rifle gun, two bags of shot, and two kegs of nails.

Debt, upon a jail bond, executed by the defendant, as surety, and William Mann, now of Sherbrook, Canada, as principal, on the 23d day of June, 1838, to'Geo. A. Allen, sheriff of Chittenden county, and by said Allen assigned to the plaintiffs, which bond was given on the commitment of said Mann to the common jail in Chittenden county, by virtue of an execution in favor of the plaintiffs against him.

Ejectment, to recover the seizin and possession of certain lands in Marshfield. Plea, not guilty, and trial by jury. On the trial below, the plaintiff proved that the title of the premises was in the plaintiff’s intestate prior to the twenty-ninth day of December, 1830, and that the defendant, Austin, was in possession, as the tenant of Hollister, the other defendant, at the commencement of this suit.

Trespass, for taking and carrying away five hundred cedar posts. Plea, not guilty, with notice of special matter, and further notice that the posts were taken and sold as the property of Amasa Huntington on an execution in favor of Joseph A. Wing, and also as the property of James Pittsley on an execution in favor of Lawrence & Lamb. Issue to the country. Verdict and judgment in the county court for the plaintiff.

This was an indictment, founded upon the statute of 1827, entitled, “An act to provide for the support of schools,” for the neglect of the selectmen of the town of Northfield to assess the three cent tax required by said act.

This was an indictment for stealing two sheep. Plea, not guilty, and trial by jury. The testimony given tended to show that the sheep, with a flock, were running in a pasture of one Joel Cilley. Held: that, being taken with a felonious intent, and under the control of the respondents, it was larceny. So in the case at bar, the sheep were taken by the respondent in the pasture and carried into the thicket for concealment, and were entirely under his control.

This was an action of book account. In the county court, judgment to account having been rendered, an auditor was appointed who reported as follows ;— ‘The last item in the plaintiff’s account was charged in ‘ the usual course of business, on the 14th day of March A. 4 D. 1831, since which time there have been no articles deliv- ‘ ered, payments made, nor charges on book by either plain- ‘ tiffs, or defendant.

This was a writ of error to reverse a judgment rendered in favor of the defendant in error against the plaintiff in error, by the county court, in an action of book account, in which action the auditor, appointed to audit the accounts of the parties, reported the following facts, among others» viz :— The plaintiff below presented an account consisting of the following items. Oct. 1838.

TREsPAss on ~h.e case against the defendant, as sheriff of Caledonia county, for the neglect of one of his deputies in making a defective levy of an execution, in favor of the plaintiff against one Sinclair, upon laud of the said Sinc1aii~, which levy was made on the nineteenth day of March, 1836, and the defect complained of was, that the return of the deputy did not show that th~ justice of the peace, who appointed the appraisers, could, by law, judge between the parties.

This was an action of assumpsit against the defendant and one Pierce, in which the plaintiff alleged, in substance, that the defendants, being the owners of a writ of execution in their favor against Nathaniel Boynton, on the first day of November, 1834, delivered said writ to Elihu Underwood, constable of Danville, to collect, and directed said Underwood to levy the execution on a quantity of hay then in a barn occupied by Samuel W. Boynton in said Danville; that in…

This was an action of book account, in which judgment to account was rendered in the county court, and an auditor appointed, who reported that, on the hearing, it appeared that there were charges in the defendant’s account for liquors sold the plaintiff by small measure ; that the defendant was a tavern keeper, duly licensed, and the plaintiff objected to the allowance of more than $ 1.50 of said charges; that, from the course of dealings between the parties, it was the…

Action of book account, commenced before a justice of the peace and appealed to the county court, in which action the defendants were attached to answer to the plaintiff, in ‘ an action on book, demanding one hundred dollars to ba- £ anee accounts between them, to the damage of the plaintiff ‘ the sum of one hundred dollars.’ The defendants consented to a judgment to account,in the county court, and an auditor was appointed, who made a special report, and found a balance due…

Debt, on a recognizance entered info by the defendant, before one of the judges of the county court, on granting an audita querela in favor of Stevens and others against Beech, the present plaintiff, in which action Beech recovered a judgment for his costs. The defendant pleaded nul tiel record, and a special plea in bar, that the record of the recognizance was made by the judge who signed it without the knowledge or consent of the defendant.

Ejectment, to recover the seizin and possession of lot No. 32, in Wenlock. On the trial in the connty court, the plaintiff read in evidence the charter of Wenlock, dated in 1761, which showed that Stephen Upson, jr., was one of the original grantees, and it was admitted that the lot in question had been set to the right of said Upson.

This was an appeal from a decision of the commissioners appointed to examine and' adjust all claims against the estate of Alzo Rich, deceased, allowing a claim in favor of the plaintiff. Joshua Marshall and Jacob Rich are administrators of said estate.

<p>Trespass, for breaking and entering plaintiff’s close, being lot No. 33, in Wenlock, in the county of Essex, laid to the right of Samuel Averill, one of the original proprietors.</p> <p>Plea, not guilty, and trial by jury,</p> <p>On the trial in the county court, the plaintiff proposed to show a title in himself to the lot in question, under a deed from William Hughes, sheriff and collector, to James White-law, and intermediate conveyances from said Whitelaw to the plaintiff; and, for this purpose, gave in evidence an act of the legislature, passed at their session in 1807, granting a tax on the lands in the county of Essex, and offered in evidence the record of the proceedings under said act, showing a sale of the lot in .question, which were objected to by the defendants; but the objections were overruled. The proceedings of Hughes, in selling the land, are here omitted, as the case was decided upon another point.</p> <p>The plaintiff then offered a deed from said Hughes,, sheriff and collector, to James Whitelaw/ dated March 21,1809, °f lhe lot in question. It was objected that said Whitelaw was one ^e two Persons wh° witnessed said deed, and, from the testimony introduced on that point, the county cour). youn¿ that Whitelaw, the grantee, was one of the persons who witnessed said deed, and therefore the deed was rejected.</p> <p>The plaintiff then undertook to show a title to the lot, under a deed from David Hibbard, jr., sheriff and collector, to James Whitelaw and through intermediate grantees, to the plaintiff, and for this purpose read in evidence an act of the legislature, passed at their session in 1812, granting a general land tax of one cent per acre for the support of government. He also offered in evidence the proceedings under said act, as contained in a book of records produced from the county clerk’s office in the county of Essex. This evidence was objected to, because the record of these proceedings was not attested by said Hibbard, as copies of his doings, and because the record was not attested nor signed by the county clerk. The plaintiff offered to prove, by parol, that the sheriff’s warrant for the collection of the tax, — his advertisements, and other proceedings, were lodged, by the sheriff, for record, in the county clerk’s office, within thirty days after completing his sales; that said papers and proceedings were duly recorded by persons in said office, acting under the authority and direction of said clerk, and that said clerk failed to sign said record by reason of his absence when the record was completed and his subsequent death, while absent. This testimony was objected to by the defendants, but was admitted by the court.</p> <p>The plaintiff then called said Hibbard, who testified that he received his warrant from the treasurer, about the fifth day of December, 1812, and subsequently proceeded according to the record in question ; that, within thirty days after completing his sales, he lodged his warrant, the newspapers containing his advertisements, and his original book of sales and proceedings, in the county clerk’s office, for record ; that, at the same time, he paid to Haines French, the then county clerk, the sum of forty dollars, for recording said papers and proceedings; that said French then received said papers and proceedings, and endorsed on the cover or envelope thereof the words “Rec’d for record, April 29, 1813 that Joseph Berry was then deputy jailer, and acted in the business of said French as county clerk, and said French then informed the witness that he had employed said Berry to perform the labor of recording said papers ; that said record is mostly in the hand writing of Berry, though some portion of it was in a different hand writing, which he understood to be that of one of the prisoners then confined in jail; that soon after said proceedings were so lodged for record, said French went into the service of the United States, and subsequently died in said service, without ever having returned home; that a few months after leaving the papers to be recorded, the witness called to take them, if they were recorded, and, being informed that they had been recorded, he received them at the jail. The witness then produced the original warrant and book of proceedings. Upon this testimony, which was uncontradicted, the county court overruled the objections to the record or copy offered by the plaintiff, and it was admitted in evidence. As the only question decided, in this court, related to the admissibility of said record or copy,-as evidence, it becomes unnecessary to state the objections made by the defendants to the validity of the sheriff’s proceedings in selling the land, or the deeds from the grantees of White-law to the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and the defendants excepted to the decisions of the county court.</p> <p>This case was argued at the last term of this court by S. Cushman for defendants, and O. P. Chandler for plaintiff, but no opinion was then pronounced. At the present term,</p>

This was an action, charging Jason Currier as trustee of John Currier, commenced under the trustee act of 1797. The trustee disclosed that he had no effects of the principal debtor in his hands, and that he was not indebted to him. The particulars of the disclosure sufficiently appear from the facts herein after stated and the opinion of the court.

Assumpsit, on two promissory notes, dated 12th March, 1834, payable to Wm. McGregor or order, and indorsed to plaintiff for collection, said notes signed by defendant, Ethan H. Nichols and Miron S. Kimball, for one hundred dollars each. Trial by jury.

Ejectment, to recover the seizin and possession of lot No. 68, in Charleston. Plea, not guilty, and issue to the country. On the trial in the county court, the plaintiff, to show title in his grantor to the land in question, offered in evidence certified copies of the last wills and testaments of Christopher Olney and Sally Ann Olney.

This was an action of covenant, brought to recover damages for a breach of a covenant of warranty, contained in a deed from John McDaniel, the defendant’s intestate, to Asa Aldis and Daniel Owen,… Held: prima facie, a sufficient breach of the covenants to enable the covenantee to recover. Park v. Bates, 12 Vt. R. 381. 1. But this case shows a decision, both against the title of the covenantor, and in favor of the person in possession of one lot, claiming the whole right. 2.

This was an action for money had and received, commenced before a justice of the peace.

Information, for horse stealing, filed by the state's attorney against the respondent, in-the words and figures following £ State of Vermont, Lamoille County, ss.

This was trespass, for breaking and entering the plain-» tiff’s close, being a certain farm in Johnson. The defendants pleaded not guilty, separately. Trial by jury.

The orator, in his bill, stated, in substance, that Daniel Clark was indebted to the orator and became a co-partner in trade with the defendant, and put in capital and made profits; that he died; that the defendant used and occupied the land which said Daniel bought of the orator; that he mingled said partnership property with his own, and collected its debts to his own use, and kept no account thereof; that he had promised to account for and allow the orator his debt…