Volume 14 — Vermont Reports

<p>A guaranty that a note, payable at a future day, “ is due and that the maker has nothing to file against it,” is to be considered as referring to the time when the note arrives at maturity.</p> <p>The statute of limitations does not commence running on such guaranty until the note becomes due.</p>

<p>The certificate of the clerk of the proper office, upon a deed, that the same has been duly recorded, is sufficient to entitle it to be used as evidence, and the effect of the evidence is not defeated by producing a copy of such record, duly certified, showing that the clerk did not correctly record the deed, especially where such error does not affect the interest of the person against whom the evidence is offered.</p> <p>Where one person, in terms, leases a portion of an entire farm, the rent to be paid in a specified proportion of the product of the whole farm, the remaining portion being the property of the lessee, and the lessee expressly stipulating to deliver such rent at a time and place named, he must sever that portion of the products which constitutes the rent, from the mass, or he will be liable upon his contract for the entire sum.</p> <p>After verdict and motion in arrest of judgment, equivocal terms will be understood in that sense which is most favorable to sustaining the verdict, if equally consistent with the contract and circumstances of the case.</p>

<p>A plea in bar which sets up a parol agreement, made at the same time when a note, absolute upon its face, was given, that it should only be payable upon a contingency, is insvffitient to bar an action on the note.</p> <p>.A plea in bar which denies the original cause of action, as a want of consideration, amounts to the general issue, and is ill on special demurrer.</p>

Ejectment for fifty acres of land in Hinesburgh. Plea not guilty, and issue to the country.

Assumpsit, against the defendants as indorsers of two promissory notes, one dated January 9, 1834, the other dated April 14, 1834, given by Horatio Gates & Co. of Montreal, L. C. to the defendants, each payable four months after date at the Mechanics & Farmers Bank, in Albany, N. Y. Plea, non-assumpsit. Issue to the court.

Trespass on the case against the defendant, as constable of Jericho, for not taking bail on a writ of attachment in favor of the plaintiff, who was a deputy sheriff within and for the county of Chittenden, against Lewis Rood and Orlin Rood, on a receipt for property attached by the plaintiff, as deputy sheriff, by virtue of a writ of attachment in favor of the Bank of Burlington against William Carley and others, and for falsely returning that he had taken good and…

Scire Facias on a recognizance, entered into by the defendant- upon the granting of an appeal from a judgment rendered by a justice of the peace, in favor of the plaintiff against one Harvey Talcott, to the county court, held at Burlington, within and for the county of Chittenden.

This was an action of trover for two wagons and one horse. Plea, general issue, and trial by jury.

This was an action on the case against the defendant, as sheriff of the county of Franklin, for not levying and collecting an execution in favor of the plaintiffs against one Joel Wilson, and for neglecting to make a return of non est inventus on the same, so as. to charge the bail on the original writ. The plea was the general issue, and trial by jury.

<p>A recognizance is matter of record and cannot be aided by any parol averments. If made returnable at a time wlien no term of court is holden, and there is nothing in the record from which the court can infer that such time was intended to describe the time of the next session of the court, the recognizance is void.</p>

This was an action of book account, brought to recover for the following items of charge, viz; 1814, February, Serving writ, Fanal v. Young, #0 29 1817, July, do. do.

Audita Querela to set aside a judgment of- the county court for Franklin county, and an execution issued thereon, in favor of this defendant against this complainant and others.

<p>Assumpsit, in which plantiff declared against the defendant upon a note payable “in good saleable fulled cloth, on ‘ the 1st day of November 1838, at its cash price”</p> <p>On the trial in the county court, the plaintiff offered in support of his declaration, a note payable “ in good saleable ‘ woolen fulled cloth on the 1st day, of November 1838, at c its cash value.” The defendant objected to the introduction of the note offered, on the ground of variance between it and the one described in the declaration. The execution of the note having been admitted, the court overruled the objection and permitted the note to go to the jury, who returned a verdict for the plaintiff. The defendant excepted.</p> <p>The contract given in evidence must agree in substance and in terms with that stated in the declaration. Bristow v. Wright, 2 Doug. 166. Lord Ray. 735. Phil. Ev. 168. 1 Starkie’s Ev. 374-5. Russell v. South Britain Society, 9 Conn. R. 508. Barnwell v. Taint or's Admistrator, 5 Conn. R. 273.</p> <p>The distinction in the manner of proof, between matter of substance and matter of description, is, that the former must be substantially proved, and the latter literally proved. Stoddard v. Palmer, 10 C. L. R. 4. Purcell v. Macnamara, 9 East’s R. 157. 1 Starkie’s Ev. 383.</p> <p>An allegation that a note is payable in “ fulled cloth,” varies both in substance and description from a note payable in “ woolen fulled cloth,” and a note of the latter description will not support such an allegation.</p> <p>I. Because “fulled cloth” is not necessarily composed of wool exclusively, but may be, and often is, wrought from wool and cotton or flax combined, and from the two latter materials alone, and various others, where wool forms no part of the texture.</p> <p>2. Because the term, woolen, is descriptive of the contract and cannc. be suppressed or superadded, without destroying its identity.</p> <p>Whenever an allegation limits or narrows that which is essential, it is necessarily descriptive; and whenever- that which is proved, in addition to what is alleged and is descriptive of and affects its identity, the variance is fatal; for that which is essential to a correct description has been omitted. 1 Starkie’s Evv 386, 388, 398, 2 C. L. R. 146. That there is a material variance between the plaintiff’s declaration and the note offered in proof, the following cases are referred to. Jones v. Cawley, 10 C. L. R, 377. Sax-ton v. Johnson, 10 Johns. R. 418, and cases cited in note, Rossetter v. Marsh, 4 Conn. R. 196, Carley v.Dean, 4 Conn-259. Rossetter v. Downs, 4 Conn. 292. Barnwell v. Taint- or’s Administrator, 4 Conn. R. 568. Watson v. Osborn, 8 Conn. R. 363. Lawrence v. Knico, 10 Johns. 140. Baker v. Newbigin, 21 C. L. R. 389, 435. 5 Peters’ Cond.R. 225. Spraule v. Legg, 14 C. L. R. 174. Cook v. Graham, 3 Cranch, 229. Sheehy v. Mandeville, 7 Cranch, 208. Page’s Administrator v. Bank of Alexandria, 7 Wheaton’s R. 35. Alexander v. Harris, 4 Cranch, 299. Dillingham v. United States, 2 Wash. C. C. R. 422. Ferguson v, Harwood, 7 Cranch, 413. United States v. McNeil, 1 Gallis. 387. Pope et al. v. Bonnett, 1 Mason, 117. Trask v. Duvall, 4 Wash. C. C. R. 181. Craig v. Broion, Peter’s C. C. R. 139. Smith v. Barker, 3 Day’s R. 312, Sebree v. Dorr, 9 Wheat. 558. Vail v. Strong, 10 Vt. R. 457. Brown v. Knill, 6 C. L. R. 167.</p> <p>The plaintiff has declared' according to the substance and effect of the note. Domestic woolen milled cloth has long been known and designated in Vermont, and particularly in this county, by the name of fulled cloth. And other kinds of milled cloth, composed wholly of wool, are known and designated in commercial dealings by particular names, such as broadcloth, plaid, kerseymere, &c.r and, to satisfy a promise to pay the one or the other, the party promising would have to deliver an article composed wholly of wool. And in the description of articles of trade, a variance will be material or otherwise, in point of law, as it is material or immaterial in point of fact in ordinary language and acceptation.</p> <p>And the court will take notice of the meaning of English words and terms of art, however peculiar to a particular county or place. 1 Chit. PI. 224.</p> <p>It is a universal rule that it is sufficient to prove any allegation according to its legal effects, or, in other words, when an instrument is described by its substance and effect, it is sufficient to prove it by one which corresponds in legal effect. 3 Stark. Ev. 1564, 1589. 1 H. B. 283. 4 Conn. R. 77.</p> <p>The word, woolen, in the note- has no legal operation, as the note is the same in substance without it. And the omission to allege that whichfhas no legal operation is immaterial. 3 Stark. Ev. 1597. The case shows a mere redundancy of proof, which is always immaterial when the additional matter proved does not alter the legal effect of that which is alleged. 3 Stark. Ev. 1563, 1564.</p>

This was an action of book account, in which the auditor, to whom, after a judgment to account, it had been referred by the county court, reported a balance due the plaintiffs upon the following facts, found by him, to wit: The defendants on the 4th May, 1839, were partners under the firm of R. T. Cull & Co. and, on that day, bought of plaintiffs a bill of goods amounting to $119.65, which were charged on book.

<p>This was an action of assumpsit, in which the plaintiff declared against the defendants, as members of the Congregational Society of East Berkshire, upon their contract to pay him one hundred and twenty-five dollars for building a shed, and repairing the parsonage house, belonging to them.</p> <p>The declaration contained also general counts for work and labor and materials, &c.</p> <p>On the entry of this case in the county court, it was referred, by agreement of parties, to refereesjMfflb reported that, having heard the parties and their proofsffflTallegations, they found that the defendants did assume and promise as the plaintiff alleged in his declaration, and that there was due to the plaintiff, from the defendants, the sum of sixty-six dollars and sixty-six cents.</p> <p>They further reported that on the trial before them,the plaintiff offered evidence tending to prove that certain individuals had called themselves members of the Congregational Society of East Berkshire; that such individuals had held meetings, and in one of said meetings had contracted with the plaintiff to perform the work and labor, as stated in bis declaration. To this testimony the defendants objected on the ground that some written constitution or organization of the society should be produced. The objection was overruled by the referees and the evidence admitted.</p> <p>They further reported that the defendants offered witnesses, who were members of said society, (if any such society legally existed,) who were objected to by the plaintiff, on the ground of interest, and the witnesses were excluded by the referees, and that on the hearing and decision of this cause, the referees intended to decide according to the principles of law.</p> <p>This report was accepted by the county court and judgment rendered thereon for the plaintiff, to which the defendants excepted.</p> <p>There is no person, either natural or artificial, as defendants, described in the plaintiffs writ, against whom any judgment can be legally rendered and enforced. The suit is against the members of what the plaintiff alleges to be the Congregational Society of East Berkshire, and if the plaintiff obtain a judgment in this suit, it must be against the members of said society and the execution must correspond with the writ and judgment.</p> <p>If the suit was intended to be against the persons who were present at the meeting when the contract (if any) was made with the plaintiff, such persons should have been individually named in and served with the writ.</p> <p>If the suit was intended to be against the society, it should have been brought against it by its corporate name. ; “ The Congregational Society of East Berkshire,” if that be the name, should have been summoned to answer unto the plaintiff. If a judgment should be rendered against the members of such society and the execution be made out accordingly, whose'property will the sheriff levy upon ? Will it be the property of some reputed to belong to such society ? or will it be on the corporate property of such society ?</p> <p>The person named in the writ is the party to the suit, and not the person named in the declaration, and if the person named in the declaration differ from the person named in the writ, the proceedings will be set aside for irregularity. 1 Chitty’s PI.283-4. ■</p> <p>2. It was absolutely essential for the plaintiff, in order to recover against such society in their corporate capacity, to have shown by the best evidence the nature of the case would admit of, to wit, the record, that there was a legally organized society.</p> <p>If any such society has ever been organized the plaintiff could have summoned the clerk of such society to bring in the record.</p> <p>3. If, however, the plaintiff had showed a legal organization of the society, agreeably to the provisions of the statute, still he would not be entitled to recover upon the facts reported by the referees. The contract set up by the plaintiff’ was not made by any agent having authority to make it, nor was it made, nor afterwards approved of, by any vote of the society. Hayden et al v. Middlesex Turn. Co., 10 Mass. R. 397. Andover Turn. Co. v. Hay, 7 Mass. R. 102. Essex Turn. Co. v. Collins, 8 Mass. R. 292.</p> <p>The referees report, that the plaintiff offered evidence tending to prove ‘ that certain individuals had called them- ‘ selves members of the Congregational Society of East ‘ Berkshire; that such individuals had held meetings, and, in ‘ one of said meetings, had contracted with the plaintiff to ‘ perform the work and labor stated in his declaration.’</p> <p>4. If the legal organization had been shown, the contract declared upon was not within the powers conferred upon such corporations by statute. Comp. Stat. 600 and 602.</p> <p>The form of agreement prescribed by the 3d section of the act passed November 10, 1814, for constituting such associations, limits the powers of the society thus organized to the sole purpose of building a meeting house, and settling and supporting a minister.</p> <p>5. The witnesses offered by the defendants and excluded by the referees, ought to have been permitted to testify. They could have been excluded (if at all) only on the ground that they were in fact members of a legally organized society and that such society was a party to the suit. They could in no way be interested in the event of the suit, unless they were members of such a society. Now the referees do not, in theiv report of facts, state that they found the existence of such a society, but, on the contrary, they have left that fact undecided.</p> <p>But if the witnesses offered were in fact members of such society, still they ought to have been permitted to testify. They had no such interest in the event of the suit as would have legally disqualified them as witnesses. Comp. Statute page 107.</p> <p>I. The defendants, by appearing in the action, admitted their corporate existence. If they have no such existence, they cannot be injured by a judgment. If they are misnamed in the writ, this defect can be taken advantage of only by plea in abatement. 1 Chit. 440.</p> <p>Hence the plaintiff, on the trial of the general issue, was not bound to prove the coporate existence of the defendants, by producing their articles of association.</p> <p>The statute does not require any bye-laws or written regulations in cases of such associations, and whether any existed or not, does not appear.</p> <p>It is sufficient for the plaintiff to have proved that the defendants professed to act in a corporate capacity and in such capacity made the contract in question. They could have shown their articles of association, and by them have shown, if the fact were so, that the proceedings were contrary to the provisions of those articles. But instead of doing this they attempted to put in issue the fact of their own existence, and that, not by plea in abatement, but on the trial of the merits before the referees.</p> <p>Corporations, like individuals, are liable in the capacity in which they hold themselves out to the world. 1 Swift, 71.</p> <p>II. The members of the society were not competent witnesses for the defence.</p>

Assumpsit upon a judgment of the supreme judicial court of Massachusetts. The defendant demurred to the declaration and the county court adjudged it insufficient. The plaintiffs excepted. Assumpsit has been recognized as a proper form of action in a suit upon a foreign judgment, the judgment itself being the consideration of the implied promise and the foundation of the action.

Trespass for taking a yoke of oxen. Plea general issue, and trial by jury. On the trial in the county court, after proof of the taking, the defendant proved that he took the property, as constable of Fairfax, on a writ of attachment against one William Lawson, and as said Lawson’s property.

This case came to this court by appeal from the decree of the court of chaucery for this county, at its September term, 1841, assigning to the matrix dower in the real estate of her late husband, and ordering the defendants to pay her, by the time in said decree limited, a certain sum to make up, with what she had received, one third of the value of the personal estate left by her said husband, after payment of his debts and funeral expenses.

This was an appeal to the county court from a decree of the probate court'for the district of Grand Isle, disallowing a paper presented to said probate court as a copy of the last will and testament of Peter Minkler.

This was an action of trespass for breaking and entering plaintiff’s close, in Alburgh, and for breaking and entering plaintiff’s dwelling-house and destroying his goods and chattels.

This was debt on simple contract. Plea, general issue with notice of special matter.

This was a trustee process. In the county court the said Alanson M. Clark made his disclosure, in writing, setting forth that the principal debtor, Thomas Clark, in 1835, conveyed to’him a large amount of property for the purposes and upon the conditions and trusts set forth in the instrument of conveyance ; that said Thomas, at the January term of the supreme court for Franklin county, brought his bill in chancery against the said Alanson M., stating, among other things,…

Trespass, for taking one yearling heifer, two calves and five swine. Plea, not guilty, with notice of special matter. Issue to the country. On the trial in the county court, it appeared that, on the ninth day of July, 1839, Reuben Rockwood owned the property in question and being indebted to the plaintiff, sold it, on that day, to the plaintiff, for its fair value, at the house of Samuel H. Holly, and Holly agreed to keep it for the plaintiff.

This was an action of account, charging the defendant as partner with the plaintiff, from the fourth of April, 1835, to the fourth of April, 1837, in the business of carding wool and dressing'jeloth, and that the defendant, during that time, received one thousand dollars more than his just share, to account for, &c. Upon this declaration judgment to account was rendered-in the county court by consent of the parties, and auditors were appointed, who reported a balance in…

Assumpsit, upon a written guaranty, executed by the defendant to the plaintiff, of the following tenor: ‘ Whereas, Buck & Bailey indorsed a note, made by ‘ Amasa B. Gibson and Reuben Gibson, for nineteen hundred ‘ and fifteen dollars and thirteen cents, dated June 26, 1828, ‘and payable one year from date, with interest, which note ‘ is now the property of Joseph Russell.

<p>The supreme court have not jurisdiction of a petition to set aside a default entered in the county court.</p> <p>The statute, authorizing the supreme court to grant a new trial on petition, does not extend to a judgment rendered on default.</p> <p>It is incident to the power of a court to set aside a default, at the time when it is entered, or at a subsequent time, on sufficient reasons.</p>

<p>Debt on an administrator’s bond, executed to the Probate court for the district of New Haven, by Everett D. Hall, (deceased,) administrator of the estate of Azel Wentworth, as principal, and by the dsfendants as sureties.</p> <p>The action was commenced and prosecuted in the county court by Augustus White and T. Downey. Judgment having been rendered for the penalty of the bond, the plaintiff moved to amend the declaration by assigning additional breaches of the bond. Leave to amend was granted by the county court, and an amended declaration was filed, in the name of White, alone, as prosecutor. For this cause the defendants moved to dismiss the amended declaration, and the county court thereupon dismissed it. The plaintiff excepted to the decision.</p> <p>and cited Bigelow’s Dig. 67, 68. Statute, Slade’s Comp. 334. D. Chipman’s R. 262,</p>

Assumpsit, for money paid, money had and received and money lent, against the defendants, as partners. Sweat was defaulted, in the county court, and Lewis pleaded non-assumpsit. Issue to the country.

This was an action of trespass on the case, counting, in the first count, in trover, and, in the second, on the special circumstances of the case. Plea, not guilty; issue to the court. On the trial, in the county court, the plaintiff introduced evidence proving the following facts.

This was an appeal from a decree of the court of chancery against the defendants.

<p>Where a person, seized of lands, for the consideration of one dollar and for love and affection, executed a deed conveying the lands to his brother, and afterwards delivered the deed to a third person to be by him kept un. til after the grantor’s death, and then to be delivered to the grantee, and the grantor retatnS3”possession of the Tands-tluring-his-life, and after the death of the grantor the deed was delivered' to the grantee, and a part of the lands so deeded were afterwards set off to the widow of the grantor, under an order of the probate court, as her dower in the real estate of the grantor; it was hold that such deed did not operate to convey the lands, so as to deprive the widow of her dower therein.</p>

Assumpsit, upon a contract of the following tenor;— ‘For value received, we, the agents of the Wallingford ‘ Manufacturing Company, promise to pay Calvin G. Roberts ‘ ten hundred dollars and interest till paid, and this note is to ‘ be subject to such assessments as shall be made on the capi- ‘ tal stock of said company, subscribed for by the said Roberts, and if such assessments shall not cover the full ‘ amount of this note, then the balance to be paid in two ‘ years from…

This was an appeal from a decree of the court of chancery dismissing the orator’s bill. . The orator’s bill was brought in common form to foreclose a mortgage executed to the orator by the defendant, Wright, who answered the bill, and, in his answer, set forth facts constituting a full defence, upon the merits, but these facts were not responsive to the bill. The answer was not traversed.

Trustee process, against Brownson Harmon and others, partners, under the firm of B. Harmon & Co., who were sued as trustees of William Williams, of West Troy, in the state of New York.

Trover, for thirty tons of hay. Plea, not guilty, and trial by jury.

Assumpsit, on a promissory note, against the defendants ,as partners under the name and firm of Caleb Sayles & Co. Plea, non assumpsit. Issue to the court. The writ in this case was prayed out on the fifth day of Mayj 1840, and made returnable at the June term of the county court.

This was an appeal from an order of removal of Abel Derby, Catherine, his wife, and seven minor children, from the town of Manchester to the town of Dorset, made by two justices of the peace on the 20th day of April, 1840, at a court of examination held at said Manchester on the day and year last aforesaid.

Assumpsit, against the defendant as indorser of a promissory note of the following tenor : ‘ Bennington, December 29, 1838. ‘ On the first day of April, one thousand eight hundred ‘ and forty, for value received, I promise to pay Uriah Edger- ‘ ton or bearer, one thousand and fifty-six dollars. ‘Caleb Sayles.’ On the back of which note was indorsed, in blank, the names of Luman Norton and Samuel C. Raymond. The declaration also contained the common counts.

Assumpsit,, on a promissory note given for value received by the defendant for one hundred dollars, dated July 1,1839, payable to the plaintiff, or bearer, by the first day of September, 1839, with interest. Plea, non-assumpsit, issue to the court.

This was an action on the case for diverting and turning away the water of a certain stream, or water course, in Bennington, on which the plaintiff had a factory for the manufacturing of stone ware and fire brick, by means of which the plaintiff was deprived of sufficient water to work his factory. Plea, not guilty.

Debt, upon a recognizance entered into by the defendant to the plaintiff, at the September term of the county court, 1834, conditioned that one John Wellman, who then had a suit pending in said court, in his favor and against the present plaintiff, should prosecute said suit to effect, &c. The defendant pleaded nul tiel record and also a declaration in offset in five counts, as follows : First count.

This was an action of book account. The original writ was returnable on the 30th of December, 1840, before a justice of the peace, and the suit came, by appeal, into the county court.

Assumpsit, on a promissory note, dated March 28, 1838, given by the defendants for $85.00, to the plaintiff, or order, payable on demand, with interest, for value received. Plea, non assumpsit. Issue to the country.

Case against the defendant, as sheriff of Windham county, for the neglect of his deputy, in not safely keeping and returning, to be sold on execution, seven cows, attached on a suit in plaintiff’s favor against one Dexter. Plea, general issue, and trial by jury. On the trial in the county court, the plaintiff introduced testimony tending to prove the allegations in his declaration.

This was an appeal from a decree of the court of chancery, dismissing the orator’s bill. The bill was brought to obtain a decree allowing the orator to redeem certain mortgaged premises, and for an account of the rents and profits.

This was a complaint filed in the county court, at the November term thereof, 1840, but entitled of the May term, 1840, by Carey Allen, administrator of the estate of Sylvester Edson, deceased, intestate, setting forth that commissioners were appointed by the probate court for the district of Hartford to receive, examine and adjust all claims and demands against said estate, and those exhibited in offset thereto ; that the defendants presented to said commissioners, for…

This was an action of debt, in which the plaintiffs declared, in substance, that heretofore, to wit, on the 22d day of November, 1835, the selectmen of the town of Reading laid out a road through the plaintiffs’ land in said town and caused a survey thereof to be' recorded, and afterwards, to wit, on the 20th day of May, 1839, without tendering to the plaintiffs, before opening said road, or at any other time, any recompense for the damages sustained by the plaintiffs in the…

<p>Assumpsit for money had and received. Plea, non assumpsit.</p> <p>On the trial in the county court the plaintiff gave evidence tending to prove that the defendant was postmaster at Woodstock, and,the plaintiff was postmaster at Barnard, no postoffice intervening; that, by direction of the plaintiff, the officers of Woodstock bank inclosed fifty-eight dollars "of the bills of said bank in a letter, sealed and directed to the plaintiff, and delivered the same to the defendant in the post office at Woodstock, to put into and send by mail to the plaintiff at Barnard, but that said letter had never arrived at the post office, in Barnard, and never came to the plaintiff.</p> <p>The defendant introduced evidence tending to show that said letter was never delivered to him. He also gave in evidence the laws and regulations of the post offices, and also showed that on the same day and hour the mail from Woodstock to Barnard is made up and sent off, five or six other mails are made up and sent from the Woodstock post office.</p> <p>The plaintiff requested the court to charge the jury that if the jury find the letter containing the money was delivered to the defendant the plaintiff was entitled to recover, unless the defendant proved what became of it, or showed that it was sent by 'the mail to Barnard.</p> <p>The court charged the jury that proving merely that the letter containing the money was delivered to the defendant, was not sufficient to entitle the plaintiff to recover. It must appear that the money actually came to defendant’s use or was by him retained for his own use. If the jury were convinced that the letter was received by the defendant and was by him neglected to be mailed, but was kept and retained by him, then the plaintiff was entitled to recover. But if the jury find the letter, containing the money, was not delivered to the defendant, or if it was delivered to him and was by him mailed to Barnard, or was by mistake directed to a different place, or put into a wrong mail, and so lost, then the plaintiff was not entitled to recover.</p> <p>The jury returned a verdict for the defendant, and the plaintiff excepted to the charge of the court.</p> <p>If the plaintiff has any right of action against defendant, this is the proper form of action.</p> <p>When money is delivered to a person for any particular object, it is reasonable that that person should, in some way, account for it.</p> <p>If the money had been thus delivered to a private person, that person-would have been obliged to account for it, and that, too, although he was to receive no compensation for his care of it. And will a public officer be holden to a less rigid account, when he is under oath faithfully to perform such service and is liberally paid for it ? See post office regulations, p. 38 and 39. It would be no unreasonable requirement to ask at the hands of the defendant to account for the package of money. If he did his duty in the matter, his records would furnish proofs which would have been, at least, sufficient prima facie evidence of his having transmitted it by mail.</p> <p>The charge of the county court required of the plaintiff to prove that defendant actually broke open the letter and took the money and put it£ to his oiOn use,’ and that by the testimony of witnesses who saw it done, or what was tantamount to it; but would not allow the jury to consider the fact of defendant’s having received the package containing the money, and never accounting for it or attempting to account for it,as any evidence from which such a conclusion could be drawn. The plaintiff must prove that defendant £ retained’ the money and that it came to his £ use.’ If then the defendant had given it away or burnt it up, he would not be liable. Simply retaining it is not enough ; it must come to defendant £ use.’ Neglecting to mail it, would not make him liable, unless £ he kept and retained it,’ and this affirmatively and directly proved by the plaintiff.</p> <p>If, then, he neglected to mail it, and through accident or design it was thrown with rubbish and lost, he was not liable. We contend, that if defendant put the money into the wrong mail, and it was lost, he is responsible for it. It was a breach of duty for which he should be responsible; and though it be by mistake, he should not be excused, as others should not suffer for his mistakes.</p> <p>Where goods are delivered to a wrong person through mistake trover likes. 1 Sw. Dig. 536 — 7.</p> <p>No other rule than that contended for by plaintiff, as appears to us, would insure a faithful performance of official duty, and nothing short of that would secure the rights of the public. 2 B. & A. 702. Com. Dig. vol. 7, title, trover,</p> <p>1. The plaintiff was not entitled, by law, to the charge requested. It is an assumpsion, that a post master is, by law, a warantor, prima facie, that every letter, entered in his office, shall arrive at the place of its ultimate destination, unless he can trace its non-arrival, or non-delivery there, to the fault of some other person. It assumes that every post master, in whose office a letter is deposited to be sent by mail, in case of its non-delivery at the place of destination, is guilty of a crime (the stealing of the letter or package,) and leaves him to the ‘ mercy of accident’ to prove his innocence if he can. This is contrary to the first principles of natural justice and of law, which are, that every man shall be holden innocent till he is proved guilty, and that a public officer is presumed to have done his duty, till the contrary is made to appear.</p> <p>And the form of the action makes no difference, for the assumpsit, in such case, can be founded upon nothing other than an implication that the postmaster has criminally purloined the money sought to be recovered, from the letter in which it was inclosed ; the plaintiff assuming, as fact, that the crime has been committed, and waiving the tort.</p> <p>Precedents and authorities are unnecessary to demolish an assumption so impracticable and absurd.</p> <p>2. The charge of the judge to the jury gives the true rule of law.</p> <p>From the tendency of the various proofs on the trial, the jury might well have found that the letter was delivered, or that it.was never delivered, to the defendant, or at his office ; or, ip delivered, that it was retained by him, or, that it was mailed to Barnard and there lost, or that it was accidentally misdirected or deposited in a wrong mail, and so lost; — and so the money never coming to his hands — according to the preponderance uf the proofs.</p> <p>1. They did not find that the letter was received and retained by the defendant, for, if they had so found, their verdict, under the charge, would have been for the plaintiff.</p> <p>2, They must have found, therefore, that the letter was never delivered to the defendant or at his office — or, that it was mailed to Barnard and there lost — or, that it was missent to some other office, or by a wrong mail, and so lost— in either of which possible events, the money never came to the hands or use of the defendant.</p> <p>And the plaintiff was not entitled, to recover, therefore, in this form of action, upon any possible finding of the jury, upon the preponderance of the proof submitted to them.</p> <p>The charge of the judge, was, therefore, in strict accordance with the well settled principles of the law. Cbitty on Con. 476, et seq. 5 Greenl. R. 319.</p> <p>3. If the jury could have believed, from the facts found, that the letter was misdirected, or missent through the culpable negligence, or carelessness, of the defendant — the charge, in this action, could not legally have been other than what it was.</p> <p>If such were the facts, the plaintiff’s remedy was by action on the case to recover his consequential damages — in which the issue would have been, not upon a promise of the defendant to pay money ; but upon his guilt or innocence of a charge of neglect of official duty resulting in an injury to the plaintiff.</p> <p>When the plaintiff shall have brought such a case to the consideration of the court by his plea and sustained it by his proofs, he may ask for a charge applicable to it, but not till then; for, the charge, to be legal, must be one which will enable and require of the jury to return a verdict riot only secundum probata, but, secundum allegata also. Vide Ainslie v. Wilson, 7 Cowen’s R. 662.</p>

Trespass on the case, under the statute, to recover damages for injuries to the plaintiff’s horses and carriages, which happened in consequence of the insufficiency or want of repair of a certain road in Royalton. Plea, not guilty, and trial by jury.

<p>Assumpsit on the warranty of a horse. The plaintiff declared in two counts. The first count was in the usual form, and each count alleged that the plaintiff had been put to great charges and expenses in and about feeding, keeping, and taking care of said horse, ' to wit, the sum of onehun- ' dred dollars.’ The whole declaration.concluded 'to the ' damage of the plaintiff one hundred dollars.’</p> <p>In the second count the plaintiff declared, ' that, whereas, ' &c., on &c., in consideration that the plaintiff, at the like ' special instance and request of the defendant, had then and ‘ there delivered to the defendant a certain other horse of ' him the plaintiff, in exchange for a certain other horse of ‘ him the defendant, &c., he, the defendant, then and there ' undertook and faithfully promised, &c.’ (setting out the warranty and alleging the breach.)</p> <p>This action was commenced before a justice of the peace, and was appealed to the county court. The defendant moved the county court to dismiss the action on the ground that it appeared, from the declaration, that the justice of the peace had not jurisdiction of the plaintiff’s claim. The county court overruled the motion, and a verdict was found for the plaintiff. The defendant then moved in arrest of judgment for the insufficiency of the declaration. This motion, also, was overruled, and judgment rendered for the plaintiff on the verdict. The defendant excepted. - r</p> <p>I. The justice, who tried this cause, had no jurisdiction, because the plaintiff alleges, in each of his counts, that the horse he bought of defendant was greatly injured in consequence of the unsoundness complained of, and rendered of no value; and that the plaintiff expended one hundred dollars in keeping and taking care of said horse in consequence of said unsoundness, and hence the matter in demand exceeded one hundred dollars.</p> <p>II. The second count in the declaration is insufficient, because the warranty is alleged to have been made after the exchange, and in consideration thereof. Bloss v. Kittredge, 5 Vt. R. 28.</p> <p>III. There was a general verdict, and if one count in plaintiff’s declaration is bad, judgment must be arrested.</p> <p>I. The case was within the jurisdiction of the justice. Although the two counts, when taken together, amount to more than orje hundred dollars, yet, as they are both for the same thing, it constitutes no objection, inasmuch as either-count alone is clearly within the jurisdiction of the justice. Richards v. Davidson, 1 Aikens’ R. 215.</p> <p>II. The decision of the county court, overruling the motion in arrest, was. correct. The two counts in the plaintiff’s declaration are good, and in strict conformity to the most approved precedents. 2 Chitty’s Pleadings, 100, 102. Hayes v. Warren, 2 Strange’s R. 933. Pillans v. Mierop, 3 Burrow, 1671. 1 Saunders’ R. 264, note 1. 1 Chitty’s Pleadings, 296.</p> <p>III. If either count was defective, the defect would be aided by the verdict, unless the defect be such as to amount to an omission of the gist of the action. 1 Salk. 29. 3 Burrow’s R. 1725. Bull v. Steward, 1 Wilson’s R. 254. 5 Comyn’s Dig. 521, title Pleader, sec. 45. Stone v. Van Curler, 2 Vt. R. 115, 116. 2 Strange, ut supra.</p>

<p>When the statute requires seven days notice of the meetings of school districts, a notice dated on the first day of the month, for a meeting to he held on the seventh, is not sufficient.</p> <p>The warrant for such meeting must specify the business to be done.</p> <p>Such omissions and defects render void the proceedings of a meeting of the district.</p>

<p>These cases were actions of debt on jail bonds. Each case presented the same question for the determination of this court and both were argued together.</p> <p>The first named action was upon a bond, dated September 12,1840, given by Daniel Marsh, as principal,and John Strong as surety, for the admission of said Marsh to the liberties of the jail yard in Windsor county, who was then imprisoned by virtue of an execution issued on a judgment rendered by Walter Palmer, a justice of the peace, on the 31st day of July, 1840, in favor of the plaintiff, Witt, for $77.97 damages and $3.20, costs.</p> <p>The defendants pleaded in bar of the action, in substance, that the said Marsh, at the time of the rendition of said judgment and of issuing and levying said execution, was and ever since has been, a resident citizen of this state; that said judgment was recovered in an action founded on contract, to wit, book account; that between twenty and thirty dollars of the plaintiff’s account accrued after the first day of January, 1839, and that said judgment was rendered for and included the account accruing after the first day of January, 1839, and also the account accruing previously thereto; that there were no credits on the plaintiff’s books; that the execution which issued on said judgment, and by virtue of which the said Marsh was imprisoned, was a capias against the body of said Marsh, contrary to the statute in such case made and provided, &c.</p> <p>To this plea the plaintiff demurred generally!</p> <p>The other action was upon, a bond dated July 17, 1840, given by said Marsh, as principal, and Homer Webster as surety, for the admission of said Marsh to the liberties of the jail yard, who was then imprisoned by virtue of an execution issued on a judgment rendered by Norman Williams, a justice of the peace, on the 11th day of May, 1840, by confession, in favor of Stearns, Warren & Southgate, against said Marsh for $125.75 damages and 25 cents costs.</p> <p>The defendants’ plea to this action was the same, in substance, as the plea to the preceding action, above set forth, excepting that the accounts between the parties were thus stated in the plea ; — ‘ the amount of the charges on the ‘plaintiffs’ book was $173.61; that only ten or fifteen ‘ dollars of said account accrued against said Marsh before ‘ the first day of January, 1839, and the residue thereof ac- ‘ crued after the first of January, 1839, and that there were ‘ credits to said Marsh, on the plaintiff’s books, amounting to ‘ $47.00, all of which were made after the first day of January, 1839.’</p> <p>To this plea there was a general demurrer and joinder.</p> <p>The county court decided that said pleas were sufficient, and, in each action, rendered judgment for the defendants, and the plaintiffs excepted.</p>

<p>Where, in an ancient deed, conveying several lots of land, the grantors described themselves as heirs of a deceased person who owned the lands at the time of his decease, and the grantee of such heirs conveyed different lots of the same lands to different persons, who continued for thirty or forty years in quiet possession, such sale and possession is proper testimony to prove that the persons so describing themselves as heirs were in fact the heirs of the person deceased.</p>

<p>Where damages are claimed, for the breach of a special contract, the declaration must count upon the contract.</p> <p>The common counts will avail in such cases, only where the terms of the special contract have been fully performed, on both parts, and nothing remains but the simple duty of paying for money, labor, or goods, as the the case may be.</p> <p>It is not always sufficient to describe a contract in the terms in which the contract, itself, is expressed.</p> <p>If the contract be equivocal, or obscure, its obligations should be described in the language of the law, (with certainty to a common intent) to avoid the consequences of a demurrer, or motion in arrest.</p> <p>But if the contract be described in the terms of the contract itself, it is no variance.</p> <p>In construing contracts, courts will endeavor to avoid what is unequal, un- > reasonable, and improbable, if this can be done consistently with the words of the contract.</p> <p>Towns and turnpike corporations have almost an unlimited discretion, in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once, or by instalments or an annuity.</p> <p>The powers of the directors of private corporations, to bind them by contracts, depends exclusively upon the charter and by-laws (or statutes) of such corporations respectively.</p> <p>Before evidence of the contents of a writing should be admitted in evidence, it should be shown that inquiry has been made at the place, and, of the person, where, or with whom, it was last deposited.</p> <p>The rule of damages, for the breach of special contracts, where nothing has been paid, is to give the difference between what was to be paid by one party, and the value of what was to be done by the other party, and thus assess the entire damages.</p>

<p>TrespassToi- taking a stage sleigh.</p> <p>Plea, the general issue, and trial by jury.</p> <p>On the trial in the county court, the plaintiff introduced testimony tending to prove that he, with one Dow, now deceased, purchased the sleigh in question, at a sheriff’s sale, on an execution against one John Cook, and left it in possession of one Putnam, and in the same situation in which it was placed by said Cook, previous to its being taken on the execution, upon which it was sold, as aforesaid, where it remained till taken away by defendants, as hereinafter stated.</p> <p>The defendants introduced testimony, tending to prove that, before the sleigh was taken on execution, the defendant, Tilden, purchased it of said Cook, in part payment of a debt then bona fide due from said Cook, and immediately gave notice of said purchase to said Putnam, in whose possession said sleigh then was, and requested said Putnam to take care of it for him ; that after the sale of the sleigh on said execution, the said Taylor, by direction of the said Til-den, took said sleigh away and put it to their own use. Upon this evidence the defendants requested the court to charge the jury, that if they believed, from the testimony, that Til-den bona fide purchased the sleigh while it was in Putnam’s possession, and gave notice of said purchase to said Putnam, and requested him to take care of said sleigh for him, before it was seized or taken in execution, the defendants were justified in taking said sleigh, and the plaintiff could not recov» er. But the court refused so to charge the jury, and did charge them, that, if they believed, from the testimony, that the plaintiff purchased said sleigh at a regular sheriff’s sale, it vested the title in him, and that he had a right to recover, notwithstanding the defendants, at the time of such sale, were the absolute and bona fide owners of it, and had done all the law required in taking possession of it. To which charge the defendants, after verdict and judgment for plaintiff, excepted.</p> <p>A sheriff can convey no better title than he himself had to property sold by him.</p> <p>The owner of property can reclaim it, peaceably, even from a sheriff. Spaulding v. Austin, 2 Vt. R. 555. State v. Miller, 12 Do. 437. See, also, 1 Johns. R. 470, 480. 6 Do. 44. Cushman v. Cilley, 12 Vt. R. 495.</p> <p>I. We think that the character of these sales entitles them to more weight and validity than ordinary sales. They are made by a public officer in a public manner, having the apparent authority and sanction of law. It is an act of government, through its agent, after public notice by such agent, thus inviting innocent purchasers to buy. So public are they, and so free from any presumption of fraud in the purchaser, that no change of possession is held necessary.</p> <p>II. Upon grounds of public policy these sales ought to be established. The common law proceeds upon the principle that sales in market overt should be established for the support and benefit of trade. Much more does public policy require that sheriffs’ sales should be established. 2 Kent’s Com. 324.</p> <p>This would occasion no essential injury to the real owner of property, for the reason that the sale is so public that he will have sufficient evidence to establish his remedy, and of course he can establish the title to his own property.</p> <p>It can be no injury to the sheriff, for he is liable at all events, and by an indemnity he can always protect himself; also by making the purchaser safe he will receive a better price for the article, with which to respond damages to the real owner.</p> <p>The adoption of this rule is of great importance as respects the interest both of debtor and creditor, that property thus sold may command its value, which it will not do unless the purchaser is protected in his purchase, and as so large an amount of. property is transferred in this manner, this is a matter of no small consideration. Bates v. Carter, 5 Vt. R. 608. Cilley v. Cushman, 12 Vt. R. 497. Heacock v. Walker, 1 Tyler’s R. 338. Gates v. Gaines, 10 Vt. R, 351.</p>

<p>Where a person was summoned as trustee in a justice’s court, in a suit not appealable by the principal debtor, and the trustee was made chargeable and appealed to the county court, the appeal, on motion, was dismissed,— the trustee having no right to an appeal.</p>

This was an action of book account. Judgment to account having been rendered in the county court, auditors were appointed, who afterwards reported as follows:— £ Your auditors find that the services, charged in the plain- £ tiff’s account, were at first entered on small slips of paper £ by the plaintiff for a week or more, and then transferred £ from said slips by ¡the plaintiff to his regular book, which he £ kept; that said slips were then thrown aside by the plain- ‘…

Ejectment to recover the seizin and possession of certain lands. Plea, not guilty, and trial by the court.

This was an action of assumpsit, in which the plaintiff declared as follows :— ‘ In a plea of the case for that, at Braintree aforesaid, on ‘ the 16th day of April, 1839, the said town, by their agents, ‘ Calvin Randal], John S. Nichols, and Charles Brackett, in ‘ consideration that he, the plaintiff, would setttle his the e plaintiff’s claim against the town, the town should pay him, ‘ the plaintiff, the sum of $27.50; and the plaintiff avers ‘ that he, relying on the…

Indictment for burglary. The introductory part of the indictment was as follows — “ The grand jurors within and the body of the county,” &c., and the respondent was charged with breaking and entering, in the night time, the dwelling house of Erastus Allen, with intent to steal the goods of said Erastus Allen, and stealing and carrying away certain articles, the goods and chattels of one Henry B. Allen, then found in said dwelling house.

This was a qui tarn action, brought by the plaintiff'to recover of the defendants, as well for himself as for the treasurer of the county of Orange, the penalty of the statute against fraudulent and deceitful conveyances. The plaintiff1, in his declaration, after reciting the seventh section of the act entitled “ an act for the punishment of certain inferior crimes,” passed November 15, 1821, (Comp. Stat.

Trover, to recover the value of a yoke of oxen. Plea, the general issue, and trial by jury.

This was an action of book account brought before a justice of the peace. At the last term of this court, judgment to account was rendered, and an auditor appointed, who, at the present term, reported that the parties appeared before him and the plaintiff presented an account against the defendant consisting of the following items :— ‘Item 1. 1836, March. To part of day, looking out mill privilege and examining land, $ .75 ‘2. 1838.

Action on the case, against the defendant, as sheriff of Orange county, in two counts.

Assumpsit upon a promissory note made by defendant to plaintiff. Plea, general issue and trial by jury.

In this case, William Clark was summoned as trustee of Jacob Scott.

Trover for a quantity of rye. Plea, in abatement, that the rye in question was taken by the defendant, as constable of Worcester, on ah execution against Martin C. Brown, and as the property of said Brown, and that the writ in this case was served on the defendant on the 4th day of December, 1841, and made returnable on the 11th day of the same December. Demurrer to said plea, and joinder in demurrer.

Assumpsit by indorsee against maker of a promissory note. Plea, general issue and the statute of limitations. Issues, to the court. On the trial in the county court, the following facts ap-. peared. — The execution and indorsement of the note were conceded.

<p>Where one has claims of title to land by deed or other writing, and from time to time continues to enter upon the same, and to do acts, which, in connection with his avowed object, at the time of doing them, evince an intention to use the land as his own, this will be construed a possession of the land in such person, to the extent of his written claim of title.</p> <p>If such acts be done by one who has contracted to purchase the land, and has entered upon it, by consent of the person holding a written claim of title, then they constitute a possession in the vendor.</p> <p>Cutting a road upon land with a view to get timber, or to fell trees in order to clear and cultivate land, constitutes, in connection with a written claim of title, a constructive possession to the whole tract described.</p>

This was au action of book account, in which judgment .o account was rendered in the county court, and an auditor appointed, who afterwards reported as follows:— ‘ The plaintiffs’ account is allowed at the sum of one hun1 dred forty-one dollars and thirty cents, and the defendant’s ‘ at the sum of one hundred dollars and fifty-five cents, which ' leaves a balance of forty dollars and seventy-five cents due £ from the defendant to the plaintiffs to balance book ac-c counts…

This was an action of book account, which was referred to an auditor who reported a balance in favor of the plaintiff. The report was- made to the April term of the county court, 1841, at which term the defendants pleaded in bar a settlement of the suit made between the parties since the last continuance. The issue upon this plea was put to the-court.

This action came into this court by an appeal taken by the town of Waterford from an order of removal of one Mary Olive Goodhue, made by two justices of the peace, removing said Mary O. Goodhue as a pauper from the town of Kirby to the town of Waterford. Plea, that the pauper was unduly removed, because the town of Waterford was not the place of the pauper’s legal settlement, and issue to the jury.

Trespass for a colt. Plea, not guilty and trial by jury. On the trial in the county court, the plaintiffs introduced testimony tending to prove that the overseers of the poor of ’ the town of Lyndon, in the fall or winter of the year 1839— 40, were notified by the overseers of the poor of the town of Burke that one Josiah Jones had become chargeable to that town, and that his legal settlement was in the town of Lyndon ; that the overseers of Lyndon examined into the case,…

This was an action of assumpsit, commenced before Calvin Morrill, a justice of. the peace. At the return of the writ the defendants pleaded to the jurisdiction of the justice, that, at the time of signing the writ and at the time of trial, he was a postmaster under the authority of congress,¿and, as such, was ineligible to the office of a justice of the peace, and unauthorized to take cognizance of said action.

This was an action of covenant broken, brought on the defendant’s covenant that certain lands, conveyed by the defendant to the plaintiff, were free and clear of all incumbrances. Plea non est factum, and a plea that the defendant had performed his covenant. Issues to the country.

This was an action of book account. Judgment to .account having been rendered by the county court, auditors were appointed who afterwards reported, in substance, as follows:— In the beginning of the winter of 1827-8, the plaintiff, who is the defendant’s father, entered into a verbal agreement with the defendant, who had then just arrived of full age, to live with, take care of, and support him and his wife during their lives, and their children until they were of a suitable…

Trespass on the case for a fraudulent representation, in selling a horse. Plea, general issue, and trial by jury.

Case, against the defendants for the neglect of their constable.

Assumpsit, on a prommissory note, given by the defendant to the plaintiff for fifty dollars, payable in good well-finished plows, at the defendant’s shop, in the month of February, 1840.

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

Assumpsit on a promissory note given by the defendant to the plaintiffs for $13.18, dated March 10,1834. The action was commenced before a justice of the peace.

Case, against the defendants, who were partners and practising attorneys, residing in Lamoille county, in this state, for misconduct and negligence in regard to a demand against Isaac R. Pettingill, left with them by the plaintiff for collection, in March, 1838. The plaintiff resided in Essex county. Plea not guilty, and trial by jury.

Audita Querela, to vacate a judgment and execution. The complaint was in substance as follows: that at the county court begun and holden at Guildhall, within and for the county of Essex, on the third Tuesday of December, 1837, the defendant recovered judgment in an action of book account, upon the report of auditors, against the complainant, for the sum of ninety seven dollars and seventy five cents debt or damages, and for the sum of seventy one dollars and fifty eight…

This was an action on the case for the neglect of Aaron Luther, constable of the town of Canaan, for the year 1830, in taking insufficient bail on a writ, dated November 24, 1830, in favor of Issac T. Beech against. Moses S. Abbott.

Assumpsit, by the plaintiff, as late sheriff of Orleans county, against the defendants upon their written receipt for a quantity of sole leather. The facts, as alleged in the declaration, were as follows.

Assumpsit, for money had and received, for money paid out, and for money lent. Plea, non-assumpsit, and trial by jury. On the trial in the county court the following facts appeared.

This was an appeal from a decree of the court of chancery that the defendants convey to the orator, as administrator of the estate of James Leach, deceased, certain lands mortgaged by the said Leach, in his lifetime, to William Barton, deceased, the defendants being the heirs and legal representatives of the said William Barton, deceased.

This was an action of book account. Judgment to account having been rendered by the county court, an auditor was appointed who subsequently reported, in substance as follows ; — Sometime in the month of April, 1840, the defendant called at the plaintiffs’ shop in Craftsbury (where Riddle, one of the plaintiffs, was making and vending tin ware,) and wished to purchase two tin trunks; that Riddle told him that he could not conveniently make such trunks as the defendant wanted,…

. This was an appeal from a decree of the court of chancery. Held: in these cases, that the judgment was a lien on the debtor’s interest, even at law, and it is clear that the attachment in the case at bar was a lien on Scott’s equitable interest in equity. Churchill v. Grow, Nelson’s Ch. R. 89. 1 Ch. Cas. 35. Crisp v. Heath, 7 Vin. Abr. 52, e, pi. 2. Griswold v. Marsham, 2 Ch. Cas. 170.

Ejectment, to recover the seizin and possession of two hundred acres of land in Hydepark, being the third division set to the right of William Reed. Plea, not guilty. Issue to the court. On the trial in the county court, it was admitted that the title of Reed to the land had come to Farmer, the plaintiff’s intestate, and that the defendant, Eleazer Strong was in possession under Amos Srong, the other defendant, at the time of the commencement of this suit.

Assumpsit, on a promissory note. Plea, non-assumpsit. Issue to the country. On the trial in the county court, the execution of the note declared on was admitted. The defendant then called Moses Page, as a witness to prove that the note had been paid before the commencement of this suit. The defendant objected to his being sworn, alleging that Page did not believe in the existence of a Supreme Being.

<p>Assumpsit, on a promissory note, dated April 16, 1840.</p> <p>Plea, non assumpsit, and trial by jury.</p> <p>On the trial in the county court the plaintiff read the note declared upon, which purported to be signed by L. Haven & Co. ; and to prove that the defendants composed the firm of L. Haven & Co. the plaintiff offered the testimony of R. Colberth, D. A. Smalley, and John W. Mason. Colberth testified, in substance, that in April or May, 1840, he had a conversation with all the defendants, and that they all said they were partners in the business of running the stage and carrying the mail from Burlington to Stanstead, and that Eli Stearns was their agent, but not a partner; that witness knew that Eli Stearns acted as their agent, and that all the parners spoke of debts due from Stearns and Palmer (meaning Eli Stearns and A. W. Palmer) to various persons along the stage route, which L. Haven & Co. were bound to and should pay. He further testified that the stage was run on said route from sometime in March or April, by L. Haven & Co.</p> <p>The testimony of Smalley tended to prove that, in the fall of 1837, or the spring of 1838, Stearns and Mason, being John Stearns and John W. Mason, who then owned the stage property on said route, sold it to Eli Stearns and A. W. Palmer ; that, to secure them, Eli Stearns and Palmer gave a bond, with Isaac Haven, Nathan Griswold, John Munson, and Simeon Covell, as sureties, conditioned that Eli Stearns and Palmer should run the stage and carry the mail during the term of John Stearns’ and Mason’s contract with the government to carry the mail, and the stage property was pledged for the same purpose; that Haven and Griswold were procured by Palmer and Munson, and Coveil by Eli Stearns, to sign as sureties; that Eli Stearns and Palmer run the stage until the 6th of May, 1839, when Eli Stearns sold out to Palmer, and, on that occasion, Palmer gave Eli Stearns his bond to perform the contract made with John Stearns and Mason, which was signed by Luther Haven and Griswold as his sureties; that Palmer run the stage until the close of the year 1839; that about that time Palmer failed, and John Stearns and Mason resumed the stage, and run it for a short time ; that about the last of March or first of April, 1840, Luther Haven, Griswold, John Stearns, Mason, and Eli Stearns were in the office of Maeck & Smalley in Burlington, and it was then agreed that a new partnership should be formed consisting of Luther and Isaac Haven and Griswold, and that Eli Stearns should be constituted and act as their agent, and that the new firm should be L. Haven & Co. ; that they should take the stage property from John Stearns and Mason, and run the stage during the continuance of the original contract of Eli Stearns & Palmer, and that they should settle and pay up the debts which Eli Stearns and Palmer had contracted and were owing to various individuals along the route ; tha,t, afterwards, on the same or next day, the same persons came again into the office with a paper, of which the following is a copy :</p> <p>‘Burlington, March 28, 1840. We, the undersigned, hav- ‘ ing taken charge of the stage property from Burlington on ‘ the route to Derby Line, by way of Craftsbury, for the pur- ‘ pose of transporting the mail on said route during the pres- ‘ ent contract with the government, have appointed Eli ‘ Stearns as our agent and superintendant on said route, for ‘ which he, the said Stearns, is to receive a reasonable com- ‘ pensation in stock on the road at the expiration of the con- ‘ tract, to manage the business for transporting the said mail ‘ on said route, and all other branches of business attached ‘ to or connected with said line. And we', therefore, bind ‘ ourselves jointly to indemnify all persons who may assist ‘ Mr. Stearns in the performance of his duties as stage agent, ‘ and we also bind ourselves to see the bills, already accrued ‘ on said road, under the purchase of Stearns & Palmer, not ‘ including bills after May 6, 1839, after the same shall have ‘ been fully and fairly adjusted, paid, we having received an ‘ Palmer, for the purpose of indemnifying us for the same. ‘ Luther Haven, ‘ Nathan Griswold, ‘ Isaac Haven Simeon Covell, Eli Stearns, John Munson.’</p> <p>Which was signed by Luther and Isaac Haven and Gris-wold ; that they inquired of the witness if that paper would constitute Eli Stearns a partner, provided he signed it, saying if it would he, Eli, was not to sign it, and if not he would sign it; that witness answered it would not; that, therefore, as he supposed, Eli Stearns put his name to it, but that neither Munson nor Covell were there, and the witness did not understand that they were any part of said company, and did not put their names to the paper until September, 1840, or afterwards ; that Isaac Haven was not at the office, but that in January, 1841, witness saw Isaac Haven, and he admitted that he had given Luther Haven liberty to put his name to the paper. His testimony tended also to prove that immediately after this L. Haven & Co. run the stage ; that in business connected therewith, and also for the aforesaid old debts of Eli Stearns and Palmer, they executed notes in the name of L. Haven & Co., and that so far as he knew during the following summer, L. Haven always represented that the aforesaid firm was composed of the defendants only, and that Eli Stearns was merely an agent.</p> <p>The testimony of Mason, was in substance the same as Smalley’s.</p> <p>The defendants contended, and so requested the court to charge the jury, that the paper of the 28th of March, 1840, did not constitute a partnership, and did not authorize any of the signers to purchase property on their joint credit, nor to give a note in the name of L. Haven & Co.; that if any partnership was created thereby, it embraced Eli Stearns, at least.</p> <p>The plaintiffs insisted that the paper did constitute a partnership between the defendents alone, at the time this note was given; and that, if the partners assumed the name of L. Haven & Co., either had a right to give the note of the firm for a company transaction ; and that, whether the paper constituted a partnership or not, if the defendants held themselves out to the world as partners, aud did business as such, under the name of L. Haven & Co., they were liable on the J note.</p> <p>The court charged the jury, that if they found that the defendants had entered into the agreement of the 28th March, 1840, and signed the paper of that date, and that Munson and Covell did not become parties to it until September afterwards, and further found that the defendants, previously to the execution of the note in suit, held themselves out to the world as partners, and did business as such, under the name of L. Haven & Co., the plaintiff was entitled to recover. But if they did not find those facts, the defendants were entitled to a verdict.</p> <p>The jury returned a verdict for the plaintiff, and the defendants excepted.</p> <p>There was properly no question of fact in the case except as connected with the execution of the paper of March 28, 1840.</p> <p>The testimony of Colberth related to a time subsequent to the execution of the note, and of course had no bearing on that.</p> <p>The testimony of Smalley and Mason is confined wholly to the conversation about framing the agreement, but as it resulted in the execution of the paper, the effect of the agreement is to be ascertained wholly from the paper.</p> <p>' The plaintiff in this suit could not be misled by any thing said by defendants, as to the partnership, as he was present when the bargain was made, and also when it was reduced to. writing.</p> <p>The effective words of the contract are, that the subscribers appoint Eli Stearns as their agent to drive the stage ; that they bind themselves to indemnify all who may assist Stearns ; that they agree among themselves to pay all the bills of Stearns and Palmer, which accrued on the road before May 6, 1839.</p> <p>This agreement to pay the bills can confer no right of action in favor of any of the creditors. Luther Haven and Griswold were bound to indemnify Eli Stearns against those bills, but the creditors could make no claim upon them. Whether Issac Haven would be bound by this agreement, to contribute with Luther Haven and Griswold is not material.</p> <p>What the defendants may have said in'relation to the contract, or what they may have considered as to the effect of it, cannot change the construction which it is to receive.</p> <p>The paper of the 28th of March, is at most but a joint undertaking to run out the stage contract and the appointment of an agent for that purpose. It has none of the characteristics of a partnership agreement. There is no common interest in the property put upon the road, but whatever either has put on will remain his own individually. There is and could be no jus accrescendi, but, on the death of any one, the stock thus placed on the road will go to his administrator.</p> <p>There is no agreement expressed or implied for any division of the profits or losses. It may be true that if any one pays more than his share of the loss he may compel a contribution ; but a liability to contribution is no evidence of a partnership.</p> <p>It has long been held, in this state, that a division of the gross earnings does not create a partnership. Boardman v. Keeler, 2 Vt. R. 65. Ambler v. Bradley, 6 Vt. R. 119. Boioman v. Bailey, 10. Vt. 170. Kellogg v. Griswold, 12 Vt. R. 291.</p> <p>A joint purchase is not a partnership. So a joint possession may render persons tenants in common, but it does not of itself make them partners. Hour v. Dawes, Douglass, 371. Cooper v. Eyre. 1 H. Bl. 37. 16 East, 173. Waugh v. Carver, 2 H. Bl. 235. Graves v. Smith, 2 Blacks. 998. Rice v. Austin, 17 Mass. 197. Loomis v. Marshall, 12 Conn. 70. 1 Johns. 106.</p> <p>I. What was the intention of the parties to the contract of the 28th of March, 1840 ? We insist that it was to create a partnership between Luther and Isaac Haven and Griswold and make Stearns their agent.</p> <p>1. It shows a joint consideration, a joint undertaking to do certain business, & joint and nota several liability, and a joint interest in profit and loss. It possesses all the requisites of a partnership. Collyer on Part. 2, 8.</p> <p>2. Eli Stearns was not a partner, but a mere agent, an(j was to be paid a ‘ reasonable compensation in stock on the road, at the expiration of the contract.’ He signed merely to show, as between themselves, that he was to be the agent, and take his pay in stock. He was to be paid, at all events; but not to share in profit and loss. Coll, on Part. 14,15, 17.</p> <p>3. It clearly appears from the testimony which was unobjected to, that Stearns was not to be a partner, but merely an agent, and that he signed the paper with that express understanding. If, therefore, the paper alone would make him a partner, as between themselves, it was contrary to the agreement, and therefore not binding on him as between the parties to the writing, and if not, the public are not bound to treat him as a partner. Coll, on Part. 55.</p> <p>4. These defendants agreed to, and did assume the name of L. Haven & Co.; and a note given by one of the firm binds the whole. Coll, on Part. 212, and on.</p> <p>II. The case shows that the county court charged the jury that they must further find that the defendants held themselves out to the world as partners, and did business as such under the name of L. Haven & Co. This was done at plaintiff’s request. Whatever construction, therefore, may be given to the paper, these defendants were clearly liable as nominal partners, by the finding of the jury. Coll, on Part. 3, 49, 51, 55, 213, in note.</p> <p>2. The evidence shows that it was agreed that these defendants alone should compose the firm of L. Haven & Co., and that Eli Stearns was a mere agent; that these defendants represented themselves to be partners and did business as such. Therefore, if the court should think that the paper, taken alone, did make Eli Stearns a partner as between themselves, a knowledge of the paper cannot affect the plaintiff’s rights, when it was contrary to the agreement of the parties, and signed by Eli Stearns with the express understanding of all that it did not and should not constitute him a partner, and all this known to the plaintiff. Coll, on Part. 212, 213.</p>

General'indebitatus assumpsit. Plea, non assumpsit. The plaintiff sought to recover in this action for boarding cadets attending the defendant’s military academy at Middletown, Connecticut, under a contract relating thereto.

In this case the exceptions were not filed in the county court within thirty days after the rising of the court, in accordance with the requirements of the statute upon that subject. The party, in whose favor was the judgment in the court below, objected to proceeding in the case on account of that irregularity.

Scire racias, on a recognizance. This case was determined in the county court (on demurrer to the declaration) in favor of the defendants. The plaintiff took his bill of exceptions, and brought the case into this court, for revision.

This case came into this court on exceptions to the decision of the county court of questions of law arising upon the trial of an issue of fact in that suit without the intervention of a jury. The party, taking exceptions in the court below, now files his motion in this court for a new trial, on the ground of having discovered new and material evidence since the trial of the cause.

This was a petition for a new trial in a cause tried in the county court. The petitionee pleaded in abatement the want of a recognizance for costs entered by the petitioner at the time of issuing the óitation.

This was a petition for a trial or hearing in a cause where judgment had been rendered against the petitioner in the county court by default.

This was a petition for a divorce from the bonds of matrimony on the ground of the husband refusing to provide for the wife suitable maintenance, he being of sufficient ability.

This was an action of book account. Judgment to account was rendered in the county court, and an auditor appointed, who, at a subsequent term, reported a balance due the plaintiff. Upon the coming in of the auditor’s report, the defendant filed a plea in offset, declaring on a promissory note, and in the common counts. The plaintiff objected to the plea, contending that it should have been filed at the term when the action was entered in the county court.