Volume 15 — Vermont Reports

Scire facias on a recognizance entered into before the county court for the county of Chittenden, by the defendant and one Henry Hand as sureties for John Williams, in custody on a warrant from said court.

This was an action on a jail bond, executed to the plaintiff as sheriff of Chittenden county, founded on an execution against the defendant, Adams, on which he was committed on the 3d of June, 1833.

<p>Information, in' five counts, filed by the state’s attorney, founded on the fifteenth section of the statute relating to offences against public policy, which declares, that if “ any company of players or persons, whatever, shall ex- “ hibit any tragedies, comedies,” &c. “ in any public “ theatre or elsewhere, for money,” &c. “ each person so “ exhibiting, shall forfeit and pay a fine not exceeding two “ hundred dollars.”</p> <p>The first count of the information charged “ that G. H. Fox, of Burlington, in said county of Chittenden, on the 4th day of July, A. D. 1842, with force and arms, at Burlington, aforesaid, did exhibit comedies, farces and ludicrous compositions, to divers citizens of this state, for money, as a reward for his the said G. H. Fox’s service and labor therein, contrary ” &c.</p> <p>The remaining counts varied the description of the offence, and charged the exhibition of a specific comedy, and the reception of money from individuals named; but omitted to charge the respondent with the commission of the acts complained of, as one of a “ company of players or persons.”</p> <p>The respondent pleaded not guilty. The jury returned a verdict of guilty; and the respondent moved in arrest of judgment for the insufficiency of the information. The motion was overruled, and the respondent excepted.</p> <p>That the respondent belonged, either to a company of players or a company of other persons exhibiting tragedies, &c., in a public place, with the intent to be rewarded for his services, and inviting, or suffering the public, generally, to witness the performance, is not charged in any of the counts of the indictment. But all these are essential ingredients to constitute the offence, and necessary to be alleged and proved, before a conviction can be had under the statute. If a single individual, only, exhibits, it is not within the act. To render him so, the court must read the statute in this way : “ If any person shall,” Sfc. wholly rejecting the word “ company. ” But whether the individual does the act entirely alone, without any connexion with any others, or in connexion with others,- is very material. In the first instance, it is not declared to be unlawful ; in the other it is visited with heavy penalties. The true reading of the statute we insist is this — “ If any company of players or any company of other persons, shall,” &c. This accords best with the rules, both of grammar and construction of statutes. “ A statute ought, upon the “ whole, to be so construed that if it can be prevented, no "clause, sentence or word, shall be superfluous, void or "insignificant.” 6 Bacon, 380, Wilson’s Ed. IjShower, 108. Rex v. Berchett, Hard. 344. To give it the construction contended for by the prosecutor, the clause, “ if any com- “ pany of players,” is wholly superfluous, and the word company will be rendered wholly void.</p> <p>Again : On the same page of Bacon, citing 1 Inst. 381, for his authority, the rule is laid down, " that the most nat- “ ural and genuine way of construing a statute is, to con- " strue one part by another part of the'same statute.” In various other sections of the same statute, when the act may be fully and effectually performed by a single individual, the legislature have attached a penalty to it, though no other one participated with him in the performance. This plainly shows they did not intend to make this offence penal, unless more than one was concerned in the commission. The motive of the legislature in impeding amusement and instruction to the people does not appear ; and, as there is no preamble we cannot conjecture whether they had the morals of the people in view, or designed to regulate the currency or exchanges. If the latter, it is obvious that a single teacher of elocution, like the respondent, would do little damage to the treasury, while a complete travelling theatre might create a suspension. The one then would be a proper subject of prohibition ; the other not.</p> <p>But, to construe the statute so as to make the facts there charged, an offence under it, the court must dispense with another important rule, which ought always to be observed, const,.u¡ng statutes, to wit: that penal statutes are construed strictly. In Plowden 17, Regina v. Togassa, 6 Bac. Ab. 390, the rule which is most peculiarly applicable to this case, is laid down thus — " The rules of the common law ‘ will not suffer the general words of a statute to be restrain- ‘ ed to the prejudice of a person upon whom a penalty is ' inflicted. But there are a multitude of cases to show, that ‘ the general words of a statute ought to be restrained, in ' favor of such person.”</p> <p>I. The expression in the statute — " Any company of players or persons whatever” — evidently means a company or a person, and not company of players or company of persons. That is, if a company of players, or if an individual, shall exhibit theatrical shows, &c. they shall suffer the penalty of the statute — the word persons, by construction, meaning the same as person. Hence all the counts in the indictment are sufficient in alleging that the respondent exhibited theatrical shows.</p> <p>2. The language of the statute is the most concise possible. It consists of words most ordinarily used ; and it would have been unnecessary to have used any more or other words. The framers adopted a correct rule in using as few words as possible to express their intention.</p> <p>3. To connect the word company with the word person would be a repetition, for the word company refers to persons when used in connection with the word players. A company of players is nothing more, of course, than a company of persons; and if the statute was designed only to punish those persons who were connected with companies, then the expression company of players would have been sufficient. But the framers of the statute, after they had used the expression " company of players,” saw it would not comprehend those individuals who might exhibit theatrical shows, and they added the common expression, " or persons whatever ; ” which in fact is the same as if they had said, any person or persons whatever.</p> <p>4. The expression, " each person so exhibiting,” in the last part of the section, further supports the construction contended for. The expression, “ each person, ” refers to individuals who exhibit, who are not connected with companies, as well as those that are.</p> <p>5. The framers of the statute must have had in their . , minds those individuals who exhibit theatrical plays, who were not connected with companies, as well as those who were. It would be contrary to reason and common sense to conclude otherwise ; and having in their minds both classes of persons, they have most evidently comprehended both in the statute.</p> <p>6. Though penal statutes should be construed strictly, yet they should not be construed so strictly as to defeat the obvious intention of the legislature. United States v. Wiltbergen, 5 Wheaton’s R. 76.</p>

Trespass for taking a cow. Plea, not guilty. Issue to the court.

This was an action on a jail bond, given upon a commitment of the defendant, Briggs, on an execution issued on a judgment in favor of the plaintiffs against him, rendered in March, 1840. The defendants pleaded in bar, as to the sum of $48.18, that on the 17th of July 1838, the defen- dant, Briggs, paid to the plaintiffs the said sum of $48.18, parcel of the debt in the plaintiff’s declaration mentioned, which was accepted by the plaintiffs.

This was an action of book account. Judgment to account was rendered in the county court, and auditors appointed; who reported, “That on the 23d day of May, 1842, ‘ the plaintiffs and their attorney, D. A. Smalley, appeared, ‘ and the defendant’s attorney, Mr. Stansbury, also appeared, * and moved a continuance, on the ground that the defend-c ant was out of the state at the time of the service of the ‘ rule, &c. But as it was not made to appear by any posi- ‘ live proof,…

The case was submitted to the county court upon the following statement, agreed upon by the parties, to wit:— The plaintiff’s contend that Isaac Sheldon, the father of the pauper, was, previous to the year 1807, married to one Lucy Kibby, and that he was divorced from her by the supreme court, at their term in Washington county, in February, 1816.

This was an action of trespass in three counts, for breaking, and entering, the dwelling house of the plaintiff; to the last of which the defendant pleaded in bar, a justification under a search… Held: after a thorough review of all the authorities, that it was a good justification. The last case is identical with this. 3. There is another view of the case, arising out of the cases above cited, which is conclusive against the plaintiff’s action.

This was an action of assumpsit for work and labor done by plaintiff as attorney for the defendant. Plea, general issue ; and trial by jury. Held: is State v. Babcock, 1 Conn. 401. That was a capital case, decided without argument or reference to any authority to sustain it; and it is directly opposed to all previous decisions upon the question in that state. Gilbert v. Rid, Kirby, 184 ; Sellick v. S. H. Turnpike Co. 13 Con. 459.

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

This was an appeal from a decree of the chancellor, dismissing the orator’s bill. The defendants severally answered, and the answers, were traversed.

This was an appeal taken by the defendants from a decree of foreclosure against' the defendant, Marshall, upon a mortgage executed by him to the orator, on the 6th of April, 1833, to secure the payment of a note of hand for the sum of $300, payable in five years from that date, and against the defendants, Hodges and Briggs, as subsequent grantees of the same premises.

This was an appeal from a decree of the court of chancery. It appeared from the bill and answer, that the orator, on the 17th of November, 1835, conveyed his farm to his son, Heman Deveraux, and took back a lease of the same, securing to himself and his wife, the possession and use thereof during their natural lives ; that, in consideration of said conveyance, the said Heman executed a bond without surety, to the orator, conditioned for the support of himself and his wife,…

<p> (In Chancery.) </p> <p>The right of a defendant in chancery to have his answer taken as evidence, is co-extensive with his obligation to answer.</p> <p>When defendant, in answer to a bill, set forth a certain proposition in writing, made by him, and then stated conversations and facts to obviate and avoid the effects of the same, such conversations, &e., must be proved.</p> <p>A court -of chancery will open a decree of foreclosure when the failure of the mortgagor to pay, according to the decree, was not through his negligence or default, but in consequence of propositions of settlement and payment, to be carried into effect after the time of payment had expired, and the failure to .perform was on the part of the mortgagee.</p> <p>While a bill is pending to be relieved from the forfeiture for not paying the first instalment, the failure of the mortgagor to pay a seeond instalment, falling due while the bill is pending, is no obstacle to his obtaining relief,</p>

This was an appeal from a decree of the court of chancery, dismissing the orator’s bill. The bill was brought to compel an account. The bill was answered, the answer was traversed, and testimony taken.

<p> (In Chancery.) </p> <p>>r must stand or fall upon the case made by his bill. The answer defendant cannot aid the bill, nor can the prayer for a specific reough, upon different allegations, the orator might be entitled to ef prayed for. The orat of .the lief, tb the rel</p>

<p> (In Chancery.) </p> <p>A witness may be compelled to give testimony, the tendency of which may be to subject him to pecuniary loss.</p> <p>Payments made under an usurious contract, to an amount within that of the debt and legal interest, are to be treated as payments, generally, and in the ease of a bill to foreclose a mortgage, may be insisted on by way of answer.</p> <p>Practice. An orator, claiming as assignee of a mortgagee, cannot require a defendant to bring a cross bill for the purpose of joining the mortgagee. If that is necessary for the security of the assignee, he should see to it in the progress of the cause, and cannot take advantage of his own neglect.</p> <p>When a decree is reversed on appeal by defendant, and the cause is remanded, with directions to pass an ultimate decree for orator for a diminished sum, the chancellor will be directed to deduct from orator’s costs, the defendant’s costs in the court above.</p>

This was an action of trespass for breaking and entering a certain rrieeting-house in Bakersfield. Plea not guilty, and trial by jury.

<p>Trover for part of a mow of wheat. Plea, not guilty, and trial by jury.</p> <p>On the trial in the county court it appeared that, on the 7th of January, 1841, the defendant took the wheat in question, as an officer, by virtue of a legal process against one Darius Heflon, — that said wheat was grown by said Heflon upon the farm of one Cynthia Russell, under a contract between them, that Heflon should carry on said farm for one year from the spring of 1840, and have half the crops raised thereon, — that Heflon lived in one house on said farm and the said Cynthia in another, — that, previous to the 22d of August, 1840, the plaintiff became bail, on an appeal for said Heflon, in consequence of which he became fixed with a liability for about $30, which he subsequently paid, — that the said Cynthia came into an engagement to indemnify the plaintiff on account , of said liability, — that, in consideration thereof, Heflon, on the said 22d of August, executed a writing to said Cynthia, therein declaring that he turned out and delivered to her the half of the crops then growing on said farm, belonging to him, to be taken and kept by her as security against said liability to the plaintiff — reserving to himself a right to thresh out four bushels of said grain for his own use, — and that said wheat was by the said Heflon harvested and put into the barn of the said Cynthia.</p> <p>It also appeared that, soon after receiving said writing from Heflon, the said Cynthia intermarried with one Daniel Herrick, who, thereafter, lived with her on said fan»; — that difficulties arising between Herrick and wife, and Heflon, upon mutual claims connected with the occupancy and carrying on of said farm, by Heflon, the matters were submitted to arbitrators, who awarded the payment of a certain sum to Heflon and that he should be allowed to remain in the house occupied by him upon the farm, until April, 1841, and have his firewood, — and that he did so remain; but whether he did any thing further in pursuance of said contract relative to carrying on the farm did not appear.</p> <p>It further appeared that, on the 14th of December, 1840, Herrick executed a writing to the plaintiff, whereby, in consideration that the plaintiff discharged the indemnity so given him by said Cynthia, he, Herrick, assigned to the plaintiff all his right to said crops in virtue of said writing executed to the said Cynthia by Heflon — of which assignment it did not appear that Heflon had any notice.</p> <p>It further appeared that the defendant sold said wheat upon execution, after advertising the same but thirteen days.</p> <p>The defendant thereupon requested the court to charge the jury that the turning out and delivery, as security, by Heflon to Cynthia Russell did not authorize her to assign her interest in the property to any other person, and, consequently, the assignment by Herrick to the plaintiff was void, and conveyed to the plaintiff no interest in the wheat, and therefore he could not sustain the suit. But the court charged the jury that the assignment from Herrick to the plaintiff did convey an interest to him, so that he could sustain the action.</p> <p>The defendant also requested the court to charge the jury that if they believed the facts above stated, the defendant was entitled to recover on the ground that the turning out of the wheat from Heflon was fraudulent in law, as against creditors, as there had been no change of possession. But the court declined so to charge the jury.</p> <p>The defendant further requested the court to charge the jury that, as Heflon still owned an undivided share of the wheat, to wit, four bushels, the officer had a right to take the whole into his possession; and that the plaintiff could not, therefore, recover in this action. But the court refused so to charge, but instructed the jury to deduct the four bushels which Heflon had the right to thresh for his own use.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p> <p>The bill of sale from Heflon to Cynthia Russell was not assignable, without the consent of Heflon. It was not a security for a debt, and Herrick’s assignment could not create any interest in the plaintiff, or any other person, until Herrick had been damnified. This had not happened at the time of the assignment, nor at the commencement of this suit. 2 Kent, 641-2; 4 Kent, 138. The property was pledged, and possession was essential to the lien. 2 Kent, 637.</p> <p>The plaintiff cannot object to the defect in the notice given by the officer on the sale of the property, as no person but the party to the execution could take advantage of this irregularity. Barnes v. Barnes, 6 Vt. R. 394.</p> <p>Heflon sowed, and raised the grain on shares, and harvested it, put it into the bam of which he had a lease, and consequently the exclusive possession; nor does it appear that any other person ever had the possession of the property. While it was thus situated it was attached by the creditor of Heflon.</p> <p>Neither the plaintiff nor Herrick, nor any other person for them, had taken possession of the wheat. It remained where it had been, after it was harvested. Under these circumstances the sale was fraudulent, and the property was liable to be attached by Heflon’s creditors. Beattee v. Robin, 2 Vt. R. 181; Weeks v. Wead, 2 Aik. R. 64. Where personal property is mortgaged, the possession must accompany and follow the sale or it will be void against creditors.</p> <p>The arbitration cannot affect Heflon’s possession, as that subject was not submitted to the arbitrators. If they had decided that he should give up'the possession, he would not have been bound to obey, because that question was not submitted to them. Nor does it appear that he surrendered the possession, but he remained on the farm as usual.</p> <p>The defendant has raised three questions in this case. .</p> <p>I. That the transfer of the property in question from Herrick to the plaintiff did not convey such a title to the plaintiff as would enable him to maintain this action.</p> <p>The interest might be transferred, subject to the rights of Heflon. Allen v. Edgerton, 3 Vt. R. 442; 2 Kent’s Com. 579, and cases there cited ; Montague on Lien, 24.</p> <p>Had the property been pledged for money, and the money not paid at the time specified, Herrick could have sold the property, Montague on Lien, 242. This pledge stands on a similar footing. If Herrick had paid the money, he could have sold the property and indemnified himself out of the sales. He could, therefore, transfer his lien in discharge of his liability.</p> <p>Though the property was turned out to Cynthia Russell, who was back bail, yet the plaintiff had an equitable lien upon it, and had she been insolvent the court of chancery would have enforced that lien and ordered an assignment of the property to the plaintiff. Herrick could well do what the court of equity would order done.</p> <p>II. The defendant contends that the transfer was a fraud in law against creditors, as there was no change of possession.</p> <p>The contract to carry on the farm upon shares, gave Heflon no right to the possession of the buildings ; and his right to the barn would only' be implied from the necessity of using it to secure the crops. Suppose he had sold hi$ share of the crops, and the purchaser had taken them away as fast as they were cut, and he had put only Cynthia Russell’s part into the barn, could Heflon, in that case, be said to be in possession of the barn ? Heflon conveyed his share of the crops to C. Russell, and when in the barn, the whole belonged to her, and she must be taken to be in possession. It does not appear from the case that Heflon owned any thing, either in, or about, the barn, or had any right there, except a right to thresh out four bushels of wheat; and this could not give him possession of the barn.</p> <p>The agreement to carry on the farm on shares, made between the said Cynthia and Heflon, was terminated by the arbitration, which was before the attachment; and if Heflon ever had any possession, it had been ended by the arbitration, and Herrick was in possession of the property before it was attached by the officer.</p> <p>In order to take advantage of a fraud in, law, the officer must show his proceedings to have been legal; and this the defendant has not done, as he advertised the property only thirteen days.</p> <p>III. The defendant contends that Heflon owned an undivided share of the wheat, and that the officer had a right to take the whole into his possession. The right that Heflon reserved to himself to thresh out four bushels of wheat did not make him and Cynthia Russell tenants in common. He turned out the whole, and his reservation did not vest any thing in him, unless he chose to exercise the right of threshing out the four bushels. If he did not, Cynthia Russell could hold the whole, and the creditors could not take it without paying off her lien, and then they could take the whole. If the officer took only the interest of Heflon, he took merely the right to thresh out four bushels of the wheat. The officer proceeded to sell the whole, and this made him a trespasser, even though Heflon might have been a tenant in common, and the officer had a right to remove the whole.</p> <p>The case shows that Heflon had transferred all the grain growing on the farm, reserving only this right to four bushels, and the defendant did not show that Heflon had any other grain. This four bushels was, then, exempt from attachment by the statute, and the officer was a trespasser, as to Heflon, in taking it.</p>

Ejectment for a tract of land in Highgate. Plea not guilty, and trial by the court.

This was an action of book account, originally brought by the intestate, before a justice of the peace, from whose decision there was an appeal to the county court, where a judgment to account was rendered, and an auditor appointed, who reported as follows : “ The plaintiff presented the account, which is annexed to £ this report, (marked plaintiff’s account,) and the original £ book of Joseph Beeman, deceased, on which the charges ‘ were made by the said Beeman.

<p>A town-meeting warned on the 1st day, and holden on the 12th day, of the same month, is irregular, and its proceedings are not binding on the town.</p> <p>A subsequent treating of such meeting as valid, either by the town officers or by any portion of the inhabitants of the town, will not be sufficient •to irati-fy the proceedings of the meeti ng on the part of the town.</p> <p>Towns cannot be made liable for the expense of building a road, by subsequently repairing the same, and suffering the public to use it as a highway.</p>

This was an action of account, brought before a justice of the peace, in which the plaintiff charged the defendant as bailiff and receiver, alleging that, from the 24th of March to the 18th of November, 1841, they were tenants in common of a certain farm, under an agreement by which the plaintiff was to furnish a team, and perform the labor necessary to cultivate said farm, and the parties were to share equally the produce and profits thereof, and pay equal shares of the…

This was an action on the case, in which the plaintiff alleged that the defendant fraudulently assumed to have authority to convey to the plaintiff a certain lot of land, with the usual covenants, and did convey to the plaintiff said land, as the attorney of Cadwallader and Astley, and covenanted, for and in behalf of said Cadwallader and Astley, in their names, and as their attorney, that they were well seized of the premises, and that they would warrant and defend the.…

This was an action of trespass, in two counts, for seizing and conveying away, at Champlain, in the state of New York, on the 10th of November, 1838, a sloop, called the Gen. McComb, and also for seizing, taking, and carrying away, on the 12th of said November, certain arms and munitions of war, found on board of the same. The defendant pleaded the general issue ; and also three pleas in bar of the action.

<p>The judgements of courts martial are conclusive, like tliqse of any other courts, unless some defect in regard to their jurisdiction is shown.</p>

This was a quitam action, to recover a penalty, for the fraudulent conveyance of real estate, in which the plaintiff declared, that, on the 12th day of March, 1841, one Jonathan Goodwin being indebted to the plaintiff, in the sum of $475.05, and being seized, in right of his wife, Caroline Goodwin, of three parcels of land, of the value of $2,500, did, in conjunction with his wife, and with intent to defraud the plaintiff of his said debt, convey said parcels of land to the…

<p>A sheriff is liable for taking insufficient bail on mesne process, and can only justify by showing that the bail was amply sufficient.when taken. An apparent sufficiency will not justify him.</p> <p>Quere — Whether an officer is liable for omitting to make a return of nulla bona.</p>

<p>Audita querela, to set aside the judgment of a justice of the peace rendered on the 12th of September, 1840. On the trial in the county court, it appeared that the writ in the original action was served by attachment of property, Pike the defendant, being out of the .state; and that the court was set at the justice’s house, on the 25th of July, and the cause continued from time to time, until the 22d of August, for notice to the defendant. ' On that day, as .appeared from the record of the justice, neither of the parties appeared, and he took no notice of the suit, until the day following, when, at the special instance of Hill, the plaintiff, he ordered the cause to be continued to the 12th September, at which time judgment was rendered against Pike, by default.</p> <p>The record of the justice having been admitted, the defendant offered to prove, by parol, that said record was false, for that he did appear before said justice on the said 22d of August, and that said cause was continued by said justice on that day. This evidence was objected to, and excluded by the court; and thereupon judgement was rendered for the plaintiff. The defendant excepted.</p>

This was the case, originally, of a bill brought by the orator against the defendant, in which he alleged that in the year 1832, he conveyed to the defendant lots No. 49, 50, and 51, in the second range of lots in the town of Alburgh, and that the defendant at the same time executed to the orator, a bond, with a condition that he would reconvey the said lots to the orator, upon his paying the defendant the just charges he then had, or might thereafter have, as an attorney…

This was an appeal from an order of removal by the town of Starksboro to the town of Hinesburgh, of one Lyman Bostwick and Rhoda Bostwick, his wife, made on the day of May, A. D. 1840. Plea, denying the settlement of the pauper in Hinesburgh, and trial by jury.

This was an action of trover for a traverse sleigh, a lumber sleigh, and other articles of property. The action was originally brought before a justice of the peace, by whose record it appears that, after the appearance of the parties and a continuance of the cause, and the impannelling of a jury for the trial of it, the defendant plead in abatement, the non joinder, as plaintiffs, of two other individuals, as joint owners of the property in question.

This was an action of assumpsit, brought to the county court by appeal, in which the plaintiffs declared in two counts upon a note of hand, of which the following is a literal copy. “For value received, we jointly and severly promis to ‘ pay J. & Wainwright or order, thirty eight dollars and 1 fifty four cents worth cattle in one from the first of Oct. next, ‘ cattle over eight'years, bulls and stags exemt, or merchble ‘ grain by the firs of January following, with use,…

This was an action of trespass, in four counts, for breaks ing and entering the plaintiff’s close, on the 5th of February, 1840, and taking away a quantity of poles, and assaulting, beating and wounding the plaintiff. Plea not guilty,- with notice of special matter.

This was an action, on the case, for the false and fraudulent representations of defendant, to plaintiffs, on a sale of goods, by them, to one Hiram Ferris, in October, 1839, in relation to the circumstances of said Ferris. The declaration contained three counts on the false and fraudulent representations, to which was added a count in trover, for the same goods.

These were actions of slander, — the first in a declaration of four counts, charging the defendant with having spoken the words following. “ Smith and his wife have both stolen my property, and I can prove it.” “ I have been down to get my lightning rods, before Smith steals them, for he has stole and will steal again.” “You (Smith) have stole from me — you and your wife both.” “ Smith and his wife, have stole, and I can prove it, if Horace Loomis will tell the truth.” The…

Assumpsit against the principal debtor, on a joint and several note for $65, dated January 5, 1840, and payable January 1, 1841, signed by the said principal debtor, and one Marcus C. Woodworth.

This was An appeal from a decree of the court of chancery. The oratrix, Harriett S. Foot, in her bill, set forth and charged, in substance, that previous to the 26th of February, 1836, the said Joseph C. Ketchum and Calvin A. Shaw were copartners in trade under the firm of Ketchum & Shaw, and that mutual accounts current existed between the said Ketchum & Shaw and the oratrix, and that the oratrix had, at the same time, a large account against the said Ketchum; that on the…

This was an appeal from a decree of the court of chancery, dismissing the orators’ bill.

This was an indictment under the statute for obtaining goods by false pretences, with intent to defraud, &c. There was a demurrer to the indictment, which was overruled. This was followed by a plea of not guilty, a trial by jury and a verdict of guilty. To a decision of the court upon a question of variance, and the charge to the jury, and also to the decision overruling the demurrer, the respondent excepted.

This was an indictment for not repairing a road. The road in question was a part of the Green Mountain Turnpike. Plea not guilty, and trial by jury.

This was an indictment as follows, for selling spirituous liquors by small measure. “ State oe Vermont, Rutland County, ss. ‘ Be it remembered that, at a term of the county court ‘begun and holden at Rutland, within and for the county of ‘ Rutland aforesaid, on the second Tuesday of September, in ‘ the year of our Lord one thousand eight hundred and forty, ‘ the grand jurors, within and for the body of the county of ‘ Rutland aforesaid, now here in court duly impannelled and…

This was an indictment for selling spirituous liquors by small measure, which charged, — “ That Benjamin Whitney, ‘of Castleton in the county of Rutland aforesaid, on the first e day of August, in the year of our Lord, one thousand * eight hundred and forty two, at his, the said Benjamin ‘Whitney’s dwelling house in-Castleton aforesaid, sell and ‘ dispose of, to divers persons, foreign and domestic distill— ‘ ed spirituous liquors, in a less quantity than one pint, to ‘ wit,…

This was an action on book. There was a judgment to account, and reference to an auditor.

This was a writ of error brought to reverse a judgment rendered by the county court, in favor of the defendant in error against the plaintiff in error, in an action for assault and battery.

This was an action of assumpsit founded on the following receipt: “ Received of D. Kelly, constable of Dauby, the following £ described property, to wit, fifteen cows of the value of two £ hundred and forty dollars, also eight yearlings of the value c of forty dollars, and seven calves at three dollars and fifty £ cents per head, which property we are to return on demand, c or pay said Kelly the aforesaid sums, at our choice, when £ called for, after judgments are recovered…

This was an action of covenant broken, brought upon the covenant of seizin contained in a deed executed by John Jackson, the intestate, to the plaintiffs, on the 10th of December, 1829, conveying-to the plaintiffs, for the consideration of $1800, four hundred acres of land in Hydepark in ^ r this Slate. The defendant pleaded non est factum, and accord and satisfaction. The pleas were traversed, and issue joined to the country.

This was an action on tbe case against the defendant, who was one of the selectmen of the town of Benson, for refusing to administer to the plaintiff the oath provided by the statute, in the case of persons aggrieved by reason of the assessment of money on hand, debts due, &c., by the listers, and for refusing to receive and return to the town clerk the plaintiff’s disclosure, under the statute, by reason of which he was unjustly taxed, &c. Plea, not guilty,'and trial by…

This was an appeal from a decree of the court of probate, accepting the return of commissioners appointed to divide the estate of Stephen Nichols, deceased.

This was an action of book account. Judgment to account was rendered, and auditors were appointed. The auditors reported that the parties had appeared before them, and the plaintiff presented an account against the defendant amounting to $1551.24, which they set forth in their report, and which embraced 762¿- cords of wood. They also reported that the defendants presented an account against the plaintiff amounting to $1221.81, which was not objected to.

Ejectment for seventy-five acres of land in Rutland. Plea, not guilty. Issue to the court.

. This was an action of trespass, brought to recover the value of certain goods attached by the defendant, as sheriff, at the suit of Hunter, Kellogg & Co. on the 17th day of February, 1840, as the property of Caleb B. Hall. Plea not guilty, and issue to the country. .

From the bill and answers, in this case, it appeared that, for a long time previous to his decease in 1832, the intestate had been settled as a minister over the Congregational Society in Middletown, and that, at the time of his decease, the society was indebted to him in a large amount, for his services ; that, upon the presentatation to the commissioners on his estate, of a claim of the society against him, as their treasurer, his claim was presented in off-set, and a…

This was the case of a bill brought to redeem certain premises, to which the defendants severally made answer; and upon a hearing on the bill and answers there was a decree, from which the defendants, Harry W. Merrill and Harry Hitchcock appealed. The facts in the case sufficiently appear in the opinion of the court. After argument by E. L. Ormsbee for the orator, and i?. JR. Thrall, for defendants, the opinion of the court was delivered by

This was the case of an appeal from a decree of the court of chancery. There was an appearance by the defendant in that court, but he did not make answer to the bill, and it was taken as confessed; and it was referred to a master to take an account.

This was an appeal from a decree of the court of chancery dismissing the orator’s bill.

This was an action for false imprisonment, and was submitted to the county court, upon the following case stated by the agreement of parties : “ The imprisonment of the plaintiff by the defendant is admitted.

This was an appeal from an order of removal, from Manchester to Springfield, of Martha M. Sheldon and her seven minor children, and came on to be tried on issue joined to the defendant’s plea, that… Held: that both legitimate and illegitimate minor children acquired a settlement by one year’s residence,'unless warned. 1 N. H. 260, 264. III. The warning is defective.

This was an action of debt on recognizance, commenced before a justice of the peace on the 7th of June, 1842, and brought by appeal to the county court.

Assumpsit for goods sold and delivered. Plea, general issue.

This case was brought by appeal from a justice of the peace. The declaration, in the original writ, was in a plea of “ trespass,” in which the plaintiff proceeded to allege that the defendant was possessed of a cow accustomed, and known by her to be accustomed, to hook, which she suffered to go at large, and which, while thus at large, hooked the plaintiff’s horse so that he died.

This was an action brought against the defendant, sheriff of Windham county, for the default of Eli B. Russell, his deputy, in not serving, collecting, and returning an execution in favor of the plaintiffs against one Daniel Upton, which had been put into his hands for that purpose. Plea, not guilty. Issue to the country.

This was an action of book account. There was a judgment to account, and reference to an auditor. The auditor reported that the plaintiff exhibited the following account. Ephraim Ingraham, jr., To Oliver P. Newell, Dr. January 1, to July 1, 1841.

Indictment for selling liquor without license. The indictment charged, that the respondents, on the 12th day of September, 1841, not having a license, ■ &c., “ did deal in the £ selling of domestic distilled spirituous Jiqu.ors,' jn a less 1 quantity, at one time, than twenty gallons, and did, then f and there, .sell, to one John Gray, one pint of alcohol, being f domestic distilled spirituous liquor,” &c. Plea, not guilty.

This was an action of book account, in which there was a judgment to account, and reference to an auditor. The auditor reported that, having notified the parties who appeared before him,— He £t proceeded to the examination of the accounts of the 4 plaintiffs.

This was a complaint for bastardy, carried on against the defendant by the overseers of the poor of the town of Guilford, under the statute — the said overseers having undertaken to control and manage said suit, and signed a certificate agreeably to the 13th section of the statute, to indemnify the complainant from the cost of said suit, and the support of the bastard child.

This was an action of trespass on the case, in which the plaintiffs declared, that a certain bridge, on a public highway in the town of Jamaica, was, on a certain day, “ insufficient c and out of repair, in this, that the flooring or covering of £ said bridge was decayed and ruinous, and that the poles, ‘ logs, slabs, or planks, forming the same, were rotten and £ decayed, and in that said bridge was not suitably and prop- £ erly supported by string pieces, but that the same…

This was an action of book account, appealed from a justice of the peace, in which there was a judgment to account, in the county court, and a reference to an auditor. The auditor reported that the parties having appeared before him, — “ The plaintiff exhibited his account against the defendant, of which the following is a copy : 1837.

This was an appeal from a decree of the court of chancery dismissing,the orator’s bill. - The orator, in his bill, set forth and charged, in substance, that, on the 1st of January, 1836, one Lewis Robbins, a son-in-law of the orator, being the owner of a certain piece of land in Westminster, on which the orator resided, of the value of $1000, and desirous to assist the orator to have a home, and being, moreover, under a necessity to dispose of said premises, proposed to sell…

This was an action of trover for three hundred and fifty sheep. Plea, not guilty. Issue to the’court. On trial, the plaintiff read in evidence the following receipt and endorsement thereon : “ Hartford, Nov. 14,1839. “ Received of Moses Montague, deputy sheriff, three hundred and fifty sheep, of the value , of six hundred dollars, which we agree to redeliver on demand..

This was an action of assumpsit, for money had and received. Plea, non assumpsit, and issue to the court. By consent of the parties, the case was referred to a commissioner, to make report of facts.

This was an action of book account,- appealed from á justice of the peace. Upon its entry in the county court, a judgment to account was rendered, and an auditor appointed. Held: that a discharge of the husband under the insolvent law, discharges the wife, and that, during coverture, the debt is that of the husband. During coverture, the identity of the wife is so far merged in that of the husband that he acts for her in respect to her liabilities.

This was an action of assumpsit, for money had and received. Plea, general issue, and trial by jury.

This was an action of covenant broken, for non-payment of rent, in which the plaintiff declared, that on the 13th of February, 1833, he, with his wife, Rebecca Pingrey, executed to Charles W. Watkins, his heirs and assigns, for and during the natural life of said Rebecca, a lease of “ all ‘ that certain part of the real estate of Elias Watkins, senior, ‘ late of Chester, deceased, that was set off to said Rebecca, ‘ as widow of the deceased, as her thirds, lying and being £…

<p>This was an action of book account, appealed from a justice of the peace, in which there was a judgment to account, and reference to an auditor.</p> <p>The auditor reported that the plaintiff exhibited an account against the defendant, of $ 15.90, which was conceded, by. the defendant, to be the balance due from him to the plaintiff, to balance book accounts between them, at the commencement of the plaintiff’s action, on the 9th of Jan-nary, 184'©; that, before the commencement of the action, to wit, on the 4th of said January, Abner Field, Sylvester Burke, and Josiah R. Barnes, commenced their action against the plaintiff, as principal debtor, and the defendant was summoned as his trustee ; and that, on the 21st of January, 1840, judgment was rendered against the plaintiff, for $17.30 debt, and $4.18 cost, and the defendant was adjudged trustee of the plaintiff, for the aforesaid sum of $15.90, which the defendant subsequently paid.</p> <p>The auditor further reported, that it appeared before him, that in the fore part of December, 1839, the plaintiff sold the said account against the defendant, to Henry H. Spafford, to whom he was indebted to an amount exceeding the amount of said account; that, within three days after said sale, the plaintiff delivered a transcript of said account to said Spafford ; that Job Spafford was called to witness the sale of the account; that the plaintiff did not, at that time, give, nor had he subsequently given, any written order on the defendant to pay said account to said Henry H. Spafford ; that the said Henry H. was to credit the plaintiff the said $15.90, but it did not appear whether it had been credited ; that said Henry H. Spafford gave notice to the defendant of the purchase of said account, before the service of said trustee process, though not until the plaintiff and said Henry H. had been informed that said process was in the hands of an officer ; and that the defendant in this suit attended the trial of said trustee action and made defence.</p> <p>It appeared that the present suit was commenced on the 9th day of January, 1840, by the said Henry H. Spafford, for his benefit — the plaintiff, as appeared by his testimony before the auditor, having no interest therein — and that judgment was rendered against the defendant in said suit, and an appeal taken by the defendant, on the 18th of said January, before the rendition of judgment in said trustee process. ></p> <p>The auditor reported in the alternative, submitting to the court the questions whether a sale of a book account by parol is valid, and whether a judgment in favor of a creditor against a debtor is valid, after the commencement of a trustee action against' against him.</p> <p>Upon this report the court rendered a judgment for the defendant to recover his costs ; to which the plaintiff e:<¡> cepted.</p> <p>The question raised by the exceptions is, whether a book debt can be assigned by parol and be protected in the hands of the assignee, after notice, against a trustee process.</p> <p>1. It is settled that a chose in action, not negotiable, if in writing, may be assigned by delivery only without a written assignment, and will be protected in the hands of the assignee. Neivell v. Adams, 1 D. Chip. 346; Strong v. Strong, 2 Aik. 373; Brown v. Marine Bank, 11 Mass. 153; Jones v. Witter, 13 do. 304.</p> <p>II. An assignment of a sum of money due on a judgment, or a balance due on book account, may be assigned in writing, and be protected. Dix v. Cobb, 4 Mass. 508 ; Owmmings v. Fullam, 13 Vt. R. 434.</p> <p>III. This rule is adopted upon the principle that the law Will regard the trust, and protect all equitable rights against the trustee process. If there has been an assignment of a book debt, by parol, as between the assignor and assignee, the transfer is sufficient; and if the assignor should collect the avails, he would be accountable, in equity, to the assignee. If so, after notice of such equitable right, the debtor would hold the effects in his hands, as trustee of the assignee — as much as he would in case of the assignment of a note not negotiable. The parties all stand in the same relation as if the account had been assigned in writing.</p> <p>If it be said that the evidence of such transfer is not equally available to the debtor, we answer that the evidence would, perhaps, be different, but in the same degree, and the law recognizes no such distinction. To adopt any other rule would destroy all equitable rights, the foundation of which might rest in parol assignments. Crocker v. Whitney, 10 Mass. 323 ; Patlock v. Harris, 3 D. & E. 180 ; Amidown v. Wheelock, 8 Pick. 470 ; 1 Swift’s Dig. 434.</p> <p>The defendant contends, that, having been adjudged trus-* tee of this plaintiff by a court of competent jurisdiction, and been compelled to pay the full amount of his indebtedness to the plaintiff, he is not liable to pay it again. The subject-matter has been adjudicated upon by a court of competent jurisdiction, which fixes the rights of the parties as conclusively as though it had passed to, and been settled by, this court. 17 Mass. R. 237 ; 1 Pick. 394, 435 ; 18 Mass. R. 459; Evarts v. Gove, 10 Vt. R. 161 ; Big. Dig. 464, and New York authorities cited. The first final judgment must fix the rights of the parties upon the whole subject-matter.</p> <p>But it is .denied that this claim has ever been legally assigned by the plaintiff to Harrison Spafford, in such a way, at least, as he can set it up against the trustee process. There was no writing- — no credit given by Harrison to the plaintiff — no application of the amount.</p> <p>It is, by many, supposed that a book account may be assigned by mere parol; but if that doctrine be correct, I have not been able to find it recognized in any decided case. What can be the evidence of the assignment ? How can the debtor know of the authority of the pretended assignee to receive it ? How can his receipt be a safe discharge ? Suppose a witness is called to a sale of a mere charge on book. The witness dies or removes, — where is the safety to the debtor ? It is true that Judge Swift, in his Digest, vol. I, page 434, says that bonds, policies of insurance, or book debts, may be assigned, but then adds — “ such assignments may be by endorsement in writing, or parol, as on sale and delivery, without writing.” The parol and delivery there spoken of, necessarily implies that it contains the written promise to pay. Judge Swift refers to no authority. In 4 Mass. R. 508, a case much like the present is found, in which stress is laid on the fact of a written assignment being served by copy on the defendant, both by the counsel who argued it, and the judge who gave the opinion.</p>

<p>This was an action of debt on judgment. The defendant pleaded two pleas in bar. The first was a plea of payment, which was traversed, and issue joined to the court. In the second plea, the defendant alleged that, after the rendition of the judgment declared on, to wit, on the 1st of January, 1839, in consideration that defendants would make and deliver at the shop of said Nathaniel, jr., winnowing-mills, to the amount, and of the value of, said judgment, one half in the course of the then current winter, and the other half in the course of the winter next following, the plaintiff promised that he would receive the same, in full payment and discharge of said judgment 3 and that, relying on said promise, they did make and deliver said mills, nine in number, at said shop, one half in each of said winters, to the full amount of said judgment — a part of which, viz. six, the plaintiff received, and the remainder he did not call for, though they were ready for him, at said shop. To this plea there was a demurrer.</p> <p>On trial of the issue to the court, the following facts appeared, to wit: that the plaintiff had a judgment against the defendants, who resided at Woodstock, and took out an execution thereon, and put it into the hands of an officer for collection ; that while in his hands the defendants proposed to pay it in winnowing-mills, at ten dollars each, to be made and delivered at said Woodstock, one half in the autumn of 1838, and the other half in the autumn of 1839, to which the plaintiff consented, and agreed so to receive his pay ; that in the autumn of 1838, the defendants delivered to the plaintiff, and the plaintiff received three win no wing-mills, and, therefor, made an endorsement of thirty dollars on the execution ; that, in the autumn of 1839, the plaintiff received from defendants three other mills, and endorsed the same on the execution ; that, in November, 1839, the plaintiff called at the defendants’ shop to procure the other mills, but did not find the defendants, and made no demand ; that, on the defendants’ return to the shop, they were informed, that the plaintiff had called; and that they then set apart for the plaintiff, three more mills in their shop, which had there ever after remained. Upon these facts, the court decided that the second plea in bar was insufficient, and that the defendants had not paid the plaintiff the amount of the judgment, as in the first plea alleged, and rendered judgment for the plaintiff, for the balance of the execution, after deducting the six mills by him received ¡ to which the defendants excepted.</p> <p>When the plaintiff had agreed to receive his pay in win* nowing-mills, and the defendants agreed to make and deliver them, and did make and deliver them at the place and within the times agreed on, and the plaintiff received two thirds of them, and the other third have, ever since, been there, where delivered, for him, he has no right to refuse it as payment, Both parties were bound by the contract. The three mills are the property of the plaintiff, and he has his pay as agreed, though he has not carried them away.</p> <p>The second plea in bar is sufficient, as a defence. The contract therein set forth expresses a good and valid eration, and a fulfilment on the part of the defendants, and the plaintiff received two thirds of the amount, and the rest was delivered according to contract. The decision in Bryant v. Gale, 5 Vt. R. 416, would be full in point to support this second plea, if the contract set up in the plea was under seal; and yet, stress is not laid upon the seal in that case, only as it implies a consideration. In our plea, a good and valid consideration is alleged, and no seal is needed for that purpose. The defendants’ promise to make and deliver the mills was a good consideration for the plaintiff’s promise to receive them in payment; and the plaintiff’s agreeing to receive them was a good consideration for the promise to deliver them — for a failure to perform which plaintiff might have maintained an action, ,</p> <p>If it be argued that this judgment was not, by the terms of the contract, to be discharged by the contract itself, without a fulfilment also, on the part of the defendants, just so was the case of Bryant v. Gale. In both cases alike, the original cause of action was not to be considered discharged, until a fulfilment on the part of the defendant or defendants. In both, alike, the defendants did all on their part to fulfil. In one case the plaintiff received two thirds of his pay. In the other case he refused to receive any part, and yet he was bhrred.</p> <p>If it should be argued, that the only remedy of the defendants would be to bring a suit upon the contract, and recover their reasonable damages, we answer, that the damages could be nothing less than the amount of the judgment, and the damage otherwise sustained by the plaintiff’s not applying the payment in satisfaction of the judgment. This circuity of action the law does not require, nor even admit. See Bryant v. Gale, On page 421.</p> <p>Was the evidence in the case, as found by the court, sufficient to sustain the plea of payment ? Nothing short of the accepting and actually receiving the full number of mills would be a payment of the judgment. The plaintiff was not bound to receive any mills on the judgment; and if he had received none, his agreement to receive them would furnish no defence to an action on the judgment; much less would it have operated as a payment of the judgment, though defendants had made them and set them apart for the plaintiffs. There was no consideration for the promise.</p> <p>The judgment, as a contract of the highest character, could not be satisfied or merged in a mere parol contract. Nothing short of the actual payment of it would satisfy it, or a discharge by an instrument of as high a character. The lower grade of contracts may be merged in the higher: but the higher never in the lower. 3 Bac. Ab. tit. Extinguishment, D; Cro. Jac. 649 & 650; 3 East. 251; 2 Johns. 341; 5 do. 70.</p> <p>The fact that plaintiff received a part of the mills, did not oblige him to receive the whole, especially as he received all that were offered to him, at the several times at which he received any.</p> <p>This, also, disposes of the second plea in bar. Our positions above being correct, that plea is clearly bad. It constitutes no defence to the action for the balance of the judgment. The plea does not allege the judgment satisfied by the agreement. 2 Johns. 340 ; 5 do. 70. It is not pleaded by way of accord and satisfaction ; and indeed the plea shows a want of satisfaction.</p> <p>This judgment, if satisfied at all, was satisfied by the agreement to take winnowing-mills, and was just as much satisfied before any mills were paid as after. But such is not the fact, as alleged in the plea.</p> <p>As a plea of accord, it is decidedly bad. Such a plea must show satisfaction by an actual receipt of the thing stipulated to be delivered. A tender of the same is insufficient. 1 Sw. Dig. 299; 1 Roll. Abr. tit. Account; 5 Co. 79, b; Cro. Eliz. 304; 1 Strange, 573 ; Bryant v. Gale, 5 Vt. R. 419.</p>

Scire facias against the defendant, as bail for one Ithiel S. Richardson, on two writs of attachment against him.

This was an action of trespass, for taking a bureau, brought by appeal from a justice of the peace.

This was an action of assumpsit on an award, appealed from a justice of the peace, in which the plaintiff declared that, certain differences having arisen between him and the defendant touching the sum of $50, which he alleged had been paid to the defendant by one Walker to the use of the plaintiff and one Wheeler, which sum the defendant contended he had paid to the plaintiff — the plaintiff and defendant had submitted themselves to the award of certain arbitrators, to be…

This was an action of book account, in which there was a judgment to account, and reference to an auditor.

This was an appeal from a decree of the court of chancery, in favor of the orator, upon a bill of foreclosure, in which the orator alleged, that the defendants, Moulton &> Hutchinson, on the 3rd day of September, 1835, by deed, under their hand and seal, in which they described themselves as “ sole proprietors and owners of all the shares of the Woodstock Manufacturing Company,” conveyed to the orator “a certain piece of land, lying and being in Wood- * stock, in the county…

This was an appeal from a decree of the court of chancery, dismissing the orators’ bill.

* - This was an action of debt on judgment, against the principal debtor, in which Jacob Kent, Jr., was summoned as trustee, who disclosed, in writing, that a suit having been pending for several terms in Orange county court, in trover, in favor of said Howard, against him, the same was referred, by agreement between them, to arbitrators, who awarded to Howard a certain sum, which was due, in virtue of the award, at the time of the service of the trustee process; that the…

Assumpsit on an award, in three counts. In the first count, the plaintiff declared that there had been an action of ejectment commenced by him, against the defendant, to recover the seizin and possession of a certain piece of land ; and that, for the settlement and determination thereof, the parties, on or about the 15th of June, 1840, made an agreement in writing to submit the same to the arbitrament and final determination of Enoch Hebard, Araunah Spear, and Avery Fitts,…

This was an action of ejectment for Lot No. 10, in the 3d division in Braintree. Held: by quit claim deed of the whole lot, from one owning one undivided fifth part of said lot, and that the other defendants were in possession under Hutchinson.

This was an action brought by appeal to the county court, in which the plaintiff declared that, on the 29th of November, 1836, the defendant executed and delivered to one Ezra Sanborn, his promissory note of that date, made payable to said Sanborn or bearer, and, on that day endorsed by said Sanborn to the plaintiff, of which the defendant on the same day had notice.

This was an action of assumpsit, on two notes of hand, executed more than six years before the commencement of the suit, payable on demand, to the intestate, and signed with the name of the firm of Burnham & Wardens,which consisted of D. R. Burnham, David Warden and the defendants. The defendants pleaded the general issue, which was joined to the court. They, also, pleaded the statute of limitations, to which the plaintiff replied a new promise, within six years.

This was an action originally commenced in the county court, against the defendant as principal debtor, on a promissory note, for the sum of $75.87, dated the 27th of April 1840, and against George W. Wardner as his trustee. The writ was served on the principal debtor by attaching his property in possession, and was entered at the December term, 1841, at which term said George W. Wardner made his disclosure, and judgment was rendered that he' was not trustee.

<p>This was an action of book account, appealed from a justice of the peace. There was a judgment to account and reference to an auditor.</p> <p>The auditor reported that the plaintiff exhibited an account against the defendant, as-follows,—</p> <p>“ On a settlement on book, January 28, 1841, $29.50</p> <p>To 8 tons of straw, 16.00</p> <p>To use of horse, and 18 acres of land, 25.00;</p> <p>and that it appeared before him, that the debit side of the plaintiff’s account, on said settlement, exceeded one hundred dollars.</p> <p>The auditor, also, reported, that the defendant exhibited an account against the plaintiff, amounting to $179, of dates anterior to said settlement; and he reported in the alternatives — submitting to the court, among other^questions, whether an action of book account could be sustained on a balance found due, on settlement. The court decided that the book action could be sustained for such balance, and rendered judgment for the plaintiff; to which decision the defendant excepted.</p> <p>The defendant, also, filed his motion to dismiss, for the cause that the debit side of the plaintiff’s account exceeded one hundred dollars; which motion was overruled by the court; to which the defendant, also, excepted.</p> <p>I. The action is on book, which involves a particular inquiry into all, and every, of the items of the accounts between the parties. In this case, no such inquiry was had, but the plaintiff relies, alone, upon a balance, found due on settlement, without showing the items on which the settlement was made. R. S. 219, 220.</p> <p>II. By the auditor’s report, it appears that the debit side of the plaintiff’s account was more than one hundred dollars, and, consequently, the justice had no jurisdiction. It also appears that the defendant’s account was nearly $200.</p> <p>III. Action on book will not lie on a mere balance, struck on settlement. R. S. 219, 220. 1. Because there is nothing for an auditor to do, in hearing, examining, and adjusting the ^accounts between the parties. R. S. 219, §3, 4. 2. Because, in this case, it is not true that the “ defendant has refused, and still does refuse, to settle and adjust the account of the plaintiff.” See form of declaration. 3. Because it would not be possible for the auditor to report the items of the plaintiff’s account, and his reasons for allowing and disallowing. 4. Because the only proper form of action on a settlement, is, insimul computassent, or indeleitatus assumpsit. 5. Because, the legislature never intended to g¡ve plaintiff a right to swear himself, to a settlement, to sustain a book action. Courts have permitted the defendant to testify to a settlement for the purpose of defeating the book action, but never the plaintiff, to sustain it..</p>

<p>This was an action brought by the- plaintiff, as endorsee of a promissory note of S. Downer & Co., dated October 10, 1838, and made payable to Horace W. Dana, or bearer, and by him, for value received, endorsed to the plaintiff on the 1st of May, 1840. Plea, general issue, and trial by jury.</p> <p>On the trial in the county court the plaintiff proved that the defendants composed the firm of S. Downer & Co.; that Wooster Downer, one of the defendants, executed the note, by affixing thereto the name of the firm, and delivered it to the said Dana, another of the defendants; and that the endorsement of the same was in the hand writing of Dana. On this evidence, the court charged the jury that the plaintiff was not entitled to recover. Verdict for defendants, and exception to the charge of the court, by the plaintiff.</p> <p>As this note was given in the usual form, for a good consideration, made by one legally competent to make and sign it as he did — -made and delivered to a person legally competent to receive the promise and enforce it and by him duly endorsed to the plaintiff, — the plaintiff insists that the note is not void, and that the charge of the court below was erroneous.</p> <p>The plaintiff is an innocent endorsee; and notes in the hands of such are never void, unless the consideration is money won at play, or when they are given on a usurious debt. 3 Kent's Com. p. 79. The equity of the case is with the plaintiff. By a recovery, the plaintiff obtains nothing to which he is not entitled, and the defendants part with nothing which they have a right to retain.</p> <p>The objection to the note is one exclusively of a technical character, growing out of . the remedy, and growing out of the rule that a party cannot sue himself; and it would seem that when the note is endorsed, the objection ceases to operate. This case is like that of a note made payable to one’s own order, upon which no action can be sustained, until it is endorsed, when it becomes a legal contract, which may be enforced against the maker, although he is both payer and payee. Pitcher v. Barrows, 17 Pick. 361; Chitty on Bills, 28, 8th Edition; Russell v. Swan, 16 Mass. 314; Burn-ham, v. Whittier, 5 N. H. Rep. 334; Parker v, Malcomher, 18 Pick. 505; Little v. Rogers, 1 Metcalf, 108; Nevinsjv. Townsend et. al., 1 Con. Rep. 5. (6 Conn, old series ;) Kinsley v, Robinson, 21 Pick. Rep. 327; Dwight et al. v. Scovil et al. 2 Day, 654; Smith v. Lusher, 8 Cow. 688.</p> <p>The note in question was dated October. 10, 1838, and not endorsed until about two years after; and being payable on demand, was uncurrent. The note being signed by the firm of which Dana, the payee, was a member, it will not be contended could have been sued in his name. That a suit may be sustained in the name of an endorsee, for a valuable consideration, on such a note, is shown by the Massachusetts authorities; but it is believed that the doctrine leads to fraud, and, as it never has been adopted here, it would be the safer policy to reject it entirely.</p> <p>But if the court hold that the suit can be sustained on this point, then we contend, that the plaintiff cannot recover, without proving a consideration. In this case no consideration was shown by the endorsee, and hence it is contended that he did not make a prima facie case, and the county court were right in directing a verdict for the defendants. Heath v. Sansom and Evans, 22 Com. Law. Rep. 78, and the authorities there cited.</p>

This was an action of book account. There was a judgment to account, and reference to an auditor.

This was an appeal from a decree of the court of chancery. The orators in their bill, set forth and charged, in substance, that, to secure the payment of• a note of hand, to Ephraim Lacy, of $306, on or before the 1st of' October, 1807, Raymond Chamberlain, on the 15th of September, 1806, mortgaged to said Lacy, among other lands in New-bury, one half of lot No. 2, one eighth of lot No. 1, and one eighth of lot No. 9, in Musquash Meadow in said Newbury j that said Raymond…

This was an appeal from a decree of the court of chancery, that the defendant execute and deliver to the orator a deed of quit claim, of a lot of land in Newbury, containing one hundred acres, being lot No. 55.

This was an action of book account, in which there was a judgment to account, and reference to an auditor.

This was an action of debt on jail bond, executed upon the commitment of the defendants, Pearce and Dwinnell, on an execution for the sum of $375.72 damages.

Ejectment for a lot of land in Roxbury, of which Ebenezer Parkhurst was original proprietor. Plea, general issue, and trial by jury, and verdict and judgment for plaintiff. On trial of the cause, the plaintiff offered the charter of the town, in which is the name of Ebenezer Parkhurst, and also other evidence, tending to show the plaintiff to be the same Ebenezer Parkhurst.

This was an action of assumpsit, commenced before a justice of the peace, on a promissory note for $16, dated April 1, 1835, and payable with interest, in which the plaintiff laid his damages at $25,… Held: that promissory notes exceeding $20, but endorsed below $20, were appealable. This virtually. decides the question. The amount of the note, as originally given, therefore, determines the jurisdiction. Boardman v. Harrington, 9 Vt. R. 151.

Two justices ordered the removal of one Mary Nary from Northfield (o Roxbury.

Trustee process against Dodge & Keith and C. Spalding, who were sued as trustees of James Houghton & Co. of Boston, in the state of Massachusetts.

This was an action of book account, commenced in February, 1840, in which there was a judgment to account, and reference to an auditor, who reported a balance due the plaintiff; which report was accepted by the court. The defendant then plead in off-set a certain judgment in his favor against the plaintiff, rendered in April, 1837, on which he alleged there remained due, the sum of $209.80.

Assumpsit in several counts, but the one on which the plaintiff relied, was as follows : — “Also, in a further plea of the case for that whereas, heretofore, to wit, on the 16th day of November, 1836, there was pending in the county court, then sitting at Montpelier, within and for the county of Washington, an action of assumpsit on an accountable receipt, in favor of John Campbell, jr., against Moses Peck, the present plaintiff, which said receipt, and the matters in…

This was an action of trespass, appealed from a justice of the peace to the county court. The defendant pleaded in •abatement the pendency, at the commencement of the present suit, of another suit for the same cause of action. The plea was traversed, and issue joined to the court.

This was an action of ejectment for about twenty acres of lot No. 11, in the 12th range in the town of Berlin. Plea, not guilty, and trial by the court. It was admitted, on trial, that the plaintiff was entitled to recover, unless defeated by the following facts. Azariah Grant, the husband of the plaintiff, died, seized and possessed of the premises in question, in the month of April, 1825.

Trespass for a cofv. Plea not guilty, with notice of special matter. Issue joined to the court. The plaintiff’, in support of the issue on his part, proved that he was the owner of the cow, and that the defendant Clark, by the direction of the other defendants, took and drove her away.

Trover, for a horse. Plea, the general issue, and notice of special matter.

<p>This was an action of covenant broken.</p> <p>• • • . The plaintiff, in his declaration, alleged, in substance, that the defendant, on the fourth day of March, 1806, by his deed of that date, duly excuted, &c., conveyed to one John Baker, his heirs and assigns, a parcel of land in Barre, containing sixteen and one half acres, ( describing it by metes and bounds,) and in his said deed covenanted that he would warrant and defend said premises against all lawful claims of all persons whomsoever ; — that said Baker, afterwards, to wit, on the 7th day of May, 1817, by his deed of warranty of that date, duly executed, &c., conveyed fifteen acres of said land (describing it by metes and bounds) to Joel Steele, his heirs and assigns; that afterwards, to wit, on the 9th day of April, 1818, the said Steele, by his deed of warranty of that date, conveyed said last mentioned land to the plaintiff, his heirs and assigns ; that afterwards the corporation of the University of Vermont prayed out their writ of ejectment, made returnable to the November term, 1838, of "Washington county court, against the plaintiff in this suit, to recover the seizin and possession of said last mentioned land, which writ was duly served and returned to said court, and. such proceeding were thereon had that, at the term of said court held on the third Tuesday of November, 1839, the said corporation recovered judgment against the plaintiff in this suit for the seizin and possession of said land, and $37.-50, damages, and $19.37, costs, and that the said corporation recovered said judgment upon an elder and better title than the title derived from the defendant, and that the defendant was cited in to defend said suit in favor of said corporation against the plaintiff in this suit.</p> <p>The defendant pleaded in bar of the action, as follows ; that the premises, described in the plaintiff’s declaration were in and by the original charter of said town of Barre, granted to, and for the use of a college in this state, and all lands so granted for the use of a college, are subject to the payment of annual rent, to wit, seventeen cents per acre, by all persons who occupy and possess them, under a conveyance from such college,; that, on the 15th day of January, A. D. 1801, the corporation of the University of Vermont, by indenture of lease, in writing, of that date, duly executed, for the consideration of the annual rent of seventeen cents per acre, leased to Moses Rood of Barre, aforesaid, his executors administrators and assigns, as long as water runs or grass grows, the following tract or parcel of land, described in said indenture, to wit, “the second division lot, laid out, surveyed, and drawn as a second division lot to the original right granted to, and for the benefit and use of a college, containing one hundred acres of land,” which said lease was recorded in the record of lands in the said town of Barre, on the 20th day of November, A. D. 1804, and the said Day avers that the premises described in the plaintiff’s declaration are a part of said second division college lot above described, and that, on the 20th day of April, A. D. 1805, the said Moses Rood, by his deed of that date, executed in due form of law, for the consideration of the sum of two hundred and twenty-five dollars, sold and conveyed said premises in said declaration described, to one John Belding, of said Barre, and in said deed described them as a part of said second division lot drawn to the college right, and on the same 20th day of April, the said John Belding procured his said deed from the said Rood to be duly recorded in the record of lands in said town of Barre ; and the said Day further says that on and prior to said 4th day of March, A. D. 1806, he was seized in fee of said premises in said declaration described, by virtue of a legal deed of conveyance from the said John Belding, subject to no charge or condition but the annual payment of a rent of seventeen cents per acre, thereafter to be paid to said university; that, being so seized and possessed of said premises, he, the said Day, on the 4th day of March, A. D. 1806, sold and conveyed said premises to the said John Baker, who then well knew that the said premises wmre a part of said college lot and subject to an annual rent of seventeen cents per acre ; that the said John Baker, on the 7th day ofMay, A. D. 1817, by his deed duly executed, for the consideration of five hundred dollars, sold and conveyed said premises to one Joel Steele, and in said deed described said premises as a part of said second division college lot, and said deed was, on said 7th day of May A. D. 1817, duly recorded in the record of lands in said town of Barre ; that, on the 9th day of April, A. D. 1818, the said Joel Steele, by his deed duly executed, for the consideration of four hundred and fifty eight dollars, sold and conveyed said premises to the said Chapin Keith, and in said deed described said premises as a part of said second division college lot ; and the said Day further says that on the 30th day of September, A. D. 1831, the said Chapin Keith, for the consideration of ten dollars to him in hand paid by John Moore Jr., sold and conveyed, by deed duly executed, to said John Moore, Jr., a part of said premises in said declaration described, and in, and by, said deed, covenanted with the said Moore that he, the said Keith, would warrant and defend said premises to said Moore, his heirs and assigns, against all lawful claims and demands of any person or persons whatever, except the annual rent due to the University of Vermont; that on the 18th day of Nov. A. D. 1831, the said Chapin Keith, for the consideration of twenty five dollars, to him in hand paid by Smith Sherman, sold and conveyed, by deed duly executed, to said Sherman another part of said premises, and in, and by, said deed covenanted with the said Sherman that he, the said Keith, would warrant and defend the same to him, the said Sherman, his heirs and assigns, against all lawful claims and demands whatever, except the annual rent due to the corporation of the University of Vermont; that on the 3d day of April, A. D. 1840, the said Chapin Keith, for the consideration of four hundred dollars, to him in hand paid by William Bassett,^sold and conveyed, by deed duly executed, to said William Bassett another part of said premises and in and by said deed, he, the said Keith, covenanted with the said Bassett, that he, the said Keith, would warrant and defend said premises to the said Bassett, his heirs and assigns, against all lawful claims and demands of any person or persons whatever, except a yearly rent to be paid the University of Vermont; that, on the 24th day of March, A.D.1841, the said Keith, for the consideration of four hundred and fifty dollars, to him in hand paid by one Orsamus Walker,sold and conveyed, by deed duly executed, to said Walker another part of said premises and in and by said deed he, the said Keith, covenanted with the said Walker that he, the said Keith, would warrant and defend said premises to the said Walker, his heirs and assigns, against all lawful claims and demands of any person or persons whatever, except the annual rent due the University of Vermont; and the said Day avers that in all the aforesaid deeds, executed by the said Keith, of parts of the aforesaid premises, he, the said Keith, excepted said annual rent to the corporation of the University of Vermont from his covenants in said deeds, and in no way or manner obligated himself to pay said rent, or any part thereof; and the said Day further says that the aforesaid conveyances, made as aforesaid by the said Keith, convey and transfer the title to the said grantees of the whole of the aforesaid premises in said second count described, except (discribing a part thereof) of the value of $50 ; and the said Day doth further aver that the several persons through whose hands said premises were passed and by whom the same were conveyed to the said Keith, as in the said declaration mentioned and described, during the time they owned and held the title to said premises, severally paid to said University the annual rent due theron, and the said Keith, since he has owned and possessed said premises, and after conveyance therof to him, at various times, paid the said annual rent to the said University of Vermont, which accrued while he so held, owned, and possessed said premises under his said deed from the said Steele ; and the said Day further says, that, on the 22d day of August, A. D. 1838, the day on which said action of ejectment in said declaration mentioned, was commenced, there was then due to said University a great arrear of rent, to wit, $35.00, the whole of which had accrued subsequently to the 9th day of April, 1818, and while the said Keith held and possessed said promises under his said deed from the said Steele, and that for the non-payment of this rent, which it was the duty of said Keith to pay, and for no other cause, was said action of ejectment, in said declaration mentioned, commenced, prosecuted and a recovery had thereon by the said corporation of the University of Vermont against the said Keith ; and the said Day further says, that, in said action of ejectment in favor of the said corporation of the University of Vermont against the said Keith, judgment was rendered for $37,50 damages, which was for the amount of rent due to said University up to the commencement of said action of ejectment, and the interest thereon ; that afterwards, to wit, On the 14th day of April A. D. 1840, the said Keith paid to the' said corporation of the University of Vermont the amount of damages aforesaid so recovered in said action of ejectment, as aforesaid, and the cost of the said suit, and has ever since .said recovery and the payment of said damages and cost possessed, enjoyed, and occupied said premises under his said deed from the said Steele, with the assent and permission of said corporation of the University of Vermont; and the said Day further says that, after the recovery in said action of ejectment, and the payment of said damages and cost, said corporation of the University of Vermont did not claim that the said Keith should surrender the possession of said premises, or accept from them a new lease of the same, but suffered him to occupy, possess, and enjoy said premises under his aforesaid deed from the said Steele, in the same manner he did before the commencement of said action of ejectment, all which the said Day is ready to verify, &c.</p> <p>To this plea the plaintiff replied, that, by reason of any thing in said plea set forth and stated, he ought not to be barred from having and maintaining his said action, because, he says though true it is that the premises described in the plaintiff’s declaration are a part of the second division lot, laid out, surveyed and drawn to the original right granted to the use and benefit of a college, and said lot was, by the corporation of the University of Vermont, leased to the said Moses Rood as in said plea mentioned, yet that the said Moses Rood, on the 20th day of April, A. D. 1805, by his deed of that date, executed in due form of law, for the consideration of two hundred and twenty-five dollars, paid him by one John Belding, did sell and convey to said Belding the same premises, in said declaration mentioned, in fee, and did, in and by said deed, covenant to and with said Belding, his heirs and assigns, that said premises were free from all incumbrances, and that he, the said Rood, would warrant and defend the same against all lawful claims whatever; that, afterwards, the said John Belding, by his deed, dated November 19, 1806, duly executed, for a valuable consideration, sold and conveyed the same premises to the said Ira Day, without stipulations or reservations for the payment of the rent on said premises by said Day, which deed was, and is, all the title said Day ever had in, or to, said premises. And now, the plaintiff in fact saith that the said Moses Rood, from the time of his executing his aforesaid deed to John Belding of the premises therein described, to the time of his, said Moses’, death, which took place about the year 1830, always acknowledged his liability to pay, and,, from' year to year, all the years up to his death, in fact, did pay, to the corporation of the University of Vermont, all the rent on the same land deeded by him to said Belding, and described in the plaintiff’s declaration, together with the rent on the residue of said lot. And that the several persons, through whose hands said premises were passed from said Rood, and by whom the same were conveyed to this plaintiff, as in the said declaration mentioned and described, during the time they owned and held the title to said premises, did not severally, or in any other manner, pay to said University the annual rent thereon, and of this he puts himself on the country for trial.</p> <p>To this replication the defendant demurred specially, and set down the following causes of demurrer, viz. that the plaintiff hath in his replication set up new facts to avoid the defendant’s plea in bar, and thereupon tendered an issue to the country when he ought to have ended with a verification, and also for that the said replication is, in other respects, uncertain, defective, and informal.</p> <p>The county court decided that the replication was sufficient, and the defendant excepted to the decision. The plaintiff then insisted that the rule of damages should be the value of the land from which he had been ousted by the judgment in the suit in favor of the University of Vermont against him ; but the court decided that the plaintiff could recover in damages only the amount of the damages and costs and interest thereon, recovered against him in said ejectment suit of the University of Vermont. To this decision the plaintiff excepted.</p> <p>I. The case shows that though the premises in question were called college lands, yet that all the deeds from Moses Rood down to Keith, were deeds of warranty, with all the usual covenants of seizin and title, containing no allusion to rent or reservation about its payment.</p> <p>In order to qualify the construction to be put upon those deeds, the defendant, by his plea, alleges that all the several grantees, from Rood down to Keith, severally paid rent to the University while they held the premises, and acknowledged thereby their obligation so to do. This fact the replication' traverses.</p> <p>The replication contains no new issuable fact. All that is said in it about Rood’s deed to Belding and Belding’s deed to the defendant, is but affirming or admitting what' defendant has alleged in his plea. That part, therefore, is at most but surplussage, and, if left out, leaves a good traverse of'the main fact relied on by defendant.</p> <p>The demurrer is, therefore, badly taken. But were the replication bad for the cause assigned, yet the pleas are bad, disclosing nothing to qualify the natural force of defendant’s covenants in his deed to Baker.</p> <p>It is wholly immaterial that Baker knew that the premises Were a part of the college lot, and consequently subject to rent. Each grantee looked to the grantor’s covenant of title as a guaranty against that rent which it was the grantor’s business to keep down.</p> <p>We think the cases cited by defendant, from 1 Term R. 2 & 4, N. H. and other kindred authorities, do not authorize any modified construction of this deed, in this case. See 7 Term R. 703.</p> <p>II. Admitting the plaintiff’s right to recover, what should be the rule of damages ? The declaration charges, and the defendant’s plea admits, a legal ouster. )Williams v. Wetherbee, 1 Aik. R. 233. In such case, the rule of damages is well settled to be the value of the premises at the time of the ouster. Strong v. Shumway, D. Chip. R. 110; Park v. Bates, 12 Vt.-R. 381. Can a case be found where the grantee is bound at his peril to extinguish and keep down incumbrances, where there is a general warranty ? And as the declaration shows that the defendant in this case was cited in to defend the suit of the University against plaintiff, he cannot complain that the land was lost. Nor, can the fact that the University have permitted him to remain in possession of the premises since the recovery, vary the rule of damages. He may have re-purchased, or the University may take them away to-morrow.</p> <p>■> The plaintiff’s right of recovery depends upon the construction given to the defendant’s deed to Baker, dated March 4, 1806. It appears from the pleadings that the land conveyed by the defendant to Baker was a part, of the college right; and that all lands granted by charter for the use of a college are subject to an annual rent of seventeen cents per ; and it further appears that Baker, at the time he received his deed, well knew that the land was a part of the college right, and subject to the aforesaid rent. We ins'ist that the covenant of warranty, in defendant’s deed to Baker, does not extend to the annual rent due the college. It' is evident, from the facts set forth in the plea, that the parties did not consider it within the meaning of the defendant’s covenants at the time of the conveyance. This reservation of rent was well known to Baker when he received his deed, and it was a matter of public notoriety, that all college lands in this state were subject to such rent. In view of the facts in this case, it seems to us that the court are not absolutely bound by the terms of the defendant’s deed to Baker to put the construction upon it for which the plaintiff contends. It should be'construed with reference to its subject-matter, and the intention of the parties at the time it was made. Doe v. Burt, 1 T. R. 701; Watts v. Wellman, 2 N. II. R. 458 ; Ten Broeck v. Livingston, I Johns. Ch. R. 357, 362; Jackson v. Hoffman, 9 Cowen, 271. The situation of land at the time a deed was executed, may be proved and taken' into consideration in giving a construction to it. Webster v. Atkinson, 4 N. H. R. 21, 24; Crosby v. Parker, 4 Mass. R. 110; Worthington v. Hylyer et al., 4 Mass. 196; Shep. Touch. 169, 197; 3 Cornyn’s Dig. 262, 266; Thead v. Starkie, 8 Mod. 314 ; Combe v. Jones, 2 Chitty’s R. 700 ; Cooke v. Boothe, 2 Cowp. R. 819, 822 ; Lant v. Norris, 1 Burr. 289; Dudley v. Tolliott, 3 T. R. 584 ; Spring v. Tongue, 9 Mass. R. 28. •</p> <p>2. The replication to our plea is manifestly insufficient. The material facts in the plea are not admitted and avoided, nor denied. The new matter introduced into the replication, that Rood paid the rent from 1805 to 1830, is of no importance. If, however, the court should consider it important; then we say the replication should have concluded with a verification, and not to the country. 1 Chit. PI. 656-659.</p> <p>3. If the plaintiff is entitled to recover, the judgment of the court below should be affirmed, for the rule of damages there adopted was correct. We are aware of the general rule in actions of this kind, that the measure of damages is the value of the land at the time of the eviction. Strong v. Shumway, 1 D. Chip. R. 110; .Williams v. Wetherbee, 2 Aik. R. 339 ; Park v. Bates, 12 Vt. R. 381. But there are exceptions to this rule ; and this case, we think, is one. Here the plaintiff has not been ousted of the full value of the premises. All he has lost by the alleged ouster is the amount of the rent recovered of him by the college in 1839, and the costs of the suit, and that is all he is entitled to recover. Strong v. Shumway, 1 D. Chip. R. 110 ; Niles v. Sawtell, 7 Mass. R. 444 ; Boothe v. Starr et al., 1 Conn. R. 244; Lockwood v. Sturdavent, 6 Conn. R. 373, 391 ; 1 Swift’s Dig.-366. But there is another reason why the rule of damages adopted by the county court should be sustained. It is this : the plaintiff, after the recovery by the college, sold and conveyed the premises to some two or three individuals in Barre, and received in cash all they were worth at the time of the alleged ouster, and all his deeds of the same contain a covenant, that he would warrant and defend the premises, &c., against all lawful claims and demands of any person or persons whatever, “ except a yearly rent to the University of Vermont.” So the court will perceive, if .the rule of damages contended for by the plaintiff prevails, he will receive the value of the premises twice. A rule, productive of such consequences, this court, we think, will never adopt. Again ; it is alleged in the plea in bar, and not denied in the replication, that the University of Vermont, after the recovery and payment of the damages and costs, did not claim that the plaintiff should surrender up the possession of the premises, or receive a new lease, but suffered him to occupy, possess, and enjoy them under his deed from Steele, in the same manner he did before the commencement of the action of ejectment. The recovery by the University, under the circumstances of this case, can hardly be called a breach of the covenant of warranty. Kere v. 'Shaw et al., 13 Johns. R. 238 ; Waldron v. M’Carty, 3 do. 471 ; Knots v. Carpenter, 5 do. 120. But, if the court feel bound so to consider it, actual damage is all the plaintiff should recover. Barnes v. Barnard, 5 N. H. R. 264 ; Morse v. Shaddock, 4 do. 226 ; Leland v. Stone, 10 Mass. R. 459.</p>

Assumpsit, on a promissory note, dated February 18, 1839, given by the defendants to J. P. Miller or order, and by him indorsed to the plaintiff. Plea, non assumpsit. Issue to the country.

Debt, on a recognizance to the plaintiff, in the penal sum of three hundred dollars, entered into by the defendant, Adams, as principal and the defendant Parmalee, as surety, on the 22d day of February, 1841, before Elymas S. New-comb, a justice of the peace in and for the county of Washington, the condition of which is as follows :— “ The condition of the above recognizance is such, that ‘ whereas Fanny Simmons, a single woman, did, on the 22d ‘ day of February, 1841, in…

This was an action of covenant broken. Plea, that the defendant had kept and performed his covenants. Issue joined to the country. The plaintiff, to support the issue, on his part, read in evidence, without objection, a deed, dated September 20, 1838, containing covenants of seizin and warranty against incumbrances.

<p>Assumpsit on a contract for the purchase of wool. Plea, non assumpsit, and trial by jury.</p> <p>The plaintiffs introduced testimony tending to prove that in June or July, 1839, the defendant applied to the plaintiffs to purchase a quantity of wool; that the parties agreed upon the price per pound ; that the plaintiffs then had on hand some portion of the wool, only, but how much did not appear, and that they stated that they expected to receive, soon, certain other parcels, which the defendant agreed to take, with that on hand ; and that no part of the wool was delivered, and no money or other thing paid.</p> <p>No evidence was introduced tending to show that, at the time of making said bargain, or before, the bargain was reduced to writing, or that any memorandum or note thereof, signed by said defendant, in writing, was made. Evidence was introduced by the plaintiffs, tending to show, that defendant agreed to take from three hundred to four hundred pounds of wool, at fifty cents per pound. The plaintiffs then introduced two letters from defendant to plaintiffs, and one from J. Ide, one of the plaintiffs, to the defendant, which were as follows:</p> <p><£ North Danville, 10 Oct. ’39.</p> <p>“ Gent. — I received your letter of the 2d Sept, yesterday. ‘In answer would say, that-I have felt very disagreeably ‘ about the wool I bought of you. I bought the wool for Messrs. ‘ C. J. &. B. F. Batchelder, and they agreed to furnish the ‘ money immediately. I also bought about $1500 worth, and ‘ paid out my own money, and have not received a cent of it, ‘ which puts me to a good deal of inconvenience. They have ‘ money due in Boston, but cannot get it at present. I am ‘ in hopes they will be able to furnish money soon. They ‘ tried to get money at the Bank but could not. You must ‘ keep the wool for security unless you have a chance to sell ‘ it; if so, let it go. You have not been used fairly, and it is ‘ a way I never use people when I do business for myself.</p> <p>“ Yours, &c.</p> <p>Wm. J. Stanton.”</p> <p>“ North Danville, 11 Feb. 1840.</p> <p>“ Gent. — Please inform me by return of mail how many ‘ lbs. of wool there are at your store, which you expect me to ‘ have. Mr. Batchelder, the man I bought the wool for, has ‘ refused to take it, but I am in hopes that he will conclude ‘ to be up to his agreement; however, I expect to stick to £ my trade whether he does or not.</p> <p>£< Respectfully yours, Wm. J. Stanton.</p> <p>££ Sheffield, Feb’y 12, 1840.</p> <p>££ Wm. B. Stanton, Esqr. — Sir: Yours of the 10th in- £ stant was duly rec’d, and in answer I will say there is not £ far from 350 lbs. of wool. Hope you will succeed in get- £ ting it off on your contract. I am in great want of the £ money. Respectfully yours, Joseph Ide.</p> <p>The counsel for the defendant contended that if the testimony ivas all believed, the plaintiffs could not recover, by reason of the statute of frauds and perjuries; and thereupon the court directed the jury to sign a verdict for the defendant ; to which the plaintiffs excepted.</p> <p>The only question in this case is, whether the three letters referred to, and made a part of the case, are a sufficient noté or memorandum in writing, of the contract between the parties to take the case out of the operation of the statute of frauds and perjuries.</p> <p>As to the kind of note or memorandum in writing, the statute is silent. And the question arises, what sort of a note or memorandum will answer the requirement of the statute ? Must it express the consideration, the time and mode of payment, and all the terms, conditions, and particulars of the contract ? It is obvious that such strictness is not required. The terms, note or memorandum, as used in the statute, mean nothing more than a short writing or token for the better remembering of the contract, that it may not rest in memory alone.</p> <p>It has been held that the word bargain, as used in the statute, does not render so full and strict a statement of the constituent and essential members of the contract necessary, as the word agreement. 6 East, 307.</p> <p>When must the note or memorandum of the bargain be made ? The plaintiffs contend that it need not be made at the time of making the contract, but that it may be made at any time before action brought. It is well settled that the contract of sale may be collected from one or several writings or documents. 2 Starkie, 612; 10 Mass. 230. It is contended by the plaintiffs, that if, from the note or memorandum, (whether collected from one or from several distinct documents) it appears that a contract of sale was made, and that the party considers the contract as complete and ended, that is a sufficient note or memorandum, within the statute. 2 Starkie, 604. And if from the note or memorandum it can fairly be inferred that a contract for the sale of goods has been made, even though no consideration is named, it is sufficient to take the case out of the statute. 6 East, 307 ; 12 Mass. 122. If the statute required the agreement to be in writing, then the word agreement, in legal understanding, would have to be regarded as integrally incorporated with the consideration. 10 Petersd. 89. But courts have uniformly admitted parol and extrinsic evidence of its existence and quality. A. by written undertaking, promises to pay B. one hundred dollars, without expressing any consideration ; but B. may prove the consideration by parol. And even where a fine, feoffment, or conveyance is made, upon an express consideration, a man may aver, by word, another consideration, provided such consideration be consistent with the consideration expressed.</p> <p>From the letters, in this case, there can be no doubt that the defendant bought of plaintiffs the wool sued for. And if defendant’s letters had expressed the consideration, that is, how much he had contracted to pay them, the letters would have contained the evidence of an agreement perfect in all its parts. But the plaintiffs insist that they may prove the consideration by parol; and that, if no price was agreed upon, they may prove the value at the time of sale, under the quantum meruit count.</p> <p>A bill of parcels, in which the vendor’s name is printed, and delivered the vendee, or a subsequent letter from the vendor, referring to the parcels, will take the case out of the statute. 2 Bos. & Pul. 238; 3 Taunt. 169; 15 East, 103.</p> <p>Before the writing of the letters, which contain what is tantamount to an express promise of payment for the wool, defendant was under an honorary and moral obligation to pay ; and it has never yet been decided that a moral obligation is not a good consideration for an express promise.</p> <p>The statute does not, in express terras, require the memorandum to be drawn up and signed at the time of making the contract. It requires, however, the substance and terms of it to be reduced to writing — those very things, for instance, which it is incumbent on the plaintiffs to prove, in order to recover, and in proof of which, if by parol, perjury was to be apprehended. The letters admit not a single fact in detail, which the plaintiffs, in ordinary cases, would be bound to prove; such as the date of the contract, the price, the time, and mode of payment, &c.</p> <p>The cases clearly show that the essential terms of the contract must appear from the writing, leaving nothing to be supplied by parol proof, the admission of which would let in the very mischiefs the statute was intended to prevent. 2 Kent’s Com. 511 ; Bayley Sf Bogart v. Ogdens, 3 Johns. R. 399 ; Champion v. Plummer, 4 Bos. & Pul. 252 ; Parkhurst v. Van Cortland, 1 Johns. Ch. R. 280; Abeel v, Badcljff, 13 Johns. R. 297.</p>

<p>This was an action of assumpsit for the .recovery of certain expenses, incurred by the plaintiffs, in boarding, taking care of, and doctoring one Caroline C. Rowell, alleged to be a transient person, founded upon the 12th section of the act in relation to the support and removal of paupers. The genera! issue was pleaded and joined to the country. By the schedule of claims filed by the plaintiff, it appeared that the expenditures commenced June 12, 1840, and terminated October of that year.</p> <p>The plaintiff introduced evidence tending to show, that the said C. C. Rowell was the wife of one Samuel Rowell, Jr.; that they were lawfully married, on or about the 5th of January, 1834 ; that said Samuel Rowell, Jr., was the son of Samuel Rowell, and was born on or about the 30th of May, 1808; that the father moved into Waterford about the month of January, 1815, and continued to reside there about three years ; that said Samuel Rowell, Jr., in May, 1840, while residing with his wife and several children, at Concord, Vt., entered into a bargain with his brother, James C. Rowell, to the effect that he sold and conveyed to the said James his farm, valued at $1000, all his stock, farming tools, and every other kind and description of personal property whatever, except one bed and one cow, in consideration of which, said James agreed to maintain and support, during minority, his, said Samuel’s, children —no support being stipulated for the wife — and pay all the then existing debts owing by said Samuel ; that, about the same time, he carried his wife to her father’s, Enos Page’s, in St. Johnsbury ; that she.remained there a short time, and then went to the house of David Goodall, in St. Johnsbury, who finding her to be insane, at times, and very troublesome, reported her situation to Mr. Lee, one of the selectmen of the town, with a view to obtain support for her from the town ; that said Lee made known her situation to Lambert Hastings, overseer of the poor of said town, who proceeded to provide for her in behalf of the town ; that said Goodall charged nothing for her support, while she resided with him ; that, some time afterwards, an order of removal was made, by the procurement of said St. Johnsbury, of said C. C. Rowell, to the town of Kirby, who took an appeal to the county court, and such proceedings were had that said order of removal was reversed ; that she was maintained some time at the poor-house in St. Johnsbury, and then taken by the overseer of the poor, to the insane hospital, at Brattleboro, where she remained about three months, and then, without material abatement of her insanity, was brought back to St. Johnsbury, where she remained, supported by the town, until the bringing of this action ; that said Samuel soon after said bargain, left the state and remained absent ten months, when he returned to Concord and lived in the family of said James C. Rowel, and with his own children, until the spring of 1S42, when he, with his children, removed to' Bradleyvale, Vermont; and that James paid several of Samuel’s debts.</p> <p>Defendant’s counsel, on cross-examination of one of plaintiff’s witnesses, inquired what he heard Samuel say, since said conveyance and sale to his brother, about the character and object of said sale and conveyance ; which was objected to by plaintiff’s counsel, and réjected by the court. Defendant’s counsel also inquired, on cross-examination of the witness, what he had heard said Samuel say, since said conveyance, he was worth when he made it. This being objected to, was rejected by the court.</p> <p>The defendant’s counsel objected to the admission of evidence, in support of the charges in the schedule for money paid the town of Kirby, for support of the pauper, and for articles destroyed by said C. C. Rowel, being her own apparel, and for expenses of transporting her to and from Brattleboro, and while residiug there. The court overruled the objection and admitted evidence to these several points.</p> <p>The defendant introduced evidence tending to show, that when said Caroline C. Rowell was carried by her husband to said Enos Page’s (her father’s) house ; she remained there about three weeks, for "which he charged nothing, and that he did nothing towards throwing her onto the town for support ; that Samuel Rowell, Jr., at the time he transferred his property to his brother, was worth from $400 to a $1000; that he was a healthy, able-bodied man; that when he removed with his children to Bradleyvale, he took with him several articles of property, which he had previously transferred to his brother James ; that he had resided in the town of Concord, Vermont, seven years, continuously, previous to the bringing of this action ; that from the time of his marriage, he resided in said Concord, till he sold out to his brother in 1840; and that after his return from out of the state, in March, 1841, he continued to reside there till May, 1842.</p> <p>The counsel for defendant requested the court'to charge 1 ° the jury, that if they should find that, the conveyance by S. Rowell, Jr., to his brother, was in trust, merely, for the support of his children, to the exclusion of his wife, they should not regard him as being divested of such property, in reference to the question of his ability to support his wife ; that, if the jury should find that said Samuel had resided seven successive years in said Concord, next preceding the trial of this cause, the plaintiffs could not recover; and that the absence from the slate nine or ten months, leaving his children in Concord, would not constitute, in law, any interruption to his residence there, with reference to the question of gaining a settlement. The court refused to charge as requested ; but instructed the jury as follows : —There was testimony given in the case, by the plaintiff, tending to show, that said Samuel Rowell, Jr., at the time he sold his property to his brother, had very little more than sufficient to pay his just debts, which his brother was to have paid, and has since paid; and the jury were charged, that the question, whether said Samuel, Jr., was of sufficient ability to maintain his wife, at the time she was supported by the plaintiffs, and to pay the plaintiffs therefor, was a question for them to determine, upon all the circumstances in the case ; that the ability spoken of, was, in the statute, a pecuniary ability, which must have been such as would enable him to have paid the expense of his wife’s support at the time ; that, if he had, before the time of such expense incurred by the plaintiffs, wholly divested himself of all his property, by assigning the same, absolutely and unconditionally, to his brother, for the payment of his debts and the maintenance of his children, and that, thereafter, he had no intererst in, or control of, the same, such property could not be taken into the account in determining his ability to pay such expense ; that the fact of said Samuel, Jr.’s having resided in said Concord seven years, next before the trial of this action, was unimportant, provided such residence was not completed before the commencement of the action and the accruing of the expense. The legal import of the term “ residence” was explained in the same manner as it was in Kirby v. Waterford, and in a manner not objected to by the counsel for Waterford ; and in regard to the absence from the state, the jury were told it would depend upon the existence or not of the animus revertendi, as explained in that case. In regard to clothes destroyed by the pauper and replaced, the jury were told if that happened without any fault of the p]ajntjfySj ({iey might be recovered for, so far as they were necessary, and that the expense of keeping the pauper by Kirby, and paid by the plaintiffs, if it did not exceed what they must have expended in keeping her at home, might be recovered ; and so, also, of the expense of maintaining her at the asylum, and transporting her there and back again. To which decisions, and charge of the court, the defendant, after verdict and judgment for the plaintiff, excepted.</p> <p>It was indispensable that the plaintiff should show that the town of Waterford was the place of legal settlement of C. C. Rowell, at the time of furnishing the support, or at the time of bringing the action — we think the latter. The county court instructed the jury that a residence of seven years, continuously, of S. Rowell, Jr., in Concord, previously to the bringing of the action, which the case shows to have been proved, would not avail the defendants unless it were also shown that the septenary was completed before the expenditures were made. If this is to be understood as meaning before the expenditures commenced, it was clearly erroneous. The specification of plaintiffs’ claims, made a part of the case, shows that the support commenced June 12th, 1840, and continued without interruption, reckoning the short residence in Kirby under the order of removal, and the long residence at the insane hospital, at Brattlcboro, as a continued support, as the plaintiffs do, until the bringing of the action in October of the same year. If the court meant the termination of the period of support, the jury should have been informed, that if they believed the evidence which tended to prove a continued residence of S. Rowell, Jr. in Concord seven years previously to the bringing of the action, the town of Waterford was not the place of legal settlement of the transient person, and their verdict should, of course, be for the defendant. As no evidence seems to have been introduced tending to prove the contrary, it appears impossible to account for the verdict on any other grounds than the want of explicit instructions on this point. Manifest injustice seems to have been done by it. -</p> <p>On the question of the inability of Rowell to support his wife, we think the instructions requested by defendant’s counsel should have been given. They were, that an assignment in trust, for the support of his children, (leaving his sick wife unprovided for) of all his property real and personal, with the exception of one or two trifling articles, especially when that property amounted to so considerable a sum as in this instance, could not be regarded as divesting him of ability to support his wife, provided the possession of the property could be considered as conferring such ability. is true the court do not, in express terms, negative this proposition. They say ‘ if he, Rowell, had wholly divested himself of all his property, by assigning the same, absolutely, and unconditionally to his brother, for the payment of his debts and the maintenance of his children, and that, thereafter, he had no interest in the control of the same, such property could not be taken into the account,’ &c.</p> <p>But the fact of the sweeping character of the assignment— its being made to a near relative — -the purpose to which it was to be applied — the fact of the sudden return of Samuel, after his wife had become quartered upon the town of St. Johnsbury, and a controversy between that town and Waterford in relation to her support' had sprung up, and his settling down with his children upon the real estate he had conveyed away, and his resumption and carrying away with him, some time after, of a portion of the personal property he had sold — afforded such cogent reasons for believing that the assignment was merely colorable and collusive, or was in trust for certain purposes, that the defendants were entitled to specific instructions as to the effect, if the jury should adopt the conclusion to which these facts strongly tended.</p> <p>There is manifest error in refusing to instruct the jury, in relation to the question whether Rowell’s leaving the state for 9 or 10 months, under the peculiar circumstances indicated by the evidence in this case, would or would not, interrupt his residence in Concord, where all his family, except his wife, remained, in contemplation of the act which confers a legal settlement as a consequence of seven years continued residence.</p> <p>The request made by defendant’s counsel was fully justi£e(j jjy qie ev}clence, ¡f believed.</p> <p>But the court contented themselves by alluding to the J a c animus revertendi,’ as explained in the case of Iiirby v. Wa~ terford. Of that explanation we can take no notice here. The records and files in that case are not made a part of this case, and cannot therefore be referred to, to show what instructions were given in this. This point was material, as there was evidence that Rowell commenced his residence in Concord sometime previous to his marriage in January, 1834, and continued it, if this absence did not interrupt it, till after this suit was instituted; and, from its nature, it was one which peculiarly required elucidation by the court.</p> <p>The court erred also in excluding, on cross examination of one of the plaintiffs’ witnesses, testimony as to the admissions of S. Rowell, Jr., made after the conveyance to his brother, as to the character and objects of that conveyance. His declarations subsequent to the conveyance, seem to have been excluded, upon a supposed but mistaken analogy between this case and those where the conveyances are impeached for fraud, in which latter cases, expost facto declarations of the grantors are, with great propriety, not admitted to defeat the rights of the grantees.</p> <p>As to the sum paid to the town of Kirby for the support of Mrs. Rowell, while remaining there under an order of removal, afterwards vacated — the expenses of transporting her to and from Bratleboro and supporting her while there at the asylum — the destruction of clothing and other property by her while in the poor-house at St. Johnsbury, we say that each and all of these classes of expenditures seem to be wholly irreconcileable with the terms and scope of the 12th section of the statute.</p>

<p>A sale of a personal chattel, by one tenant in common, is not such a destruction of the chattel, as to enable the other tenant in common to maintain an action of trover against the ¡wwefeser-. J</p>

<p>This was an action on the case, brought to recover for damages alleged to have happened to the plaintiff’s property, by reason of the insufficiency and want of repair of a highway in Glover. Plea the general issue, and trial by jury. The case was brought into this court upon the following bill of exceptions:</p> <p>The plaintiff, in support of the issue, on his part, adduced evidence tending to prove, that, at the time mentioned in his declaration, he was, with his team, consisting of a span of horses and a double sleigh, travelling along on the public highway described in his declaration, within said town of Glover ; that one Locke was driving a single sleigh just before hiiti, the said Kelsey ; that the said Kelsey was driving his team up a short hill, on said highway, close behind the said Locke, and that a frightened horse, harnessed in a single sleigh, without a driver or any person in said single sleigh, was furiously running on said highway towards the said Locke and the said Kelsey ; that the said Locke turned his horse partly out of the road and said frightened horse passed swiftly by him, and, in passing the team of the said Kelsey, thrust one of the shafts of said single sleigh, to which he was attached as aforesaid, into the side of the said Kelsey’s near horse, just forward of his hind legs, and killed him.</p> <p>The plaintiff, in further support of said issue, adduced evidence tending to prove, that two tree tops lay beside said highway nearly opposite each other, and that his sleigh was on said highway, between said tree tops, when said frightened horse came upon him, and that some part of the tree top on the east side of said highway, the side on which said frightened horse attempted to pass, projected so far into the road, and over the road, and so obstructed the passage along the side of said highway, that said frightened horse was turned upon and against the plaintiff’s horse, and killed him in the manner before stated.</p> <p>The plaintiff produced further evidence, tending to prove that said tree tops had been permitted to lay beside said highway for some two or three months before the injury complained of in the plaintiff’s declaration, happened ; and that there was not room enough between said tree tops for two teams to pass each other.</p> <p>The defendants, in support of said issue on their part, addued evidence tending to prove that.there was sufficient room in the road between said tree tops on said highway for two loaded teams to pass each other without difficulty, and in perfect safety ; and that a number of loaded teams did, just before, and just after, said injury to plaintiff’s horse, pass each other on said highway, between said tree tops, without any inconvenience, difficulty, or trouble.</p> <p>The defendants adduced further evidence tending to prove that the plaintiff’s team had passed said tree tops up the hill about twenty or twenty-four feet, at the time the frightened horse came upon the plaintiff’s horse, and that the plaintiff did not attempt to turn his horse out of the travelled path on said highway, when he saw the frightened horse running towards him, and when the said Locke turned out, although there was sufficient room to turn out, and no obstruction to prevent it.</p> <p>The defendants further adduced evidence tending to prove that, when the injury happened, the plaintiff’s team was standing still in the travelled path on said highway, and that on the east side of the highway, against the plaintiff’s téam, and along the side of it, there was unobstructed room sufficient for a yoke of oxen attached to a loaded cart to pass by and come into the road above the aforesaid tree tops, and that on the west side of the highway, opposite plaintiff’s team, there was room sufficient for any loaded team to turn out of the travelled path without trouble or difficulty.</p> <p>The defendants adduced further evidence tending to prove that their said road or highway was sufficient, and in no way out of repair, and that the plaintiff’s horse was killed by unavoidable accident; and that said tree tops, in no way or manner, contributed to produce the injury ; and further, that said tree tops, before the injury happened, had been well and sufficiently cut out and removed from the road.</p> <p>No further testimony was adduced in the case on either side. The counsel for the defendants contended, and requested the court to charge the jury, as follows, viz :</p> <p>1. If the jury find that plaintiff’s team was passing along said highway between said tree tops, when said frightened horse came upon him and his horse, and that there was sufficient room in the road, between said tree tops, for two loaded teams- to pass each other in safety, without difficulty or inconvenience, their verdict should be for the defendants.</p> <p>2. That towns are not liable for damages happening upon their roads and bridges, when they are kept in such a state of repair as to enable persons, in the exercise of common and ordinary prudence, to travel upon and over them with their teams and carriages in safety ; and that the plaintiff cannot recover in this case, if the jury find that the highway in question, where the injury happened, was in such a state of repair as to enable persons, with teams under their control, to pass by other teams, on said road, under the control of drivers, without inconvenience, and to pass along safely upon said highway.</p> <p>3. If the jury find that the plaintiff had passed said tree tops some twenty feet or more, and that his team was standing still, in the travelled path on said highway, when said frightened horse came upon him and his horse, and that there was room sufficient on either side of plaintiff’s team for said frightened horse and cutter, or any other team, to pass without running upon and against plaintiff’s team, he cannot recover in this action.</p> <p>4. That a person travelling upon a public highway, with his team of horses, connot recover of the town for an injury inflicted upon his horses, by a frightened horse, breaking from his driver, and running upon, and injuring such traveller’s horses, or either of them, provided there is no obstruction on said highway, to prevent such person, travelling with his team of horses as aforesaid, from turning out of the travelled path of said road, for the purpose of giving such frightened horse a chance to pass by him.</p> <p>Whereupon the court refused to charge the jury, as requested by the counsel for'defendants, and charged as follows, t0WÍt:—</p> <p>. The court instructed the jury that if the road, at the place where the injury happened, was, by the defendants, suffered to remain out of repair, and insufficient for the ordinary safety of travellers and their teams; that this insufficiency or want of repair produced the injury to plaintiff’s horse; and that plaintiff himself was guilty of no want of ordinary care and prudence, in the conduct of his team, or in attempting to escape the injury, the plaintiff was entitled to recover the value of his horse. •</p> <p>In further illustrating these several propositions, the court remarked to the jury, that towns were bound to build and repair their roads, in such a manner that they would be reasonably safe for the amount and kind of travel which might fairly be expected on them, and to enable travellers to be reasonably safe from the consequences of such accidents as might be justly expected, occasionally, to occur on such roads, i. e. such accidents as might be expected always to occur on such roads, at short intervals, or every few years, and which might be expected at one time as well as another. That it did not follow, of course, that because two loaded teams with care, might pass each other with safety, that the road was not out of repair at the the point of the tree tops before mentioned. And further, that although the road was sufficient for ordinary travelling, with kind horses, and good harnesses, and skilful drivers, yet, if the road, by reason of those tree tops, was unsafe and insufficient with reference to such teams, and such accidents, as might reasonably be expected to be found on such a road, and the accident in this case was of that character, then this point of the case would be made out, if this insufficiency and want of repair had been suffered to remain an unreasonable time.</p> <p>On the second point, that if the accident occurring in this case, of the frightened horse breaking from his driver and running furiously along the highway, was of the class of"accidents above defined, and the tree top on the east side of the road, operated to produce the injury to plaintiff’s horse, by crowding the frightened horse upon plaintiff’s horse, and that, had that been sufficiently cut away, i. e. as far as it was the defendant’s duty to cut it away, as above defined, the injury would not have happened, then this point of the case was made out.</p> <p>On the third point, that if the plaintiff did all that a man of common prudence and skill could be expected to do, under the circumstances, to escape the consequences of the accident, then this point was made out, notwithstanding there was more space on the west side of his sleigh, where-, he might have turned out his horses and sleigh, had he had sufficient time and warning for that purpose.</p> <p>To all which the defendants, excepted. The defendants interposed a motion in arrest of judgment, which' was overruled by the court; to which the defendants also excepted.</p> <p>The exceptions in this case were taken to the charge of the judge in the court below, and also to his refusal to charge as requested by the defendants’ counsel.</p> <p>1. Towns, I admit, are answerable for “any special damages which shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway or bridge,” which they are bound to support.</p> <p>What is the legal measure of duty on the part of a town to the public, in relation to its roads and bridges ? It is, I insist, nothing more nor less than this : a town is bound to keep its roads and bridges in such a state of repair as to render them reasonably safe for travellers.</p> <p>Common and ordinary care and diligence in their construction and preservation is all that the law requires. Townsend v. The Susquehannah Turnpike Co. 6 Johns. R. 90; Richardson v. Royalton and Woodstock Turnpike Co. 5 Vt. R. 580; 1 Swift’s Dig. 552.</p> <p>If, therefore, the treetops in question had been cut out, so as to leave room sufficient between them for loaded teams to pass each other without difficulty, the defendants were not in fault, and the road was reasonably safe for travellers, and the jury should have been so instructed.</p> <p>2. Towns are not liable for “ special damages” happening upon their roads and bridges, when they are kept in such a state of repair as to enable persons, in the exercise of comraon and ordinary prudence, to travel upon and over them with their teams and carriages in safety. 6 Pick. R. 189. The plaintiff’s horse was not injured by the tree tops, nor did the running horse take fright at them and break away from his driver. The loss was the result of accident, and that alone. Suppose the frightened horse had been killed by running onto the plaintiff’s horse, would the town have been liable for damages ? I apprehend not. If the plaintiff had alleged and proved that the running horse broke from his driver in consequence of the insufficiency of the road, and run onto his horse and killed him, he would have made a case of less doubt than the one we have under consideration.</p> <p>3. The only defect in the road complained of in the declaration, was the position of the tree tops. Now if the plaintiff had passed the tree top some twenty feet or more when the injury happened, and there was a free and unobstructed passage on both sides of his team sufficient for him to have turned out of the travelled path of the road, or for the frightened horse to have passed by him, the verdict most certainly should have been for the defendants, and the jury should have been so charged.</p> <p>The frightened horse could not have been crowded by the tree top on the east side of the road onto the plaintiff’s horse, if the plaintiff had passed it twenty feet or more when the injury happened.</p> <p>4. If the plaintiff, when he discovered the frightened horse running furiously towards him, stopped his horse in the middle of the travelled path of the road, and made no effort to turn out, when there was no obstruction to prevent it, he took the risk of injury upon himself, and the defendants are not liable, and the jury should have been so instructed. If the running horse was not frightened and put in motion by the insufficiency of the road, how can the plaintiff recover for damages occasioned by his running ? In no way, we apprehend,</p> <p>and, in support of the charge against the several objections urged by the defendant’s counsel, cited Hawkin’s P. C. 76, 147 ; 10 Petersd. 236 ; JS'oyes v. Morristown, 1 Vt. R. 353 ; Richardson v. Royalton fy Woodstock T. Co. 5 Vt. R. 580; Lester v. Pittsford, 7 Vt, R. 158; Hunt wife v. Pownal '9 Vt. R. 411; Noyes v. White River T. Co. 11 Vt. R. 531.</p>

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

This was an appeal from an order of removal of one Rebecca Davis, from Sutton to Burke. Trial by jury.

<p>Where it becomes iiecessary,in charging the commission of an offence, to allege that a certain term of a county court was duly holden, it is not sufficient to allege that it was holden by and before the chief judge of such court, without mention of any assistant judge. If either of the judges is named, it should appear that, at least, a quorum of the court held the term.</p> <p>So if it be alleged that a particular cause was tried, by and before the chief judge, it should appear that one or both of the other judges assisted to try it, or that they were unable or disqualified to sit on the trial.</p>

<p>When a debtor, against whom there is cause of action, is out of the state at the time the cause of action accrues, the statute of limitations will not run on the demand, unless he returns into the state, and that fact is known to the creditor.</p> <p>If a debtor, absent from the state, would avail himself of the statute of limitations on the ground of his having, in the state, property subject to attachment, it is incumbent on him to show this fact; and it is not sufficient to show that he has deeds of land on record, without showing a title in himself.</p> <p>The certificate of a town clerk, that a person has not conveyed land, is not evidence of that fact, but it must be proved by the oath of a witness or witnesses.</p>

Assumpsit, on a joint and several promissory note, for one hundred dollars, signed by defendant and Myron S. Kimball and Ethan H. Nichols, payable to plaintiff in six years from date, with interest, dated March 12, 1834. Plea, general issue, and trial by jury.

This was an action on the case for damages arising from a defective levy of the plaintiff’s execution against Nathaniel Sinclair upon a piece of land in Hardwick, by P. Bliss, a deputy appointed by the defendant, who was sheriff of Caledonia county.

Petition of John Armington and three hundred and twenty one others, filed in this court, praying the court to appoint commissioners for the purpose of laying out and establishing a public highway through those parts of the towns of Barnet, Ryegate and Newbury over which the road of the Passumpsic Turnpike Company runs.

Two justices ordered the removal of Mary Olive (foodhue from Kirby to Waterford, on the ground that she had a settlement in the latter town derived from Ephraim T. Good-hue, her father. On appeal from the order, the appellants pleaded that the pauper was unduly removed, because her legal settlement was not in the town of Waterford. Upon this plea issue was joined and a trial had.

This was an appeal from a decree of the court of chancery, ordering the defendants to pay the orators a certain sum expended by them in making a road, upon which the defendants afterwards laid their turnpike. The bill was answered, the answer traversed, and testimony taken. The substance of the bill, answer and evidence, sufficiently appears in the opinion of the court. 1.

This was an appeal from a decree of the court of chancery. The orator, in his bill, which was entered March term 1836, -alleged, — That, on the 22d day of January, 1824, he was seized in fee simple of five acres of land, part of the south west corner of lot 41, in Sheffield, with a saw mill privilege ; that he had in contemplation to build a saw-mill on said lot, and to that end, purchased of John Chase forty five dollars worth of saw-mill irons, and to secure to said Chase…

This case was an appeal from a decree of the chancellor of the third circuit. A motion was interposed by the orator, for this court to order the issue of fact in the case to be sent to the county court to be tried by the jury.

There was a motion interposed before the hearing in the present case, to send the whole cause to the chancellor, or else continue the hearing in the case until after the determination of a bill of review pending in the court of chancery in the case.

This was a petition for a divorce from the bonds of matrimony on the part of the wife, on the ground of the husband, “ being of sufficient ability to provide suitable maintenance for her, having, without cause, grossly, and wantonly, and cruelly refused and neglected so to do.” .

<p>A party will be entitled to the usual time, under the rule, for filing exceptions to a report of auditors, after a motion to recommit the report has been disposed of.</p>

<p>This was the case of an appeal, by the executors, from the decree of the probate court, disallowing a will. The will was established in the county court, and their judgment affirmed here. A question was made in regard to costs in the case.</p>