Volume 16 — Vermont Reports

Trover for a quantity of hay. After judgment against the de® fendant by default, the case name on for a hearing on the assess® raent of damages. It appeared that the plaintiff, a constable, attached the hay in question, as the property of the defendant, on mesne process in favor of Lyman & Marsh against the defendant, by leaving a copy in the town clerk’s office.

Assumpsit on promissory note; plea, the general issue, and the defendant Munger also pleaded, puis darrein continuance, his discharge in bankruptcy. Replication, that no such discharge had been granted, &c. Issue on both pleas was joined to the jnrj, On the trial by the jury the plaintiff gave in evidence his note, and rested his case.

Assumpsit. The plaintiffs sued as indorsees of a promissory note, dated 5th February, 1841, executed by the defendant, and made payable to one L. C. Moore or order, at the Bank of Burlington, three months after date. Plea, the general issue, and trial by the court.

<p>Where the plaintiff had obtained judgment and execution in an action on a promissory note signed by the defendant and two others as sureties, and also held a note, signed by the defendant and another as sureties, which was void as against the sureties, but for which the plaintiff had paid a valuable consideration, and the plaintiff proceeded with an officer to the defendant’s house, and turned out to the officer, to be taken by him on the execution, all the defendant’s property that could be found, and, while the property was in the officer’s possession, told the defendant that he would collect the whole of said execution out of his property, unless he would secure to him one half of the void note, but that, if he would secure one half of the void note and one third of the amount due on the execution, he would collect the remainder of the execution of the other execution debtors, and the defendant thereupon executed his notes, with surety, one for half of the void note, and the other for his share of the execution, it was held that the giving such notes was voluntary, and that the facts did not show any such oppression or duress on the part of the plaintiff, as would entitle the defendant to resist payment of the note given for the half of the void note.</p>

Assumpsit on promissory note. Plea^ the general issue, and trial by jury. On trial, the plaintiff gave in evidence the note declared on, which was in the words following. “ Payable in f “$41,50. Jericho, April 15, 1840.

Book Account. ^ The only controversy was in reference to the plaintiff’s charge of two promissory notes, of $300 each, and interest and costs of protest on same, in reference to which the auditor reported the following facts.

Book Account. Exceptions were taken by the defendant to the disallowance by the auditor of certain items in the account of the defendant, who was an innkeeper. The plaintiffs were partners, but each hired separately a teamster, whom they employed in drawing lumber in which they were jointly interested.

Assumpsit. The plaintiff declared as indorsee of a promissory note executed by the defendant, and made payable to C. S. Terreite & Co. of the city of New York. The defendant pleaded the general issue, and also a plea in offset, founded on a claim in his favor against the payees of the note, on a warranty of property sold by them to the defendant, and for which he averred the note in suit was given.

Assumpsit. The plaintiff declared as indorsee of a promissory note, executed by the defendants to Moses Catlin or order, for the sum of $10,000, dated April 1, 1837, and payable in ten years from date “ with annual interest.” The action was brought for one year’s interest, becoming due April 1, 1842.

Trespass on the case against the defendants, as common car* tiers on Lake Champlain. The plaintiffs offered in evidence the following receipt: “ Received, Burlington, 2d Nov. 1836, of Hickok &, Catlin, ninety five tierces oil meal, one firkin butter marked J. M. Catlin, one box merchandize, and ten barrels apples marked J. Tracy, Troy, to be delivered to White, Baker & Merrill, Troy.

Trespass on the case against the defendants, as common carriers of goods, &c., from Burlington to Plattsburgh, N. Y. The declaration alleged that the plaintiffs delivered to the defendants, and the defendants accepted, a package of bank bills, amounting to $1109, directed to Richard Yates, Esq., cashier of the Clinton Co. Bank at Plattsburgh, “ to be safely and securely carried and conveyed by the said defendants from Burlington aforesaid to Plattsburgh aforesaid, and then,…

Assumpsit on a promise that, if the plaintiff would settle a judgment in favor of one Hill against one Thomas M. Taylor, and discharge the liability of one William A. Prentiss as bail for said Taylor on the suit in favor of said Hill, and would notify said Taylor by letter that he had so done, the defendant would send to the plaintiff his note for ¿£50, payable in January, 1833.

This was an appeal from a decree of the probate court, for the district of Chittenden, assigning to the said Anna Phelps such portion of the personal estate of her late husband, to be selected by her from the inventory, as would amount to the sum of $350 at the prices named in the inventory.

Audita Querela. The complaint alleged that the defendant brought his action against the complainant for a default, as constable, in not talcing sufficient bail on a writ put into his hands by the defendant, and that, when the case was on trial in the county court, the complainant insisting that a part of the judgment, recovered by the defendant in the original suit, had been paid by the defendants in that suit, and ought therefore to be deducted from the damages to be…

<p>The office of an inuendo, in a declaration for slander, is to explain, and not to extend, the meaning of words.</p> <p>An averment in such declaration that the defendant had spoken of and concerning the plaintiff these words, “N. (meaning the plaintiff) burnt it, (meaning said store) and he (meaning the plaintiff) knew it, and I, (meaning the defendant) can prove it,” — preceded by a colloquium that the words were spoken of and concerning the burning of a store owned by the defendant, and followed by an averment that the words were intended to charge the plaintiff with a felonious burning, &c., was held sufficient. .</p>

Book Account. The auditors reported that John Stearns, J. W. Mason, and H. Staunton, having contracted to carry the mail from Burlington to Derby until July 1, 1841, sold and assigned their contract, together with the use of all their stage property, &c., to the plaintiff and one Palmer, who procured the defendants Isaac Haven, Griswold, Covill, and Munson, to sign with them, as sureties to the original contractors, a bond for indemnity, and for the preservation of the stage…

Book Account. The debit side of the plaintiff’s account, as presented before the auditor, was $112.20, including accruing interest, which was charged to the amount of $17.56.

• Book Account. The plaintiff’s account consisted of but, one charge, allowed by the auditor at $30, for framing and finishing a bam; in- reference to which the auditor reported that the work was done under a special contract between the parties as to the manner of doing the work, and the time and manner of payment, and that the plaintiff had performed the work, and the defendant had paid him therefor all but the sum of three dollars.

Book Account. The defendant objected to two charges for money in the plaintiff’s account, one for $40, and the other for $238, in reference to which the auditor reported, that the defendant, being indebted to one Dinsmoor in two notes, of $250 each, which were secured by mortgage on the defendant’s farm, the plaintiff and defendant entered into a verbal agreement, by which the plaintiff was to assist the defendant to pay the said debt to Dinsmoor, and the defendant was to…

This was a complaint for bastardy, preferred to Charles Adams, Esq., one of the justices of the peace for the county of Chittenden, by whom the defendant was required to recognize in the sum of $400, with surety, for his appearance, &c., before the county court.

Petition for Partition. The petition set forth that the petitioner was tenant in common with the defendant, H. Bradley, of certain lands lying in Duxbury in the county of Washington,- and in Essex in the county of Chittenden, and was also tenant in common with all the defendants of certain other lands, &c., lying in Willis-ton in the county of Chittenden, and prayed that partition thereof might be made, and his interest be set forth distinct and separate from the rest.

Assumpsit. The declaration set forth that the plaintiff had sold and delivered to the defendant a quantity of merchandize, — that the defendant thereupon agreed to give the plaintiff security for the payment of the price agreed upon, — and that, the plaintiff having demanded the security, the defendant neglected and refused to furnish it. There was also a count in indeb. assumpsit for goods &c. sold and delivered.

<p>If a deposition be taken with notice, the party taking it is under no obligation to exhibit it to the adverse party, or to permit him to have access to it.</p>

Assumpsit. The declaration set forth in substance, in several counts, that the plaintiff and defendants entered into an agreement, by which the defendants were to furnish money, and the plaintiff was to purchase wool for them, which the defendants were to sell, and, if the profits exceeded $200, to pay to the plaintiff for his services one half of the amount of profits, — but if they were less than that sum, then to pay the plaintiff one third; and the plaintiff averred that…

<p>A person may be compelled to testify, as a witness, against his interest, if he be not the real party to the suit.</p> <p>A grantor may so far disseize his grantee as to render a conveyance of the land, made by the grantee to a stranger, inoperative.</p> <p>This may be done by setting up a claim of title to the land in himself, if this be made known to the grantee.</p>

Trespass for entering upon the land of the plaintiff, and removing therefrom a barn. Plea, the general issue, with notice of special matter, and trial by jury.

Trustee process. The questions in the case arose between the plaintiff and the claimant. The trustee disclosed that, on the 6th day of Jan. 1843, he executed and delivered to the principal debtors his promissory note for $400, payable to their order, ninety days after date, at the Bank of Burlington; and that he had never received any notice of the transfer of the note until after the commencement of the present trustee suit.

Trustee Process. The trustees disclosed that, in the winter of 1839 — 40, they became indebted on book account to the principal debtor, but the account remained unadjusted, and the precise sum due was not ascertained and agreed upon until Jan. 18, 1843, when it was fixed by the parties at $103,65, and that said sum was still due from them.

<p>An indebtedness of one summoned as trustee, which accrued from labor performed by the principal debtor after the service of the writ upon the trustee, is attachable by trustee process, and the trustee may be held chargeable - for it.</p> <p>Such claim is not contingent, within the meaning of the statute, at the time of the service of the trustee process, if it do not appear that the labor was performed upon an entire contract, which was not completed at that time.</p>

<p>Where the defendant borrowed a carriage of the plaintiff to use in a particular place, and sent it heavily loaded to another place, whereby the carriage was damaged, it was held such a conversion as would entitle the plaintiff to recover the value of the carriage in an action of trover.</p> <p>If the taking of property be wilful, or if the property be essentially injured, and an action of trover be commenced, the defendant cannot compel the plaintiff to receive back the property in mitigation of damages.</p> <p>It would seem to be a well settled rule in the English courts, in actions of trover and trespass de bonis asportatis, that when the taking was not wilful, and the property isjnot essentially injured,/and is tendered back, the plaintiff will, on payment of costs, be "compelled to discontinue his suit, or proceed at his peril ésto costs. Redfield, J.</p> <p>But the granting such rule is discretionary with the court, and, to be available in taxing costs, must be specially applied for and obtained in advance. Per In.</p> <p>The statute of this State, allowing a tender to be made in all civil actions at ' any time more than three days before the term at which the writ is made returnable, applies, only to-cases in which a tender might have been made, before suit brought, without the aid of the statute. It does not apply to actions of trovér.</p>

This was a report of referees, judgment in the county court for plaintiff and exceptions by defendant. In this court a question was made as to which party should produce copies of certain deeds, referred to by the referees in their report, as constituting a part of the plaintiff’s title.

<p>In this case there were exceptions upon both sides. A question was made which party was entitled to open the argument.</p>

This was an action of slander; verdict and judgment in the county court for plaintiff; — motion in arrest of judgment overruled, and exceptions. After judgment was affirmed in this court, the counsel for the plaintiff moved for a certificate that the cause of action arose from the wilful and malicious act of the defendant, &c.

This was a petition to be allowed to enter an' appeal from the decision of commissioners on an insolvent estate. A .question was made whether ex parte affidavits could be received in explanation, or contradiction, of the testimony upon which the petition was founded, which was set forth in the petition, in the manner usually practised in petitions for new trials.

The plaintiff declared in indebitatus assumpsit for work and labor; plea, the general issue. Held: that a devise of land, or of an interest therein, should be presumed a satisfaction for a debt. Eastwood v. .Vinlce, 2 P. Wms 613, Strong v. Williams, 12 Mass. 391. 3.

Trespass on the freehold. The locus in quo was described in the declaration as lot No. 171 in St. Albans. The case was sent out to referees, who reported that the plaintiff, in 1818, took a quitclaim deed of said lot No. 171 from Samuel Burton, and soon after went into possession of said lot, and that he had continued to occupy the same to the present time, as a wood and timber lot, claiming it as his own.

Trespass on the case. Plea, the general issue, and trial by jury- The declaration alleged that the defendant was possessed of a quantity of cord wood, which he proposed to sell to the plaintiff at one dollar per cord.

Book Account. Controversy was had in the court below in reference to one item only of the plaintiff’s account, being for $25.00 which the defendant agreed to pay as difference between wagons exchanged by the parties. The auditor reported, in reference to it, that the defendant “ agreed to pay that sum, with interest, at one, two, or five years, at the defendant’s option,” and that .the defendant was to give his note for that sum, payable as before stated.

Book Account.- The plaintiffs’ account, as presented, was conceded to be correct.

Account. Judgment to account was rendered in the county court, and an auditor appointed, who reported as follows : From Jan. 1, 1839, to Oct. 23, 1840, the parties were tenants in common of a tract of land and saw mill thereon in Highgate, — the defendant owning two thirds and the plaintiff one third thereof.

Audita Querela. The complaint alleged that the defendants had commenced an action against the plaintiff and one Stinehour, on a note in which said Stinehour was principal and the plaintiff surety ; that on the return day of the writ the parties appeared, and the case was continued to a day fixed ; that before that day arrived, the justice, without the knowledge of the plaintiff, and by the procurement of the defendant, and in pursuance of a- fraudulent agreement between the…

The hill set forth a contract of co-partnership, entered into by the orator and defendant as practising physicians and surgeons, to continue for two years, and by the terms of which, if the orator sold out to the defendant at the expiration of the term, he was not to “settle himself in practice” within twenty miles of the defendant, and, if the defendant did not purchase of the plaintiff his real estate, &c., the defendant was not to “ settle in the practice of medicine or…

The orator set forth -in his bill, among other things, that in 1810 one Daniel Ryan died, leaving a large estate, real and personal, and' appointing John Na-son, David Edmond and John Curtis, and the survivors of them, executors of his last will.

<p>This was a petition for leave to enter an appeal from the probate court.</p>

<p>Judgment in favor of the plaintiff reversed pro forma, it appearing that an affirmance of the judgment might embarrass the plaintiff in pursuing another remedy against the defendant.</p>

<p>When a videlicet is followed by that which is necessary to be alleged, and is material, it is considered as a direct and positive affirmation, or averment, which is traversable, unless contrary to the preceding matter. It is as necessary to prove it, when material, as if it had been averred without a videlicet.</p> <p>Where, in a declaration on a promissory note payable in one year after the decease of A. B., the decease of the said A. B. was alleged under a videlicet, the declaration was held sufficient on general demurrer.</p>

The administrator claimed to be allowed the amount of a claim, allowed by the commissioners on claims against the estate in favor of Charles Carrón, son of the intestate, amounting to seven hundred and five dollars and thirty cents, in reference to which the commissioners, appointed by this court to adjust the administrator’s account, reported, that the claim was “fictitious, unfounded and illegal, and was procured to be allowed by the claimant with the assent and connivance…

The plaintiff claimed, among other things, to recover an account for services rendered to the deceased in his life time. The auditors reported that the plaintiff, being an orphan, went to reside with the testator, who was his uncle, when twelve years of age, and resided there until April, 1823, when he was nineteen years of age.

The plaintiff claimed that certain advancements had been made by James Brown, father of the parties, to the defendants, Abel Brown and William Brown, which should be reckoned towards their… Held: but the deed has no witness, or no seal; it is consequently no deed, but the son has gained a title by the statute of limitations; shall this let him in for an equal share out of the residue of the. estate ? The grand object and design of the statute would be defeated in this way.

The plaintiff’s declaration contained a special count in assumpsit and the indebitatus assumpsit counts. Plea, the general issue, and trial by the court.

Assumpsit on a note dated Sept. 10, 1836, for five hundred dollars, payable in one year from date, and signed by the defendant and one… Held: that, as there had been no offer to rescind the contract, the fraudulent representations complained of by the defendant could not, under the circumstances of this case, avail him as a defence to this note, and directed a verdict for the plaintiff. Exceptions by defendant. eration, or where it is necessary that an ¡ sustained be made.

<p>A., holding two promissory notes against B., both of which were due, promised B. that, if he would pay the amount due upon one of the notes, he would extend the time of payment of the other note one year; and B. thereupon borrowed the money and paid the note mentioned in the oifer. iHeld, that the promise made by A. was without consideration, and that it was no bar to an action on the other note, commenced within the year.</p> <p>A note in the following terms, “ We, in behalf of the first Methodist Episcopal Society in Middlebury, promise,” &c., and signed by the defendants in the usual form, and without any additions, is, at least prima facie, their invidual note.</p>

<p>Minuteness and precision are not required in stating objections to a decision of commissioners upon an insolvent estate, preparatory to taking an appeal therefrom : if the objections filed tend to show that the claim ought further to be litigated, it is for the court of probate to say whether they are stated in terms sufficiently positive and definite.</p> <p>It is no cause for dismissing the appeal, that the application for the appeal includes the statement of the applicant’s objections to the decree appealed from.</p> <p>In this case the application for the appeal stated that the applicants objected that a claim allowed by the commissioners was unjust, and it was held that it was sufficient, and that the county court erred in dismissing the appeal for want of a more definite statement of objections.</p>

The appellee filed a petition in the probate court for the district of Addison, praying that dower might be assigned to her in certain lands, of which she alledged her late husband, Vashni Hemm'enway, died seized and possessed, in Bridport. The probate court appointed commissioners according to the prayer of the petition, and accepted their report, setting out dower to her in the lands described.

It appeared that the intestate, Friend Adams, was, in his lifetime, administrator upon the estate of one Benjamin Adams, of which estate the appellant was one of the heirs. No commissioners were ever appointed on the estate of Benjamin Adams, no order of distribution of said estate among the heirs was ever made, and no settlement ofthe estate was ever had in the probate court.

Action on the case, brought to recover damages sustained by reason of the insufficiency of a highway. Trial by jury. It appeared that the highway, on which the accident happened, was one built to accommodate a few inhabitants, but was one which the town was bound to keep in repair.

<p>When a bill in chancery is pending, and the party afterwards institutes a suit at law for the same matter which is alleged as cause of complaint in the bill, the court will not abate the suit at law ; but, Per Bensett, J., the party may be compelled, by suitable proceedings instituted in the court of chancery, to elect which suit he will proceed with, and will be enjoined from prosecuting the other.</p>

Action on the case for an escape. On trial it appeared that one Willard Fletcher was arrested on mesne process, at the suit of the plaintiff, Sept. 7, 1840, and, for want of bail, was committed to Addison county jail, where he continued until the 26th of November, 1840, when he broke jail and escaped to parts unknown.

<p>A written motion to dismiss a suit, ailedging that there is no sufficient minute of a recognizance upon the writ, will be considered as making a reference to the writ, although it is not so expressed in terms; hence a, demurrer to such motion will not be held to admit the truth of the allegation, when it is apparent upon the writ that there was a sufficient minute óf a recognizance.</p> <p>Where the minute was, “Needham &- Dennis recognized,” &c., it was held that the court would not presume that they were partners, and that the omission of the Christian names of the recognizors was an unessential defect.</p> <p>But, if it were assmued in such case that the recognizors were partners, the court will not presume that the recognizance was a partnership transaction, given by one in the name of both ; — and, without this presumption, the union of their names would only furnish better evidence to designate the individuals recognized.</p>

Trover. The declaration contained two counts, alledging in the first the conversion of sixty sheep, and in the second the conversion of several horses, &e. Plea, the general issue, and trial by jury. Testimony was introduced by both parties in reference to the alledged conversion, and exceptions were taken by the plaintiff to the charge of the court upon that point; but, the verdict being for the plaintiff, that part need not be detailed.

Trespass for false imprisonment. The defendant Crane pleaded that he was quarter-master of the 7th regiment of the militia of this state, and, as such, was by law “ authorized and required to execute all processes issued by lawful authority.” That, on the first day of July, 1841, he received from the senior officer of said regiment an execution, in due form of law, reciting that the plaintiff had, by the field officers of said regiment, been amerced in a fine of $2,00 for…

Trespass quare clausum fregit. Plea, the general issue, and trial by the jury.

Information in one count, alledging that the prisoners feloniously did steal, take, and carry away “one bay horse of the value of seventy dollars, one bay mare of the value of sixty dollars, one saddle of the value of ten dollars, and one bridle and martingal of the value of five dollars.” The jury returned- a verdict that the defendants were guilty as to the saddle, and not guilty as to the other articles named, — and that the value of the saddle was two •dollars and twenty…

Assumpsit ón a contract in writing executed on the sale, by the plaintiff to the defendant, of a patent right for making and vending “Vaughan’s Patent Balance.” The contract contained this condition. “ Now the condition of the above obligation is such, that if there should be any defect in said patent, whereby all its privileges cannot be enforced, or if there shall be any other invention so nearly like it, as to materially affect the value of the same, now in the patent…

The plaintiff, in this case, declared as follows, “In a plea of the case, for that, at the city of Detroit, Michigan, on or about the 23d August, 1838, the defendant, by his deed of warranty in writing, duly executed under his hand and seal, and duly acknowledged, and for the consideration of the sum of ten thousand dollars then paid to him by the plaintiff, sold and conveyed to the plaintiff one equal undivided half of fourteen lots of land, of eighty acres each, situated…

<p>Book Account. Among the items of the defendants’ account, was a charge of ten dollars, money delivered, in reference to which the auditor reported that the charge was disputed' by the plaintiff, and that there was no evidence to sustain it,, excepting the testimony of Martin O. Walker, one of the defendants. The plaintiff insisted that the defendants should be required to produce their original book of entries, on which the charge was made; but it appeared from the testimony of said Walker that, on moving the office of the defendants, said original book of entries, which was in the possession of the defendant Baker, had been misplaced, and that said Walker was unable to find it; but that the account exhibited was a true transcript of the original entries, which he made from said book previous "to its being misplaced.</p> <p>The auditor allowed the item without requiring the defendants to produce the book, and the county court accepted his report. Exceptions by plaintiff.</p> <p>It has been held that the book of a party is evidence for or against him, according to its appearance; and that our law has given to the adverse party the right to claim its production. Cummings v. Fullam, 13 Vt. 439. It is written evidence, therefore, and subject to the general rule ; before evidence of its contents can be admitted, satisfactory evidence of its loss must be given. Viles et al. v. Moulton, 11 Vt. 470. Royalton v. R. Sf. W. Tump. Co., 14 Vt. 311.</p> <p>The only discretion given to the auditor is, in deciding whether the request is, or is not, reasonable ; that is, if the book is demanded, a reasonable time must be allowed to produce it. If it have been lost, or destroyed, that fact should be satisfactorily shown; it is not sufficient to say that it has been mislaid, without showing any diligence whatever to find it. What Walker testified to might have been true, and yet Baker have the book in his possession.</p> <p>The statute leaves it discretionary with the auditor, before whom the action is tried, to require the production of the original book of the party, or not. Rev. St. c. 36, § 8. In this case he ■decided that the request to produce it was not reasonable, and his decision upon that point is conclusive.</p>

Book Account. The auditor'reported that a balance was due to the plaintiffs, but did not append to his report copies of the accounts of the parties, nor in any manner set them out. The defendant excepted to the report in the county court.

Trustee Process. The trustee Slason disclosed, that, on the 27th of November, 1840, the said David Hurlburt executed to him a lease of certain premises, which Hurlburt held in right of his wife, Lucy Hurlburt, for which Slason covenanted to pay an annual rent of $80 ; and that, by the terms of the covenant, the rent was “ first to be applied to pay the debts owed by the said Hurlburt, and next the debts owed by the said Hurlburt and his wife, according to a list of the same,…

<p>When one dies in this state, having his domicile here, his property in possession, — and in action, when the debtors reside here, — vests in the administrator, whenever appointed, by relation from the time of the decease.</p> <p>But the administrator here has no control over dioses in action, when the debtors reside out of the state.</p> <p>But papers, which are the evidences of such dioses, are considered things in possession ; and the administrator may maintain trover for them, although carried by a stranger into another state subsequent to the decease of the intestate, and there converted by the defendant, and no evidence given of any other conversion.</p>

Book Account. The plaintiff presented his account before the auditor, which consisted of charges only; the defendant presented no account, and relied upon the statute of limitations. The last item in the plaintiff’s account was charged under date of July 2, 1821, and this action was commenced March 30, 1840.

Ejectment on mortgage. The defendant fcolvin executed to the plaintiff a mortgage of the land sued for, which was dated Oct. 12, 1838, and the condition of which, after providing for the payment of a certain note of five hundred and thirty four dollars, made payable one day after date, contained these words, — “ and also [shall pay] what I may owe him on book, and, if the note and book account is paid, then this deed is to be null and void, — otherwise to be and remain in…

Ejectment for seventy three acres of land in Tinmouth. Plea, the general issue, and trial by jury. The plaintiff claimed title by virtue of a deed of the premises, executed by Nathaniel Chipman, April 27, 1804, to herself and her then husband, John W. Brownson, and showed that her said husband died Nov. 20, 1824.

Ejectment. Plea, the general issue, and trial by the court.’ The plaintiffs showed title in themselves to the demanded premises, by virtue of a levy of an execution, in their favor as administrators of Jesse Tryon, upon the premises. The execution was issued on a judgment rendered on a claim due to said Jesse Tryon in his life time. The levy was made Nov. 6, 1840, and the writ in this case was made returnable to Rutland county court September term, 1841.

The bill, in this case, was brought by the orators in behalf of themselves and the other creditors of Hoit Guernsey, deceased, alledging, among other things, that a large amount of the personal property of the said Guernsey had come into the possession of the defendants, Slason and Langdon, at or about the time of his decease, and that the defendants, Slason and Denison, were administrators upon the. estate of the said Guernsey, and that said property had never been…

<p>Where the report of road commissioners was filed fifteen days before the session of the court, according to the statute, it was held that exceptions to the report were in season, if filed the second day of the term.</p> <p>Rule granted for taking and filing testimony in vacation, in a road case.</p>

Trespass, for taking certain personal property, which the defendant Vail, who was a deputy sheriff, attached as the property of one Daniel Bartlett. It appeared that said Bartlett made an assignment of all his personal property, except what was exempt from attachment and levy, to James McDaniels and others, in trust, to pay certain specified creditors of said Bartlett, and the surplus to be applied to the payment of all other debts due from Bartlett.

<p>Book Account. The auditor reported, that, prior to the commencement of the plaintiff’s action, the parties met for the purpose of making a settlement, — one Hanley being present to assist the plaintiff. That, after a mutual examination of their accounts, the defendant claimed that the balance due to the plaintiff was eighty two dollar», and drew In order for that sum on Francis Slason, and offered it to the plaintiff, as the balance due to him. That the plaintiff declined receiving it, claiming that a larger sum was due to him. That finally the defendant delivered the order to Hanley in the presence of the plaintiff, directing Hanley to deliver it to the plaintiff, if the plaintiff would receive it as the balance due to him. That the order was subsequently delivered by Hanley to the plaintiff, and was accepted by said Slason. That the plaintiff declared, when he received the order, that it was not in full for the balance due to him. From these facts the auditor considered that the receiving the order by the plaintiff, after he had heard the direction given by the defendant to Hanley, did amount to a settlement of their accounts.</p> <p>At the suggestion of the- auditor, and by the consent of the parties, the auditor proceeded to examine the accounts, and reported, that, calling the order of eighty two dollar» a payment to the plaintiff, he found a balance due to the defendant of two dollars and ninety four cents.' The county court accepted the report of the auditor, and rendered judgment for the defendant for his costs, to which the plaintiff excepted. On the hearing in the supreme court it was, for the first time, discovered that the auditor had made a mistake in adding up the defendant's account, and that there was in fact an undisputed balance due to the plaintiff of seven dollars and six cents, besides said sum of eighty two dollar».</p> <p>From the schedules of the accounts, reported by the auditors, it appears .that there is due to the plaintiff an undisputed balance of $7,06. The taking of the order, then, by the plaintiff, could not extinguish more of his account than the amount of the order. Seeley et al. -V. Spencer, 3 Vt. 334. Wright v. Alien, 4 Vt. 572. And, though it should be considered as amounting to a settlement, ■yet it could not prevent either party from having the accounts adjusted as they in reality stood between them. Darling v. Hall, 5 Vt. 91. Whiting v. floridn, 5 Vt. 451.</p> <p>The whole coursh of practice of the courts of this state has been to proceed in thp adjustment of accounts according to what seemed just between the parties, without being trammelled by supposed, or even real, settlements. Austin v. Derry, 3 Vt. 58. Wood v-Johnson, lé Vt. 194. Will the court, then, in this case, confine the party to that, which he at the time disclaimed as being a settlement, and that, too, when it appears that there is a just balance due to him ?</p> <p>The acceptance of the order for $82 by the plaintiff, as stated in the auditor’s report, did amount to a settlement of the accounts between the parties.</p> <p>It was the right of the defendant to direct in what manner, and for what purpose, the order should be received by the plaintiff;— and the plaintiff, knowing as he did the directions of the defendant, could not apply it, or receive it, otherwise. 12 Vt. 249. 8 Wend. 405. 2 Hall 197. 9 Cow. 420, 747. 2 Caine 99. 2 E. C. L. 334. 2 Vt. 283, 287. 1 E. C. L. 494.</p> <p>Hanley was, at the time he received the order, and also at the time he delivered it to the plaintiff, the agent of the defendant for that special purpose. The plaintiff knew the extent of his agency, and is therefore bound by the directions given to him. 3 T. R. 757. 6Vt. 334. 2 Kent. 620 — 1. 3 Conn. 172.</p>

The appellant pleaded that said Adaline was the lawful wife of one Samuel P. Hall, of said Clarendon, and was living with him as his wife at the time of the removal, and that they were the parents of the children removed. The appellee replied that said Adaline was not the lawful wife of said Samuel P. Hall, and, upon this, issue was joined to the court.

Debt on a jail bond. The defendant Norton was committed by virtue of an execution, issued from the court of chancery, to compel the payment of money, and executed the bond in question on his admission to the liberties of the prison, and was regularly admitted to the benefits of the poor debtor’s oath. The only question in the case was, whether he was entitled to be discharged on taking that oath, or whether his departure was a breach of the bond.

The orator set forth in his bill that the intestate, John Jackson, died Aug. 24, 1837, leaving a widow with four children, and two children, — the defendants Abigail Warner and Mary Ann.

This was an action for breach of covenants contained in an indenture executed by the defendant of the one part, and the plaintiff and others of the other part. The defendant craved oyer of the indenture and demurred'.

This was an action upon a jail bond, taken upon the commitment of Asahel Booth on an execution in favor of the Bank of Benning•ton, and assigned by the sheriff to the bank. The original debt was a note discounted at the bank.

Debt upon a bond executed by the defendants, and conditioned for the faithful performance, by the defendant Raymond, of the duties devolving upon him as a director of the Bank of Bennington. The writ was dated Feb. 12, 1842, and was made returnable to the June term, 1842, of the county court.

Indebitatus assumpsit for money had and received, &c. The cause was referred, and the referees reported, in substance, as follows.

<p>Trespass on the cáse, with a count in tfover, for twenty tons of hay and five hundred bundles of oats. Plea, the general issue, and trial by the jury.</p> <p>On trial the plaintiff gave in evidence a written agreement, signed by himself and the defendant Darling, but not sealed, by which the plaintiff leased to Davling certain prémises and stock for the term of two years from the first day of April, 1838, and by which Darling agreed, among other things, to deliver to the plaintiff one half of all the crops, except that fed to the stock, the produce to be divided by "weight and measure. Also evidence tending to prove that Darling commenced occupying the premises under the lease, and cut on them the hay and oats in question in 1839; that, some difficulty having arisen in September or October, 1839, between the plaintiff and Darling, the plaintiff, in the absence of Darling, drove off the cows, which were leased with the farm, and kept them elsewhere for a few weeks; that he then drove said cows back to the premises, and requested Darling to take care of them in pursuance of the contract; that Darling refused' to do so, or to have any thing further to do with the stock, and the plaintiff procured one Baker to take care of the cows and other stock for him on the premises ; and that there was not then sufficient hay and forage on the premises to keep the stock through the winter, to the time when the lease would expire.</p> <p>The plaintiff also proved, that, in the month of December, while Baker was taking care of the stock for him, the defendants removed nearly all the hay and forage then on the premises, and that the same was taken by them to the barn of Amedon, where it was all consumed for the benefit of the defendants prior to the commencement of this action. The plaintiff also introduced testimony tending to prove that Darling was insolvent, and that Amedon was knowing to the contract between the plaintiff and Darling, and to the transactions between them, as above stated.</p> <p>It appeared from the testimony that the plaintiff kept the cows, driven off by him, until they had ceased to give milk, and that Darling demanded them of him before he returned them. It further appeared that Amedon, before the removal of the hay and oats, had purchased the same of Darling, and had paid him therefor a fair price.</p> <p>The court charged the jury, that, if they found these facts to be true, the plaintiff was not entitled to recover. Verdict for defendants. Exceptions by plaintiff.</p> <p>1. Hurd was the absolute owner of so much of the hay as was necessary to keep the stock on the place through the winter; that amount was not, by the contract, to be divided between them ; and the case shows that there was not sufficient for that purpose. The defendants, then, having appropriated it to their own use, are clearly tort feasors. Swift v. Mosely, 10 Vt. 208. Bigelow v. Huntley, 8 Vt. 151.</p> <p>2. After Darling had refused to take care of the stock, the plaintiff had unquestionably a right to enter and use the hay, which was appropriated for that purpose, as he did. Farrant v. Thompson, 7 E. C. L. 272. A party entitled to a temporary possession may maintain trover, even against the general owner. Roberts v. Wyatt, 2 Taunt. 268.</p> <p>3. The taking the hay from the premises by the defendants, and converting it to their own use, when they had knowledge of all the facts, was in fraud of the plaintiff’s rights, and case will lie, if trover will not.</p> <p>4. But, if it should be held that Darling was joint owner of the hay, this action will lie. For, if a joint owner destroys or sells a personal chattel against the consent of the other joint owner, and so as to destroy the joint owner’s interest therein, trover or case will lie, both against the one who sells and the one who purchases. Farrant v. Thompson, 7 E. C. L. 272. Wilson v. Reed, 3 Johns. 175. White v. Osborne, 21 Wend. 72. Mumford v. McKay, 8 lb. 442. Farr v. Smith, 9 lb. 338. Foot v. Colvin, 3 Johns. 216. Hyde v. Stone, 7 Wend. 354. Barton v. Williams, 7 E. C. L. 147. Ladd v. Hill, 4 Vt. 164. Rzghtmyer v. Raymond, 12 Wend. 51. In this case there was a perfect destruction of Hurd’s interest in the property.</p> <p>If land be leased on shares, the lessor and lessee are tenants in common of the crop. De Mott v. Hagerman, 8 Cow. 220. Vickery v. Taft, 1 D. Ch. 241.</p> <p>The plaintiff had no property in the hay and oats sued for. The property and right of possession were both in Darling. The written contract between them has already received an interpretation in part in the case Hurd v. Darling et al., 14 Vt. 214, where it was held, that, at the time of the alleged conversion, “ no portion of this property had vested in Hurd in severaltyand it is there said to be “ questionable -whether he could be said to be seized of the property as tenant in common.” This “questionable” matter is here to be determined.</p> <p>This contract is in terms and effect a lease from Hurd to Darling for the term of two years, — that is, a contract that the one shall divest himself of the possession, and the other come into it for that time, rendering rents. Bac. Ab., Leases B,. 4 Kent. 85, 95, 96. Termes de la Ley, Leases. Catlin v. Hayden, 1 Vt. 375. 2 Bl. Com. 41. I Johns. 267. As rent, Darling was to deliver to Hurd one half of the crops, (except that fed to the stock.) Upon such delivery to Hurd the part delivered became his, but not before. Hurd v. Darling et al, 14 Vt. 214. Mamoell v. Manwell, lb. 14.</p> <p>Thus this contract differs from an ordinary letting of a field on shares for a single crop, in which case the owner and occupier are tenants in common of the crop. Bishop v. Doty, 1 Vt. 37. Jackson v. Brownell, 1 Johns. 267, 272.</p> <p>It follows, then, that Darling, being the owner of the premises for the two years, was the owner of whatever grew upon them during the term; and, having exclusive possession and right of possession of the former, had such possession and right of possession of the latter. No property in the crops, upon their growth, could vest in Hurd by reason of any executory provision in the contract, for, at the date of the contract, the crops were not in existence. Brainard et al v. Burton et al., 5 Vt. 97. Mucldow v. Mangles, 1 Taunt. 319.</p> <p>The refusal of Darling to take care of the stock, even though wrongful, could not vest in Hurd any property in the hay which he had not before, since Darling was still in possession of the premises under the lease. And, if Hurd had no property in the hay, no temporary possession, such as that of feeding it to the cattle, could avail him against Darling, who had both the right of property and possession.</p> <p>The count in trover therefore fails, and the other count, unsupported by any claim of ownership in Hurd, stands simply as a complaint in tort against Darling for selling, and Amedon for buying, Darling’s hay, which Darling had agreed to dispose of partly for Hurd’s benefit, and partly for his own.</p>

Trover for a quantity of wool. Plea, the general issue, and trial by the court.

Trover for a yoke of oxen. Plea, the general issue, and trial by the court. It appeared that the defendant contracted, September 8, 1841, to draw to the Battenkill a quantity of logs for the plaintiff, and that he was to complete the job that winter, or, if the season should prove unfavorable so that the work could not, with due diligence, be then finished, he was to complete it the next winter.

Trover for a watch. Issue was joined to the court upon a statement of facts agreed upon, which were substantially these. The defendant, about the middle of November, 1842, commenced teaching school in Dorset, in the plaintiff’s district, and obtained a watch from the plaintiff’s wife, and said he would return it that week. The chrystal of the watch was cracked.

Trespass for taking a one horse lumber Wagon. Plea, the gen» eral issue, and trial by the jury. The plaintiffs gave evidence tending to prove that they purchased the wagon of one Cobb, and took possession of the same. The defendant claimed that the sale was fraudulent as to the creditors of Cobb, and gave in evidence the record of a judgment by confession in favor of Lyman Merrifield & Co. against Cobb for $91.08 damages, and costs.

Trespass for taking thirteen milch cows, and other property. Plea, the general issue, with notice of special matter. On trial the plaintiff proved that the property was taken by the defendant in the town of Arlington, June 15, 1840, and also introduced evidence tending to prove a sale and delivery of the same property from Rufus Corey to her some time in the month of May, 1840.

This was an action to recover the penalty for being parly and privy to certain fraudulent notes, signed by one Zacheus Walworth, and made payable to the defendant.

Ejectment for land in Pownal, being a part of the lot reserved by the charter to the first settled minister in said town. Plea, the general issue, and trial by the jury.

<p>This was a petition for the re-assessment of damages awarded by a committee appointed by the county court to lay out a highway in the town of Pownal. The report of the committee laying out the road was accepted, and the town was ordered to open the road to be worked by a time specified. This petition was not served upon the town within sixty days after that time, but was served within sixty days after the time when the town actually commenced working upon the road. At the term at which the petition was entered in the county court a committee was appointed, without objection on the part of the town. At the succeeding term, the committee having made their report, awarding a larger sum as damages than had been assessed by the prior committee, the town moved to dismiss the petition, on the ground that it was not served within the time required by statute.</p> <p>The county court overruled the motion to dismiss, and accepted the report of the committee, to which the defendants filed exceptions. And now the defendants pray for a writ of certiorari, that the proceedings of the county court may be revised by this court.</p> <p>The Revised Statutes, p. 133, § 47, provide that all petitions of this character shall be commenced “previous to the expiration of sixty days after such highway shall be laid open to be worked.” The 44th section of the same chapter directs the manner of ascertaining the precise time when the road is thus laid open, for if provides that the court shall, by their order, fix the time when the lands shall be opened for working such highway. And section 14 provides for the recording of such order in the town clerk’s office, that thus notice may be given.</p> <p>The expression “ laid opened to be worked” manifestly refers to this time, and not to the removal of obstructions, or the time when they actually commence working upon the road. ■</p> <p>Under the former statute all petitions for re-assessment of damages were required to be commenced within sixty days after the “opening of the road.” This expression was construed to refer, not to the removal of obstructions to travel, nor to the actual making of the road, but to the time of lodging the certificate with the town clerk.Emerson v. Reading, 14 Vt. 279 ; Warren v. Bunnel, 11 Vt. 600. So, under the Revised Statutes, such petitions must be commenced within sixty days from the time specified by the order of the court for the opening of the road for working, and not from the time they commenced making.the road.</p> <p>I. The objection now taken should have been made to the appointment of any committee to re-assess the damages. By submitting to the appointment, and taking the chance of a lower assessment than the first, the town have waived their right to raise this objection.</p> <p>II. The proceeding of the land owners was commenced in due time.</p> <p>1. The words of the statute [ Rev. St. p. 133, § 47, ] cannot have any application, but to the actual opening of the road. If the legislature had intended the time fixed by the court for opening the road, it would have been so expressed.</p> <p>2. This construction is strengthened by comparing this section 'with the 16th section, where, in case of a road laid by the selectmen, the time limited for the application of a land owner for the reassessment of damages is, “ sixty days after the highway shall be opened to be worked ;” which words, in this section, can only apply to the actual opening of the road, — the statute not having provided that the selectmen shall previously fix any time for its being- opened. Rev. St. 126, § 16.</p> <p>3. The object of the 47th section, which was to give the land owner a fair opportunity of obtaining a just compensation for his damages, is best answered by this construction. Indeed the object may be defeated by any-other.</p>

The order was made on the 12th day of September, 1842. Held: that, to make an order conclusive, it must be executed, — that is, the pauper must be actually removed, unless prevented by sickness or death, or the order must be perfected by giving legal notice of the same.

<p>Appeal from an order of removal of Nathan Richardson and his wife from Landgrove to Peru. Plea, that the paupers were unduly removed, and trial by jury.</p> <p>It appeared in evidence that the pauper, from 1818 to 1833, resided on a lot of land, which was claimed by both Landgrove and Peru to be within their respective charter limits, and that he had gained no legal settlement since 1833. From a plan of the town - of Peru, it appeared that the proprietors of that town had allotted and claimed the land as far east as the “Munn line,” which was run in 1770, and which was claimed to be the ancient and established line between said towns. It further appeared in evidence that the first and second tier of lots west of the Munn line were claimed, and jurisdiction over the different lots in the same was exercised, by both Peru and Landgrove; and that part of the inhabitants residing upon those lots paid taxes and voted in Peru, and part in Landgrove ; and that the pauper resided on a lot in the second tier, _and had voted and paid taxes in Landgrove, and also had paid three several taxes in Peru, and no others had ever been claimed of him. prior to 1833, and that he voted in Peru in the year 1839, when he was again residing on the same lot.</p> <p>It also appeared, that, by an act of the legislature, passed October, .1835, the jurisdictional line between the two towns was fixed on the west line of the first tier of lots west of the Munn line, and that the pauper ‘ resided on the second tier of lots, which was by that act assigned to Peru, at the time he acquired his last legal settlement.</p> <p>The court charged the jury,, that it was immaterial whether the Munn line was the true line between the two towns, or whether the land was within the charter limits of Peru, and that the only question for them to decide was, whether- Landgrove had exercised and maintained exclusive jurisdiction- over the lot on which the pauper resided, except as before stated. Verdict for appellants. Exceptions by plaintiff.</p> <p>1. The charge of the court to the jury is exceptionable, since it places the question of the pauper’s settlement upon the fact whether Landgrove had exercised jurisdiction over the land on which the pauper resided; when, from the evidence, the jury would have been warranted in finding that Peru had exercised and claimed jurisdiction over the same lot. The proof of the exercise of jurisdiction by both towns distinguishes this case from that of Corinth v. New-bury, 13 Vt. 496; as there the jurisdiction was uninterrupted and exclusive in one town.</p> <p>2. As neither town had exercised exclusive jurisdiction, it should have been left to the jury to find from the evidence whether the land, on which the pauper resided, was within the charter limits of Landgrove, or Peru ; and for this purpose it become material for the jury to ascertain whether the “Munn line” was the actual and established jurisdictional line between the towns.</p> <p>3. By the statute of 1835, [ Acts of 1835, p. 29,] the jurisdictional line between the towns was established by dividing the territory in dispute ; and, in the division, the lot upon which the pauper resided, and acquired a settlement, fell to the town of Peru. By the Revised Statutes [ c. 16, § 1,] the liability to support the .pauper devolved upon Peru, in consequence of the annexation to that town of the lot on which the pauper acquired his settlement.</p> <p>The obligation of towns to support paupers does not depend upon their chartered, but upon their jurisdictional, limits, as claimed and exercised by the town ; they must support all, of whom they have claimed allegiance, and over whom they have exercised jurisdiction. There is nothing to take this case out of the decision in Corinth v. Neiobury, 13 Vt. 496.</p>

This was a libel for a divorce from the bonds of matrimony, alledging, as a cause, the intolerable severity of the petitionee. In the course of the trial the counsel offered in evidence the record of a conviction of the petitionee of an assault and battery upon the petitioner.

This was a petition for a writ of certiorari to the county court, to bring up the record of their proceedings in laying, a road-, assessing damages, &c. On hearing, the granting the writ was refused by this court. The petitionees then moved to dismiss the petition, and to be allowed their costs.

Book Account. The auditor reported that a balance was due to the defendants of nineteen cents. Items of both accounts were disputed before the auditor and in the county court. Several of the plaintiff’s charges were for the services of the minor children of his wife, by a former husband.

Assumpsit on a promissory note, dated Feb. 2, 1834, and payable six months after date. The defendant pleaded that he did not assume and promise within six years next before the commencement of the suit.

<p>On a sale of personal property it was held that there was no sufficient change of possession, as against the creditors of the vendor, where the property, after the sale, still remained upon the farm formerly owned by the vendor, and which had been occupied by him for more than fifteen years, and the vendee, being the son of the vendor, was one of the vendor’s family, and the vendor and vendee each used the property as they might need 5 and that it made no difference that the vendor had, some years previous, given a mortgage of the farm, and had afterwards given to the mortgagee a quitclaim deed, under a parol agreement that he should still have the right to redeem, and had told the vendee that he might redeem, by paying the debt due to the mortgagee, and take the farm, and the mortgagee had agreed by parol to permit him to do so, which agreement, after the commencement of an action by the vendee against an attaching creditor of the„vendor, for the property, had been reduced to writing.</p>

Trespass for taking a pair of oxen. Plea, the general issue, with notice that the defendant would justify the taking as collector of school district No. 4 in Windham. Trial by jury.

The writ was granted, and the case came on for a hearing upon the facts appearing upon the record. It appeared that the petitioners weve, by an act of the legislature passed Oct. 16, 1795, constituted a body politic and corporate, to continue for the term of one hundred years, with the exclusive privilege of erecting and continuing a bridge over West River in Brattleboro, and of taking a certain toll for crossing the same.

The bill stated that the orator had contracted to support the defendant during his natural life; and that the defendant at the same time executed to the orator deeds of certain lands, — among which… Held: in the time of Coke, that, although an award of the realty was no bar to an action to recover the same lands, yet, if the party would ¡not perform the award, his bond, if he gave one, was forfeit. 1 Roll. Rep. 270. Kyd on Awards 59. And in 1 Ld.

Assumpsit on a promissory note, dated April 7, 1837, signed by Adolphus Whitney and Alfred Whitney, and which suit was also brought against Hiram Whitney, as trustee of the principal .debtors. The writ was dated March 26, 1842. The principal debtors filed a motion in the county court to dismiss the suit, for the reason that it was commenced by trustee process on a contract made prior to the first day of January, 1839.

Assumpsit on a promissory note, given by the defendant for the sum of $62,91, dated June 24, 1829, and payable to Lucy Gilson on demand with interest. Plea, the general issue, and trial by jury. The plaintiff gave in evidence the note declared on.

<p>The supreme court will, on motion, in their discretion, reverse pro forma a judgment of the county court, in order that the defendant may plead in bar a discharge in bankruptcy, obtained subsequent to the final trial in the county court, — on payment by the defendant of the costs in the supreme court.</p>

Book Account. The auditor allowed the plaintiffs’ account at $3,52, including interest $0,26. The defendants presented a claim for five dollars, in reference to which the auditor reported as follows. The plaintiffs, at the request of the defendants, had purchased for the defendants certain articles in Boston, on their own credit, and had taken therefor a note signed by the defendants.

This was a prosecution for bastardy. At the trial in the county court the plaintiff was offered as a witness. The defendant objected to her admission, on the ground that she had not sufficient capacity to understand the obligations of an oath, and offered to examine her upon the stand, previous to her examination in chief, for the purpose of ascertaining her capacity and degree of understanding. It appeared that the plaintiff was about thirty five years of age.

Ejectment. Plea, the general issue, and trial by the jury. The plaintiff, to support his title to the premises demanded, offered in evidence the indenture, dated Oct. 14, 1837, signed by himself and the defendant, the terms and conditions of which are fully set forth in the opinion of the court; the defendant objected to its admission, but the court overruled the objection.

Ejectmemt for land in Barnard, described as Lot No. 169 of one hundred acre lots in said town. Plea, the general issue, and trial by jury. The writ was served May 6, 1839. On the trial in the county court, (Nov. T. 1842) the plaintiffs showed a good title in themselves to the premises demanded, under the charter of the town, and it was conceded that the defendant was in possession of the premises at the commencement of the action.

Petition for a new trial, assigning as a reason the discovery, since the last trial in the case, of new and important testimony. The citation was served Feb. 9, 1843, and was made returnable to the February Term of the Supreme Court, 1843.

This was a motion for a writ of certiorari, to revise the proceedings of a justice of the peace on a complaint preferred before him by the defendant, Joiner, as grand juror, against the petitioner for an alleged assault and battery committed by the petitioner.

This case was brought to the supreme court on exceptions taken by the defendants to the decision of the county court on questions of law. The judgment having been affirmed, the defendants filed a motion for a new trial, alledging, as reasons, a surprise and the discovery of new and material testimony.

The orator set forth in his bill, in substance, that Zelah Pinnock, the father of the orator, had, in the year 1834, conveyed to one Jasper Clark a farm then owned by said Zelah, and taken back therefor a bond, signed by Clark, conditioned for the support of said Zelah and Ins wife during their natural lives.

<p>Petition for the appointment of commissioners to lay a highway through a portion of Andover, in Windsor County, through Wind-ham and Londonderry, in Windham County, and through Winhall into Peru, in Bennington County. The petition commenced, “the undersigned petitioners come, and represent,” &c.</p> <p>A motion to dismiss was interposed, assigning as a reason that it did not appear from the petition that the petitioners were any of them freeholders, or inhabitants, of the towns, or vicinity, through which the road was to be laid.</p> <p>cited Rev, St. 129, § 39 ; 130, § 34; 132, § 44.</p>

Petition for a divorce. The petitionee was set up as having left the state and gone to parts unknown. On application to a Judge of this court an order was made requiring the petitionee to be notified by publication, or by delivering to him a true and attested copy of the petition and order. No person was named in the order to make the service.

Book Account.. The defendants presented no account; the plaintiff’s account contained but a single charge, which was for $88.00 in money, in reference to which the auditor reported the following factsi The defendants had executed jointly a note to Holmes & Homer of Boston ; but, as between themselves, Lamb was the principal and the other two defendants sureties only.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal.

Assumpsit on a promissory note', signed by the defendants, and made payable to one' Hall, and by him indorsed to the plaintiffs’ testator. Plea, the general issue, and trial by the jury.

Action on the .Case, for that the plaintiff bargained with the defendant to buy of him a certain bay horse, and the defendant, knowing the horse to be unsound, by falsely warranting him to be sound, deceitfully sold the said horse to the plaintiff. Plea, the general issue, and trial by jury.

Ejectment. Plea, the general issue, and trial by jury. The plaintiff and the defendant James B. Holman each claimed title to the demanded premises under one Willard Edson. The deed from Edson? to the plaintiff was executed Nov. 19. 1841. The deed from Edson to James B. Holman, and which was given in evidence by him, was dated June 26, 1840, and was recorded in August, 1841.

Trial by the court. It appeared that Charles Chamberlin, by his will executed March 19, 1833, devised to the appellant, Abiel Chamberlin, “ twenty acres of land on the north side of upper meadow lot No. 10, except the house and land in which I now live stands, together with the wood yard, and such land around the same as may be necessary to erect out buildings upon and suitable yards for the samealso, “ twenty five acres of land on the north side of upper meadow house lot…

Assumpsit upon a promissory note, with a count in indebitatus assumpsit for a horse sold and delivered and for money had and received. Plea, the general issue, and trial by jury. On trial the plaintiff gave in evidence the note declared on, which was in these words: “ Haverhill, N. II., Oct. 16, 1840.

Book Account. The plaintiffs, on the hearing before the auditor, presented an account against the defendant for $108.42, cash paid to him by the Amoskeag Manufacturing Company, and credited him by freight of starch at two separate times $42.06, and by cash $20.00. The defendant presented no account. The auditor reported, in substance, as follows.

Information in two counts, — alledging in the first count that the respondent burglariously and feloniously entered the dwelling house of one Cyrus Marston, of Berlin, in the night time, with intent to commit a rape, &c., — and, in the second count, that-he entered burglariously, &c., the same dwelling house, in the night time, with intent to commit adultery, &c. The jury returned a verdict of guilty on the second count.

Assumpsit on a promissory note, dated April 11, 1840. The declaration contained two counts, — one against the defendant as maker of the note, the other against him as guarantor of the same note. Plea, the general issue, and trial by the court. On trial the plaintiff gave in evidence the note declared on, which was signed by one Samuel Hoyt, and indorsed by the defendant, and made payable to the plaintiff, or order, in thirty days.

Assumpsit on a promissory note, signed by the defendant, and made payable to the plaintiff, or order. Plea, the general issue, and trial by jury. On trial the execution of the note by the defendant was conceded. The defendant then gave in evidence a writing, purporting to be a receipt in full for the amount of the note, and signed by the plaintiff.

Indebitatus assumpsit for money had and received, &c. On trial the plaintiff introduced testimony tending to prove that $220 of his money had been received by the defendant, under an agreement of the defendant to refund it.

Assumpsit, brought to recover damages for the non-performance of a contract, entered into by the defendant, to deliver to the plaintiff the possession of a piece of land, which the plaintiff alleged the defendant had conveyed to him, and for not delivering on said premises a quantity of manure, sold by the defendant to the plaintiff. Plea the general issue, and trial by the court.

Trespass on the Case. The declaration contained two counts, the second of which alleged that “ the defendant was owner of a certain common stage coach, for the carriage and conveyance of passengers from Montpelier, in the County of Washington, to Randolph, in the County of Orange, for hire and reward,” &c; that the plaintiffs daughter, Sarah Taylor, took passage in said coach from Montpelier to Randolph; and that “thereupon then and there it became and was the duty of the…

Trover for a quantity of tallow and the casks in which it was contained. Plea, the general issue, and trial by jury.

Trespass for taking certain personal property. Plea, the general issue, with notice that the property in question was taken by the defendant as collector of the town of Barre, by virtue of a regular tax bill and warrant, &c. The taking of the property and its value were admitted by the defendant.

Trespass for taking a certain mare. Plea, the general issue, with notice of a justification of the taking the mare by virtue of an execution against one Riley Whitney, and as his property; trial by jury. The plaintiff, to support the issue upon his part, introduced testimony tending to prove that, in April 1839, one Riley Whitney, a brother of the plaintiff, purchased a lot of land in Moretown, giving, among others, a note for $75, which was signed by the plaintiff as surety.

This was an action of trespass for assault and battery, commenced before a justice of the peace, and came into the county court by appeal at the November term, 1842. At that term the plaintiff, in pursuance of leave of court, obtained by him, raised the ad damnum in his writ from $100, at which it then stood, to $1000.

Ejectment for lands in Barre. Plea, the general issue, and trial by the jury.

Trustee Process. The plaintiffs ancPthe principal debtors were residents and citizens of Boston, Massachusetts. The trustees were citizens of this state, residing in Montpelier, in the county of Washington.

-21, 1843, by two justices, pursuant to the statute. The appeal having been duly entered in court, the appellees filed a motion to dismiss the same, assigning as a reason that, though true it was that the order was made Feb. 21, 1843, yet that the paupers named in the order of removal had never been in fact removed, and no copy of the. order of removal had ever been delivered to any overseer of the poor of the town of Calais, but that the order “ had been suffered to die a…

This was an action of debt, originally commenced before a justice of the peace, to recover the penalty given by statute for obstructing a water course. The defendant, on the day when the writ was made returnable, appeared, and moved to dismiss the action, on the ground that the justice, when he signed the writ, did not indorse upon it a minute of the time when he signed it; and this motion was renewed in the county court.

<p>This was a petition for a new trial, assigning as cause the discovery of new evidence since the final trial in the case. The petition contained the names of the witnesses, from whom the newly discovered evidence was expected, — but not the affidavits of the witnesses, stating their testimony, nor the minutes of the judge who presided at the trial. The petitionee filed a motion to dismiss the petition for these reasons.</p>

Petition for divorce, assigning, as cause, the cruel, gross and wanton refusal of the petitionee, without cause, to support the petitioner.

Assumpsit on a promissory note, signed by the defendant and by McLean & Wallace, — -a firm consisting of John McLean and Matthew P. Wallace.

Account. Judgment to account was rendered in the county court, and an auditor was appointed .to .take the accounts of the parties. The parties had been partners in trade, the defendant being the active partner, and this action was brought for the liquidation of the partnership accounts. There was no question made as to the amount of the plaintiff’s account. In reference to the defendant’s account the auditor reported as follows.

Book Account. The defendant, at the hearing before the auditor, objected to several items of the plaintiff’s account, but finally abandoned all but two questions raised by him. The first item objected to (No. 28,) was for 18168 feet of timber, in reference to which the auditor reported as follows ; — In 1823 the plaintiff and one Woods, were lessees in common of two lots of land in Barnet, with the right to cut the timber standing thereon.

Book. Account. The action was originally commenced by trustee process before a justice of the peace, and came to the county court by appeal. The balance claimed in the declaration and the ad damnum were each forty dollars. After oyer of the plaintiffs’ account the defendant, Hopkins, pleaded in abatement to the jurisdiction of the court, alledging that the debit side of the plaintiffs’ account exceeded forty dollars; to which plea the plaintiffs demurred.

<p>Trespass-for taking from the possession of the plaintiff certain personal property, described in the plaintiff’s declaration. Plea, the general issue, with notice of special matter, and trial by jury.</p> <p>On trial it appeared that the plaintiff, in 1843, was constable of St: Johnsbury, and the defendant Wright was a deputy sheriff for the same county. On the 10th of April, 1843, four writs of attachment against James Ramsay, in favor of Jacob C. Bean, John Bacon, John Kelly & Co., and the Farmers’ & Mechanics’ Co., were sued out, and the three first writs were put into the hands of Wright to serve, and the other into the hands of the plaintiff. Wright attached, upon the three writs which he held, among other property, the articles sued for in this action, and took the same into his custody,. The plaintiff attached the same articles of property, now sued for, upon the writ which he held in favor of the Farmers’ & Mechanics’ Co., but did not take them into his possession ; he returned that he had attached them subject to the three attachments made by Wright, as above mentioned.</p> <p>The defendant Wright, at the same time, had in his hands an execution against the said Ramsay in favor of one Kittredge, for the sum of $919.05. This execution he also levied upon the property in question, then being in his possession, and returned that he had done so subject to the three attachments made by him, as above detailed. On this execution, on the 5th of May, 1843, the execution debtor, Ramsay, wrote and signed a request to Wright to sell the property on said execution, and thereby agreed to take no advantage of him for not advertising it according to law.</p> <p>Judgment was rendered against Ramsay in the four suits in which the attachments were made, as above mentioned, and the four executions thereon were put by the creditors intojthe hands of the plaintiff for collection. The three executions, which issued in the suits in which the attachments were made by Wright, amounted to $47.50. On the 22d of April, 1843, the plaintiff, having the said executions in his possession, demanded of Wright the property attached in the suits in which they issued, aud afterwards, on the same day, took the property from the place where Wright had deposited it, without the consent of Wright.</p> <p>On the 5th day of May, 1843, the defendant Wright, assisted by the other defendants, took the property in question from the place where it had been deposited by the plaintiff for safe keeping, and on the same day Wright sold the same property at auction, in pursuance of the request of Ramsay, above mentioned. Wright then tendered to the plaintiff the amount of the three executions, in favor of Bean, Bacon, and Kelly & Co., being $47.50, together with the plaintiff’s fees upon the same, — which the plaintiff refused to receive.</p> <p>The court instructed the jury that the plaintiff, having the executions in favor of Bean, Bacon, and Kelly & Co. in his possession, might, with or without the consent of Wright, possess himself of the property attached in the suits in which the said executions issued ; that Wright, by selling the property upon the execution in favor of Kittredge, as he did, destroyed the lien which he had by virtue of of that execution; and that the plaintiff, having in his possession the four executions delivered to him, and having obtained actual possession of the property in question, might maintain this action against Wright, who had shown no other claim than the one by virtue of the execution in favor of Kittredge.</p> <p>The jury returned a verdict for the plaintiff, for the amount of the four executions held by him. Exceptions by defendants.</p> <p>The court decided, that Burrows, having the three executions, had a right to take and possess himself of the property attached on the writs, with or without the consent of Wright; the court also decided, that the sale of the property on Kittredges’ execution against Ramsay, by agreement of the creditor and debtor, without being posted the full fourteen days, was illegal, and destroyed his lien upon the same by virtue of the execution in favor of Kittredge.</p> <p>We think that neither of these decisions can be supported; the first cannot be carried out in practice; the second, if it had not been settled the other way in the case of Munger v. Fletcher, 2 Yt. 524, would operate in a manner too inconvenient and injurious to be adopted.</p> <p>We say, then, that to permit or sanction an officer to attach property in the hands and possession of another officer is irregular and tends to confusion.</p> <p>1. The attaching officer is always liable for the property taken, either to the plaintiff, if he recovers in the suit, or to the defendant, if he recovers; and no other officer is permitted to attach such property out of his possession. This subject was thoroughly investigated and lucidly treated by Judge Parsons, in Watson v. Todd, 5 Mass. 271, and has been treated as the settled law in Massachusetts ever since. Vinton v. Bradford, 13 Mass. 114. Thompson v. Marsh et al., 14 Mass. 269. Again, I understand the law, as above stated, to be fully recognized as the law of this state, by Judge Hutchinson, in Adams v. Abbott, 2 Vt. 387. See Sawyer v. Middletown, 10 Vt. 238.</p> <p>The facts in this case compare with those in Blalce v. Shaw, 7 Mass. 505, where the court decided that it would be a misfeasance in an officer to deliver up goods, holden by attachment, to the creditor, to be charged in execution by another officer.</p> <p>If the court in this case sustain the decision of the county court, it is not easy to determine the number or character of the vexatious questions which may arise in practice ; we will endeavor to point out a few. 1. Supposing the three executions had been delivered to three separate officers, (for it is a supposable case,) which of the three, or shall each, have the right of demanding the property of the attaching officer, and each creditor have his action, if it be not delivered 1 2. If the property be indivisible, like a horse, how shall it be determined which of the three shall demand, and receive, and sell vthe property ? 3. If the property be divisible, shall a portion be meted out to each officer 1 4. If the property evidently will fall short of satisfying all, who shall be judge in making the division ? 5. And if there shall be a surplus after satisfying the three executions, how would' all or either of them get it back into the hand of Wright, to be applied on Kittredge’s execution, without a repeal of the statute, directing it tobe paid back to the execution debtor? 6. If there shall be a diminution of the property, who shall be made chargable for it ?</p> <p>It does not appear from the bill of exceptions, that Burroughs ever had possession, or had ever seen the property in question, until he forcibly took it from Kittredge, into whose hands Wright had placed it for safe keeping; his possession then was tortious, and would not enable him to sustain his action, even if Wright had lost his lien by the sale of the property ; but he had not lost it when he retook the property, — which was before the sale; but if he had lost his lien, yet the law would not suffer the property to be taken or attached out of his hands before the lien was lost, — and the very act which determined the lien, conveyed the property to the purchaser by a perfect title.</p> <p>Aside from this, we consider the law as settled in this state that property under an attachment may be sold by the execution creditor and debtor agreeing and directing it, — especially if the rights of no one are injured by it; and it is most manifest that the rights of no one were abridged, or in any way affected, by the sale; for out of the sales money Wright reserved enough to pay off the three executions which were forward of Kittredge, and the officer’s fees on the same, and tendered both to Burroughs before suit.</p> <p>The plaintiff having the four executions for collection, and having obtained the possession of the property, had the same right to retain that possession that Wright would have had, had the executions1 been put into his hands to collect. Wright was bound to keep the property for the period of thirty days after the judgments, that the same might be charged in execution either by himself, or by any other officer, to whom the executions might be delivered.</p> <p>The defendants justify the taking and sale of the property on the 5th day of May, 1843, under the execution in favor of Kittredge. The attachment and sale of the property of the debtor, whether on mesne process, or final process, is wholly regulated by statute. There is no such proceeding known in our statute as a sale of property on execution by agreement of parties. Kittredge never attached the property on mesne process and if he justifies the taking and sale of the property under the execution, he must show that the property was advertised for public sale for the period of fourteen days, and that the property was regularly sold on the execution agreeable to law. The sale of the property was not a sale on execution, not being done as the law requires, and in a legal sense was a mere private sale.</p> <p>The defendants contend that the lien of Kittredge was prior to that of the Farmers’ & Mechanics’ Co. Admit this for the sake of the argument, and it does not relieve the defendants. For if Kittredge had a lien prior to that of the Farmers’ & Mechanics’ Company, and he took the property out of the custody of the law upon the strength of a contract with Ramsay, and sold it at private sale, this dissolved his lien, and the lien of the Farmers’ & Mechanics’ Company then had the precedence, and the Farmers’ & Mechanics’ Co. had a right to have their debt satisfied, next after the satisfaction of the debts of Bean, Bacon, and Kelly & Co., for Kittredge’s lien was waived. But what is still farther a conclusive answer to this part of defendants’ argument is, that there were liens on the property, admitted to be prior to that of Kittredge’s, by virtue of which Burroughs had a right to retain and hold possession on the 5th of May, 1843. The defendants committed the trespass on the 5lh of May, 1843, and so soon was the right of action perfect and complete in the plaintiff, and the trespass was not cured by a tender on the 6th of May of the amount of the three first claims.</p> <p>The plaintiff contends that, in actions in form “ex delicto,” there can be no tender. For in torts to personal property, the property has no ascertained value, and the plaintiff may recover in damages beyond the estimated value.</p>

<p>A party, claiming title to land under a will, or other probate proceedings, which are required by statute to be recorded in the town or county clerk’s office, may give the same in evidence, if recorded at any time prior to the time of trial, though not recorded prior to the commencement of his action.</p> <p>The recording, in such case, has relation back to the time when the right accrued under the will, or other proceeding.</p> <p>The devisee of land may maintain ejectment therefor, when it is obvious that no action of the probate court, in ordering a division, or assigning the land, can become necessary, and there is no pretence that the executor has any lien upon the land, or so long time have elapsed that bis lien will be presumed satisfied.</p> <p>Testimony of admissions, made by the defendant in ejectment, who is in possession of the demanded premises, that he entered under the plaintiff’s grantor and by bis permission, and that it had always been understood between them that the plaintiff’s grantor owned the premises, is competent, though made to a stranger, and, if believed, will conclude the defendant from disputing the plaintiff’s title.</p>

<p>Appeal from the court of chancery.</p> <p>The orator set forth, in his bill, that, prior to Dec. 25, 1835, the defendant Donald McDonald was indebted to one Sommers in the sum of $160, the payment of which was secured by a mortgage of certain land of the said Donald ; that Donald applied to the orator to borrow money to pay off said debt; and that the orator did lend to him the sum of $160, which Donald then received, and applied in payment and discharge of the debt due to Sommers, and executed to the orator a note for the sum so advanced by him, payable in January, 1837, and at the same time executed to the orator a mortgage deed of the same land, to secure the payment of the note ¡so executed by him to the orator, — which deed was duly sealed, witnessed, acknowledged and recorded.</p> <p>The bill farther alleged that, afterwards, on the 28th day of February, 1838, the said Donald, having made several payments towards the sum so lent by the orator to him, requested the orator to reckon the payments so made, and ascertain the balance then due upon said note, which the orator held against him ; that the orator did so, and found then due upon said note the sum of $84. 00; that Donald then proposed to give a new note to the orator for said balance of $84, saying that it would be better for the orator to do so, as it would be more convenient, and would make the back interest principal, so that it would draw interest; and that the orator, not supposing that the taking a new note would impair or release his mortgage security, consented to do so, and did give up the first note, executed by the said Donald to him, to Donald, and took a new note executed by him, for the said sum of $84.00, bearing date February 28, 1838, and payable Dec. 1, 1838; but the orator charged that this exchange of notes was procured fraudulently by the said Donald, with the intention of thereby depriving the orator of his mortgage security.</p> <p>The orator farther alleged that the said note for $84 was given wholly for the balance due of the sum advanced by the orator to pay off the Sommers mortgage, and that said note for $84, with the interest thereon, remained wholly unpaid; and that no discharge of the mortgage executed to the orator had ever been entered upon the record of deeds, where said mortgage was recorded, and that the orator had never executed any discharge of said mortgage.</p> <p>The orator farther alleged, that, subsequent to the execution of the mortgage to the orator, Donald had executed a mortgage deed of the same premises to the defendant Gray, to secure a sum of money said to be due from him to Gray; that Gray had lately commenced proceedings to foreclose his said mortgage, to- which proceedings the orator was not made a party ; and that Gray, prior to the execution of the mortgage to him, had often seen and read the mortgage deed to the orator, and was, at that time, town clerk of Ryegate, where the last mentioned mortgage deed was recorded.</p> <p>The orator prayed that the defendants might be decreed to pay to the orator the amount due on the said note for $84, or be forever foreclosed from all title to the said mortgaged premises.</p> <p>The defendant Donald McDonald,, in his answer, admited the existence of the Sommers mortgage, the loan by the orator to him of $160 to pay off that mortgage, the execution of a note by him to the orator for that sum, the execution of the mortgage deed by him to the orator to secure the payment of said note, the payments made thereon, the reckoning the amount due thereon and finding the same to be $84, and the execution of a new note by him to the orator for said balance, — as alleged in the orator’s bill; but he alleged that said new note was given wholly at the request and solicitation of the orator, and with the full understanding between him and the orator that this would operate to discharge the orator’s mortgage security upon the land.</p> <p>The defendant Gray, in his answer, alleged that, on the second day of April, 1839, he lent to the defendant Donald McDonald $153, and took therefor the said Donald’s note, and also a mortgage deed of the premises in question to secure said note, and that he had commenced an action of ejectment against said Donald to recover possession of said premises. He admitted that, prior to the time of taking the said note and mortgage, he had known that the orator had a claim upon the said land by mortgage, and that he had seen the orator’s mortgage recorded, and that the record was not discharged to his knowledge ; but he alleged, that, at the time of his taking said note and mortgage, and previous thereto, “he was informed and fully believed that said mortgage debt to said orator had been settled, and that said mortgage was thereby discharged and that for this reason he lent said money and took said mortgage.”</p> <p>The answers of the defendants were traversed by the orator, but no testimony was taken on either side.</p> <p>The court of chancery decreed, that, for the reasons set forth in the answers of the defendants, the orator was not entitled to the relief prayed for in his bill, and that the defendants be dismissed with costs; from this decree the orator appealed.</p> <p>I. The orator claims a lien upon the land, as against Donald McDonald.</p> <p>1. Because he furnished the money to pay off the Sommers mortgage at the request of Donald; and therefore, in equity, he stands in the place of Sommers.</p> <p>2. Because the giving the new note for the balance of the old note does not, in equity, release the mortgage; the new note is neither a payment, a release, nor a discharge of the debt, and the debt is the substance of the mortgage, or lien, upon the land ; the note is only evidence of the debt, which debt is admitted by Donald. Dana v. 'Binney et al., 7 Vt. 493.</p> <p>The orator charges that Donald fraudulently intended that the new note should discharge the mortgage. This is denied by Donald, and is not proved. So Donald, after the admission before stated, and the denial of the other matters stated in the bill, goes on to say that the note was reluctantly given by him at the orator’s request, they both understanding that the mortgage would thereby be discharged. This is not evidence in the case, because it is not responsive to the bill, — neither to the body of the bill, nor to the interrogatories. The case, then, is, that the parties exchanged the old note for the new one, with no proof of the intentions of either. But the fair presumption is, that the orator did not intend, by taking a new note from his debtor, to discharge or give up his lien upon the land; and there being no discharge of record confirms this view.</p> <p>II. Gray, the other defendant, should be considered as standing on the same ground as Donald. He admits that he fully knew of the orator’s mortgage, had seen it on record, and knew that it was not discharged of record. Besides, it is evident, from his answer, that he not only knew that it was not discharged of record, but that he also did not suppose that it was paid off, but supposed that the changing the notes would vacate the mortgage. If he was right in this, it was scarcely equitable to take a mortgage, not to secure a debt, but to loan money; and if he was wrong in his law opinion, his mortgage must be postponed. The solicitor, who drew his answer, would not have allowed him to use the word “ settled,” if he could have sworn that he had heard that the mortgage had been paid.</p> <p>The case stands on bill and answers; consequently the facts set up in the answers, so far, at least, as they are responsive to the statements of the bill, will be taken to be true.</p> <p>The mortgage debt of $160 was discharged, and the note of $84 was not put in its place by agreement of the parties. So the mortgage is discharged. There must be proof of an express agreement to substitute the new note for the old, in the mortgage, to hold it here. The giving up and cancelling a note, and taking a new one, is, in this state, evidence that the first debt is settled, and is conclusive without more.</p> <p>Gray was informed of the discharge of the first note, and had a right to consider the premises free. He acted in good faith and should be protected.</p>

<p>Debt upon a bond, executed by the defendant to the plaintiff, and conditioned that the defendant should indemnify and save harmless the plaintiff from all debts due from the firm of G. & E. A Webb, then lately dissolved, of whichHhe parties to this action were the members.</p> <p>The declaration assigned the breaches as follows; “ and¡the plaintiff saith, that, at the time of the making said writing obligatory, to wit, &c., said co-partnership was indebted to the firm of White & Reed in the sum of forty dollars, and to the firm of Smith & Dana in the sum of eight hundred dollars, and to the firm of Farnsworth & Phipps in the sum of two hundred dollars, and to Richard Jenness in the sum of seven hundred dollars; yet the said plaintiff saith that the said Edward A. Webb hath not paid the debts of said partnership, due as aforesaid, and hath not indemnified and saved harmless the said plaintiff from the debts aforesaid.” The declaration then averred that the plaintiff had been compelled to pay and had paid the said debts, and that he had .been put to great costs and trouble by reason of his property being attached to secure said debts, and had thereby suffered damage to the amount of one hundred dollars. The defendant pleaded in bar accord and satifaction, and also pleaded an offset.</p> <p>On trial the defendant introduced no evidence in support of his plea in bar. The plaintiff contended, that, by the plea, the breaches assigned in the declaration were admitted, and also the damages, to the amount set forth in the assignment of breaches. But the court decided that the amount of damages was not admitted by the plea, and that the plaintiff must prove the amount of damages he had sustained, unless he would consent to be allowed nominal damages ; to which decision the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant.</p> <p>If the defendant disputed the correctness of the breaches assigned, he should have traversed the same; but pleading merely accord and satisfaction, he admitted the facts alleged in the assignment of breaches, and the court erred in afterwards compelling the plaintiff to prove the same. Post Master General v. Cochran, 2 Johns. 414. Munroe v. Allire, 2 Caine 328. 1 Ch. PI. 606, 614. Dudley v. Sumner, 5 Mass. 438. Ayer v. Spring, 10 lb 80.</p> <p>The decision of the court was in accordance with the provisions of sections 42, 44, and 45 of the statute. [Rev. St. p. 165.] By the defendant’s plea the execution of the bond and a breach thereof are alone admitted. The plaintiff’s declaration contained a general assignment of breaches, and it is manifest that the defendant’s plea can have no greater effect, in reference to the proof to be adduced by the plaintiff, to entitle him to recover damages, than a demurrer would have. In either case the plaintiff must show his images under the statute. If the plaintiff sought merely to recover judgment for the penalty, and did not seek for damages, the case might be entitled to a different consideration.</p>

Book Account. The plaintiff’s account was for a quantity of salts of lye, and amounted, as allowed by the auditor, to $309.87.

Assumpsit. The declaration counted upon two promissory notes, — one for $8.00, dated Dec. 29, 1838, and the other for $3.75, dated March 1, 1841. The declaration contained also a count for money had and received to the amount of twenty dollars. The action was commenced before a justice of the peace.

<p>If an order of removal of a pauper be regularly made, persons assisting the pauper to remove voluntarily, within the time prescribed by the order, are not liable to the penalty imposed by statute upon those who bring a poor person into a town with intent to charge such town with his support.</p> <p>No omission, on the part of the town procuring the order, of subsequent proceedings rendered essential by statute, will make that a ground for imposing the penalty, which was not such at the time it was done.</p>

<p>Audita Querela. The plaintiffs alleged in their writ, that the defendant sued out a trustee process against one Winchester as principal debtor, declaring on a note due from Winchester to him, and summoned therein the plaintiffs, as trustees of said Winchester, that such proceedings were had that the justice, before whom said trustee process was made returnable, rendered judgment thereon in favor of the defendant against the plaintiffs, as trustees, for the sum of $23.15 damages, and $3.45 costs; and that the defendant had taken Out an execution thereon, running directly against the plaintiffs, without naming them as trustees, and describing the judgment as rendered for $23.82 damages, and $3.45 costs; and that said execution had been levied upon their property; and they prayed that said execution might be vacated.</p> <p>Upon the entry of the case in the county court the defendant filed a motion to dismiss the same, assigning, as cause, that, by law, a trustee had no right to sue out an audita querela, — that that right is, by statute, given to the parties, alone, to a case, — and that a trustee is not a party to the suit, within the meaning of the statute. This motion the court overruled ; to which the defendant excepted.</p> <p>The defendant then pleaded the general issue, and insisted, on trial, that the allegations in the plaintiffs’' writ, if proved, were not sufficient to entitle them to recover ; but the court, finding the allegations proved, rendered judgment for the plaintiffs; to which the defendant also excepted,</p> <p>In overruling the motion to dismiss, the court below erred. The law requires that the parties to an audita querela should be the same persons who were parties to the former proceedings, or suit, out of which grew the judgment,, or execution, sought to be vacated by such audita querela; and the plaintiffs in this audita querela were neither plaintiffs nor defendants in the former suit, nor were they in any manner by law recognized as parties to the suit. Rev. St. 222, § 6; 177, § 1. 1 Aik. 321. 3 BI. Com. 405. 2 Petersdorf’s Abr. 730. 1 Yt. 496. 12 Vt. 59. 5 Vt. 194, 195, 199. Rev. St. 196, § 57. 13 Yt. 122. 14 Vt. 331.</p> <p>Upon the trial in the county court, upon the merits, the court erred in ruling that an execution for $23.82 damages, on a judgment for $23.15 damages, could be- vacated' by audita querela. The error in the execution, if any, was the error, or act, of the justice issuing the execution, over which the party had no control, and therefore can only be remedied upon motion. 3 Yt, 324. 1 Yt. 437.. 1 Aik. 366. 10 Yt. 90,</p> <p>1. This is a direct execution against these defendants, as principal debtors; such an execution is no where provided for by law. The 44th section, page 195-, of the Revised Statutes, provides' for an execution against the trustee in one case, which- is the- only case-where execution could issue against the trustee. A construction of this statute would’ not seem, even in the case-provided for, to justify such an execution as the one issued in this case; '</p> <p>2. The execution issued-as on a judgment wherein R. J. Fleming is plaintiff and Charles Wilson and David. F. Wilson defendants, for $23,82 -damages and $3,45 costs. Now what is there to show that this execution issued on the judgment Fleming v. Winchester, and the Wilsons trustees'? The execution does not follow the record in the parties, — neither is it for the same sum in damages. The writ of audita querela is the proper remedy, to redress a wrongful act of the party in obtaining an improper execution. Little v. Cook, 1 Aik. 366. Phelps v. Slade, 13 Vt. 195. The only question, then, is, whether a party can take out an execution, not agreeable to the record in the parties, and for a larger sum in damages than the verdict. The jury are the only tribunal to assess damages, and, wlien the damages in the execution exceed those found by the verdict, the execution is void.</p>

<p>Audita Querela brought to this court. The complainants alleged, in their complaint, that an action had heretofore been commenced against the present defendants in the name of Gray, Drew & Co.; that the defendants pleaded, in abatement of the writ in said action, that there was not, at the lime of the commencement of said action, any such person in existence as Gray, Drew & Co.; that the complainants filed a replication to said plea, setting forth that Gray, Drew & Co. were the said plaintiffs Dan Gray & Co. ; that said replication, on demurrer thereto, was by the supreme court adjudged insufficient; that judgment was rendered for the defendants in said action on the defendants plea, and upon the ground that the plaintiffs were not parties to the suit, — and profert was made of the record in the former case; and that the defendants had taken out an execution on said judgment, for their costs in said action, against the complainants, and had caused the same to be levied upon their property.</p> <p>The defendants demurred to the complaint.</p>

<p>Trover, for a quantity of hay, &c. Plea, the general issue, and trial by jury.</p> <p>On trial, the plaintiff having closed the evidence upon his.part, the defendant proved that the hay sued for, together with other property belonging to the plaintiff, consisting of several cattle, &c., was taken by him, as deputy sheriff, by virtue of two writs of attachment against the plaintiff; that the attachment was made in the absence of the plaintiff, and the property was moved by the defendant to the barn of one Merrill, and there kept, and that the hay attached was fed out to the cattle attached; all which the jury found was done by the consent of the plaintiff’s wife and by virtue of an understanding had between her and the defendant.</p> <p>It appeared' that the plaintiff, at the time of the attachment, had been absent from home about two months, and was then expected at home immediately. The family left at home by him consisted of his wife and his minor sons. It did not appear that any other person was left, in his absence, to superintend his affairs. It also appeared that the plaintiff returned home in about one month after the attachment, and that he then refused to have any more of the hay fed out under the aforesaid arrangement.</p> <p>The court charged the jury that the wife of the plaintiff, in his absence, had authority to make such arrangements with the defendant, under the circumstances, and that such arrangement required no ratification by the plaintiff, in order to justify the 'defendant in feeding out the hay, as aforesaid, provided the jury were satisfied, that, under all the circumstances, such arrangement was for the benefit of the plaintiff.</p> <p>The jury returned a verdict for the defendant. Exceptions by plaintiff.</p> <p>The plaintiff’s wife, during his absence, having the care of the property in question, had authority to make the arrangement with the defendant, mentioned in the bill of exceptions, and the plaintiff was bound by it. Stone v. Carr, 7 Petersdorf 36, 3 Esp. R. 1. Rawlyns v. Vandyke, 7 Petersdorf 39, 3 Esp. R. 250. Church v. Landers, 10 Wend. 79. 1 Sw. Dig. 31, 327. 1 Selw. N. P. 219. Reeve’s Dom. Rel. 79, 80. Str. 345. 1 Com. on Cont. 163. Ld. Kenyon in 1 Esp. R. 142. 10 Johns. 46, 381.</p>

<p>Book Account. On the hearing before the auditor the plaintiff presented an account for a colt, charged at $30, and for other articles, to the amount, in the whole, of $263, in reference to which the auditor reported as follows.</p> <p>In June, 1837, the parties entered into an agreement, by which the plaintiff was to take the defendant’s son, then about twelve years of age, and keep him to the time of his majority, and furnish him with suitable board and clothing, and give him, when he became of age, two suits of clothes and $100 in money, besides a certain colt of the value of $30, — which colt was accordingly delivered by the plaintiff to the defendant in the fall of 1837, and is the same charged in the plaintiff’s account. The boy lived with the plaintiff until July 13, 1840, when, without any reasonable cause, and at the instigation, or by the permission of the defendant, his father, he left the plaintiff’s employment, — the defendant then and still insisting that he had a right to take the boy away in case of dissatisfaction.</p> <p>The auditor farther reported that all the articles charged in the plaintiff’s account were furnished and delivered by the plaintiff to the defendant and his son in fulfilment of the aforesaid contract on his part; — and that none of said articles were charged, nor intended to be charged, upon the plaintiff’s book, until after the boy left the plaintiff in July, 1840.</p> <p>The county court, upon these facts, rendered judgment for the defendant; to which the plaintiff excepted.</p> <p>The contract between the parties, as shown by the case, was subject to a contingency, and the contract was wholly rescinded by the defendant previous to the commencement of this action. The contract, then, not being open and subsisting, the plaintiff was entitled to maintain this action. And see Slason v. Davis, 1 Aik. 73.</p> <p>1. The plaintiff’s remedy, if he has any, is by an action for damages for the non-performance of the contract;' — but the action of book account will not lie for a breach of a special contract. 1 Sw. Dig. 582. Miller v. French, 1 Aik. 101. Fry v. Slyfield, 3 Vt# 249. Blanchard v. Butterfield, 12 Vt. 451. Smith v. Smith, 14 Vt. 440.</p> <p>2. The plaintiff delivered these articles to the defendant in part performance of his contract. The right to charge them on book did not exist at the time of their delivery, and cannot be acquired by the happening of any subsequent event. Slason v. Davis, 1 Aik. 73. Nason v. Crocker, 11 Vt. 463.</p>

<p>Debt on a bond'dated Jan. 25, 1833, executed'to the plaintiff by one Alanson Seaver, as principal, and by the defendants as sureties, and conditioned that the said Alanson should support and maintain. Martha Seaver, mother of the plaintiff and of the said Alanson, and also that the said Alanson should save harmless the plaintiff from all charges and expense in providing for the support of the said Martha by virtue of an obligation entered into by the plaintiff, July 11, 1821, with Daniel Seaver, father of the plaintiff and of the said Alanson, and which was conditioned for the support of the said Daniel and Martha during their and each of their natural lives. The defendant pleaded non est factum, general performance, and non damnificatus; on which pleas issue was joined to the court.</p> <p>On trial, the plaintiff gave in evidence the bond declared upon, and also the bond of July 11, 1821, therein referred to, and also “ proved his expenditures in the support of his mother, the said Martha Seaver, after the execution of the bond declared upon, and until her death in October, 1840.”</p> <p>The defendants proved, that, shortly after the death of the said Daniel Seaver, which was in 1831, the bond of July 11, 1821, was in the plaintiff’s possession, and that he had ever since retained it; — that Alanson Seaver, being administrator upon 'the estate of Daniel Seaver, demanded said bond of the plaintiff, claiming that it was the property of the estate; — but that the plaintiff evaded or refused said demand, and did not surrender the bond.</p> <p>The defendants also introduced evidence tending to prove that Daniel Seaver, towards the close of his life, became uneasy lest the bond of July 11, 1821, should occasion trouble and litigation among his children after his death, and that he went to Samuel C. Crafts to have the bond so fixed as to prevent such trouble, and that the said Daniel made declarations, after that, to the effect that he had discharged the bond and had delivered it to the plaintiff; — but the evidence did not prove, to the satisfaction of the -court, that the bond was any farther discharged, than by appending to it a receipt signed by said Daniel, acknowledging that certain payments were made, which, by the said bond, the plaintiff was bound to make to the other children of the said Daniel, nor that the bond was ever surrendered by the said Daniel to the plaintiff.</p> <p>Upon these facts the court decided that the plaintiff was entitled to recover, and rendered judgment in his favor for the amount of the expenditures proved by him. Exceptions by defendants.</p> <p>The question involved in this case is, whether it was not necessary for the plaintiff to show a request by Alanson Seaver to him to provide, or a legal necessity of his providing, for his mother, in order to charge Alanson, and more especially his sureties, on the bond in suit. The object of the bond-was, unquestionably, to secure the plaintiff against damages consequent on a legal liability. Voluntary charity, or voluntary provision made by the plaintiff, without legal compulsion by suit on his old bond, or without being charged under the statute provisions, or without showing any request by the plaintiff, or any danger of a suit being brought against him, — :in short, without any proof whatever, except that he had made provision for his mother, — is not sufficient to render the defendants liable. It was, at least, incumbent on the plaintiff to show that his mother called upon him for necessaries, and that she was destitute, and in need of them.</p> <p>As to sureties, it is said by Boxler, J., in Straton v. Past all, 2 T. R. 366, — “But, as against a surety, the contract cannot be carried beyond the strict letter of it.” The defendants’ contract is, in substance, a contract of indemnity. Douglass v. Clark, 14 Vt. 177. The true construction of this is illustrated by the case of Ferris v. Purdy, 10 Johns. 359. The defendants never contracted to put the old bond out of existence, but only that the plaintiff should not, in consequence of its continued existence, come under any legal necessity to be at expense for his mother’s support.</p> <p>From the bill of exceptions it is difficult to understand what questions can be raised, as all the facts in the case are found by the court in favor of the plaintiff. An examination of the bond of July 11, 1821, is not indispensably necessary in order for the plaintiff to recover on the other ; — but if it were, the facts necessary to sustain a recovery by the plaintiff are found. And it distinctly appears that that bond was binding upon the plaintiff until the death of Martha Seaver. The plaintiff would be bound, both by that bond and by law, to provide for his mother. In either point of view, then, the bond on which the suit is predicated would bind the defendants.</p>

<p>It is not necessary that a written submission to arbitrators should contain a special agreement by the parties to abide the award; — if the parties agree to submit, and actually do submit, their differences to arbitration, and an award is made in the premises, an agreement to abide the award is implied.</p> <p>Where a controversy between proprietors of adjoining lands, in reference to their dividing line, has been submitted, to arbitration by them, it is no objection to the award made by the arbitrator, that he has detailed the means by which he came to the conclusion he did in reference to its location.</p> <p>In such case, the arbitrator having located the dividing line so as to give to the plaintiff a strip of land previously fenced and occupied by the defendant, and the defendant, after the publishing of 'the award, having persisted in his claim to the land, and refused to surrender it to the plaintiff, it was held that this constituted a sufficient possession by the defendant to entitle the plaintiff to maintain ejectment for such strip against him, notwithstanding the actual posssession was in a tenant of the defendant, who claimed said strip in his own right, — it not appearing that the defendant had ever given notice to the plaintiff that the tenant was in possession of the strip independent of the defendant, or that the plaintiff ever had any notice of that fact.</p> <p>The owners of adjoining lands, each acknowledging the sufficiency and validity of the title by which the other holds his land, may bind themselves by a submission in writing, though not under seal, as to the location of the dividing line between them; and, if an award be duly made and published in pursuance of such submission, locating the line, each party to the submission will be estopped from denying, in an action at law, that the line, as thus located, is the line between them. [And in this case no subsequent confirmation of the award, or recognition of its validity, by the defendant was shown.]</p>

Audita Querela. Plea, the general issue, and trial by the court.

This was a petition to the county court, under the statute, to be relieved from a judgment, rendered by a justice of the peace against the defendant by default, and to be allowed a trial, as upon an appeal, — alledging that the petitioner was deprived of his day in court before the justice by accident.

Replevin for two horses, distrained and impounded by the defendant on lot No. 12 in Johnson. The defendant avowed, justifying the taking and impounding the horses damage feasant on said lot No. 12.

<p>Book Account. The auditor appointed in the case reported that the plaintiffs’ account, as presented before him, was for the quarter bills of the defendant, while a student in college, — including tuition, room, rent, use of library, repairs, sweeping, ringing the bell, and fines ; and in reference to it he reported the following facts.</p> <p>The defendant became a member of Middlebury College in Aug. 1836. He was then a minor, about fifteen years of age, and was sent by his father, who resided in the state of New York, to join the college, and was there supported by his father until his father’s decease, which took place in August, 1837. The defendant continued to receive instruction at college for about a year after his father’s decease, during which time he was furnished with the means for his support from the estate of his father. He never took a formal dismission from the college, and it did not appear that he ever informed the officers of his intention to leave. The President of the college had correspondence with the father of the defendant, after the defendant became a member of the college, and* was informed of the death of the defendant’s father in the fall of 1837. It did not appear that the father of the defendant had ever assumed any express liability to the college, or that the defendant brought any line from his father at the time he came to enter college.</p> <p>Upon these facts the auditor reported that he disallowed the plaintiffs’ account, on account of the infancy of the defendant at the time the account accrued. The county court accepted the report of the auditor, and rendered judgment for the defendant; to which the plaintiffs excepted.</p> <p>1. The plaintiffs’ account is for necessaries furnished by the plaintiffs to the defendant on his request, and for which he is holden to pay. Lord Coke includes among necessaries, for which an infant may bind himself by contract, “ good teaching and instruction, whereby he may profit himself afterwards.” Co. Litt. 172. 3 Bac. Abr. 593-5.</p> <p>2. Although, as appears by the report of the auditor, the defendant was sent to the college by his father, and furnished with funds for his expenses by him, it also appears that the father never assumed any liability to the college for his son, or even sent a line by him when he came on to enter the college. See 1 Swift’s Dig. 52-3.</p> <p>3. The living at home and being furnished with necessaries by the parent, which exempts the infant from liability for necessaries, does not apply where the infant goes abroad, and especially to another state, or country, for the purpose of education. It is his being domesticated in the family of the parent, and under his immediate supervision, which exempts the infant from liability for necessaries. Angel v. McLellan, 16 Mass. 28. Crantz v. Gill, 2 Esp. 471. 2 Kent’s Com. 239. 1 Com. on Contracts 157, 166. Wailing v. Toll, 9 Johns, 141. 3 Bac. Abr. 595.</p> <p>1. It is contended on the part of the defendant that the plaintiffs’ account is not for “necessariesIt is conceived that a.college education has never been included among the “ necessaries” for which a boy of fifteen, entirely destitute of means, would be legally liable. The question of what are, or are not, necessaries must be entirely a question of fact, dependent upon the circumstances and condition in life of the minor. Reeve’s Dom. Rel. pp. 227-234. 1 Com. on Cont. 156-8. Maddox v. Miller, 1 M. & S. 738. Ford v. Fothergill, 1 Esp. R. 211. 8 T. R. 578. Bac. Abr., Infant. In this case it is manifest from the report that a college education was grossly inconsistent with the circumstances of the defendant, being, as he was, entirely destitute of means, or expectations. Especially is it difficult to conceive on what principal “fines” were necessary for the defendant; — they might have been for the college.</p> <p>2. Even if the bills charged in plaintiffs’ account can be considered “ necessaries,” yet the defendant, as a minor, can not be made liable for them while living with, and being maintained by, his father; 3 Com. Dig., Tit. Infant, 545, 548; I Com. on Cont. 156-7; Law v. Wilkin, 6 Ad. &. Ellis 718 ; 9 Johns. 141 ; Angel v. McLellan, 16 Mass. 31; Cook v. Deaton, 3 C. & P. 114; even without notice to plaintiffs, but especially if there is notice to the plaintiffs that such is the case. 2 Stark. Ev. 727. Bainbridge v. Pickering, 2 W. Bl. 1325. Chit, on Cont. 114,118. He who trusts an infant is bound to inquire whether he is supplied by his parents, or friends. Story v. Pery, 4 C. & P. 526. Cook v. Deaton, 3 C. & P. 114. That such were the facts is manifest from the auditor’s report.</p>

<p>Where the defendant had, in a suit in his favor against a third person, caused the property of the plaintiff to be attached as the property of such third person, and the plaintiff had commenced an action of trespass therefor against the attaching officer, and the defendant covenanted absolutely that he would pay to the plaintiff the value of the property so attached, if the plaintiff would discontinue the suit against the officer, and the agreement contained also a stipulation that the value of the property should be ascertained by the appraisal of certain persons agreed upon, it was held that such stipulation was not in the nature of a submission to arbitration, but an incidental provision in the agreement, designed to facilitate its execution on the part of the defendant, and that, the plaintiff having discontinued his suit against the officer, and the defendant having prevented the appraisal from being made as stipulated, the plaintiff, in an action upon the defendant’s agreement, was entitled to recover the value of the property attached, and to prove its value by common law evidence.</p> <p>And it was held that the plaintiff’s right to recover, in such case, was not affected, though the agreement contained a stipulation that the appraisal should be made by a day specified, and the arbitrators, at the defendant’s request, continued the appraisal from that day to one subsequent; — and that the plaintiff might prove such request by parol evidence.</p> <p>And a revocation of the powers of such appraisers, made in writing and signed by the defendant, and by him delivered to the appraisers at such subsequent day, though not under seal, — the appraisers, refusing, in consequece thereof, to proceed farther with the appraisement,— was held sufficient to entitle the plaintiff to commence his action upon the defendant’s covenants.</p> <p>If the consideration for a covenant is set forth in the declaration in the words of the agreement containing the covenant, there can be no variance.</p>

Trover for certain copies of book accounts. Plea, the general issue, and trial by jury.

This was a complaint for costs. It was admitted that Scofield commenced a suit against Clark in February, 1842, and that the writ was made returnable at the May Term of the county court, 1842; that the writ was served on Clark by arresting his body; that Clark appeared in court to answer to the suit; that, subsequent to the service of the writ, Clark filed his petition in bankruptcy, and was declared a bankrupt previous to the term at which the writ was made returnable; that…