Volume 17 — Vermont Reports

This was a bill brought to set aside a contract made between the parties for an exchange of lands.

Book Account. The action was commenced before a justice of the peace, and came to the county court by appeal: an auditor was appointed, who reported as follows. The plaintiff presented an account against the> defendant for one month’s labor, charged at $10,00, and for his board during the month, charged at $6,45.

Trespass on the case for damages to the plaintiff’s horses and carriages, resulting from the insufficiency and want of repair of a highway in Royalton. Plea, the general issue, and trial by jury. On trial it appeared, that, at a session of the Supreme Court at Chelsea, in the county of Orange, in March, 1837, a highway, duly surveyed and laid out by a committee appointed by that court, was established in the towns of Royalton, Bethel and Randolph.

Scire Facias upon a recognizance entered into by the defendant upon the review of a cause in favor of the present plaintiff against Stephen Cummings and Edward Manning. Trial by the court. On trial it appeared, that, at the time the plaintiff recovered the judgment, from which the review was taken, the said Cummings and Manning were entirely destitute of property, and have ever since so remained.

This was an action of debt, brought to recover the penalty given by statute for being party to a fraudulent conveyance. The action was commenced subsequent to the time when the Revised Statutes came in force, but the cause of action accrued prior to their enactment.

These were bills brought to foreclose the equity of redemption of mortgaged premises, and, the material facts in each case being the same, they were heard together upon bills and answers. .

In this case the orator alleged in his bill that he had been duly-appointed administrator upon the estate of Sylvester Edson, deceased, who died May 29, 1839, and that, at the time of his decease, and for some years previous thereto, the said Edsoh was greatly indebted, and to an amount much beyond his ability to pay; that all his visible property had been, attached by his creditors,-but that he still retained, and kept concealed, much personal property, which he should have…

In this case the facts alleged in the bill in reference to the indebtedness and the fraudulent intent and practices of the orator’s intestate, Sylvester Edson, and the insolvency of his estate, were substantially the same as detailed in the preceding case, — Allen, Adm’r, v. Mower, ante, p. 61, — and the orator alleged that this defendant had, with like intent, just previous to the first day of January, 1839, received from the intestate divers promissory notes, to a large…

Trespass, brought to recover for a quantity of wheat and oats in the straw. Plea, the general issue, with notice of special matter, and trial by the court.

Assumpsit for money paid, laid out and expended. Plea,, the general issue, and trial by the court.

Teesfass for a quantity of hay and grain in the straw. Plea, not guilty, and issue to the court. The case was tried upon the following statement of facts'agreed to by the parties. “The hay and grain mentioned in the plaintiff’s declaration was, on the 8th day of January, 1842, situated in the barn ofWm. Jewell, in Guildhall, about five miles from the town clerk’s office in said Guildhall, and was the property of said Jewell.

Assumpsit on a promissory note for $548,90. The defendant pleaded the statute of limitations and a plea in offset The plaintiff replied a new promise to the plea of the statute, and the statute of limitations to the plea in offset, and the respective issues were joined. At the first trial there was no evidence offered in support of the plea in offset, and on that branch of the case there was no hearing. The plaintiff recovered judgment for the amount of the note and interest.

In the course of the trial, the defendants offered the deposition of Sarah Warren, which was objected to by the plaintiff, for the reason that it appeared in the caption of the deposition that no notice was given to the adverse party, and it was not certified that the adverse party Jived more than twenty miles from the place of caption, as required by the laws -of the -state -of New Hampshire, where the •deposition was taken, -in order to entitle the party to take the same…

After the entry of the appeal in this court a motion to dismiss the bill was filed by the defendant, because, as he alleged the matter in controversy did not exceed fifty dollars.

<p>A recital, in the deed of a collector of a land tax, that “ he has in all things ' pursued the directions of the statute,” is not •prima jade evidence of such fact; but the person claiming under such deed must sho.w that every substantial requisite of the law was complied with.</p> <p>When no possession has been taken under such deed, no presumption in its favor can be claimed from its antiquity, — but rather the contrary.</p> <p>If the warrant to such collector mis-recited the time at which the statute was enacted, by virtue of which the tax was levied, the warrant is v.oid, and the collector’s deed of land sold under it will convey no title.</p>

Trover for a wagon, two horses, several head of neat cattle, and a quantity qf hay. Plea, not guilty, and trial by jury.

Assumpsit on a promissory note, dated in November, 1839, whereby the defendant promised to pay to the plaintiff, by the middle of February next following, 125 good merchantable sap buckets, or 820 worth of leather, to be delivered at the defendant’s shop in Troy.' Plea, the general issue, and trial by jury.

- This was a declaration for betterments* based upon a previous recovery by the present defendant, in an action of ejectment in his favor against the present plaintiff.! Plea, the general issue and trial by jury.

This was an appeal, by the defendant, from the judgment of a justice of the peace, and the appellant neglected to enter the appeal, at the term to which it was taken. The plaintiff thereupon entered the action in court for an affirmance of the judgment, whereupon the defendant moved that the action be dismissed.

Audita Querela. The defendant, in the county court, filed a motion to dismiss, because, as he alleged, the judge who allowed and signed the writ took no security by way of recognizance. 'There was a minute of recognizance upon the writ, signed by the Judge, in these words; — “Ira Colburn, Charles A. Garland and ‘ Charles Sisco recognized to the defendant, conditioned for the * re-delivery of the said Hiram Sisco to the custody of the officer ‘ having the same, if the same…

Trespass quare clausum fregit. Plea not guilty, and trial by jury- The plaintiff claimed title to the premises in question, under a vendue deed to him from Luther Kidder, collector, dated June 6th, 1834, and, in support of said deed, offered in evidence an act of the legislature, passed October 31st, 1831, granting a road tax, of which tax said Kidder was collector, and an act passed November 3d, 1831, annexing part of Belvidere to Eden; also,said Kidder’s sales-book, with…

Book Account. The action came to the county court, by appeal, judgment to account was rendered, and an auditor appointed.

This action came into the county eouvt by appeal. The original declaration, used before the justice of the peace who tried the case, was in these words; “In a plea of the case, For that whereas, on ‘ the sixth day of September, A. D. 1840, at Norwich, the said ‘ Landrus Waterman, plaintiff, was possessed of a certain bay mare, ‘of the value of one hundred dollars, of the proper goods of him, ‘the said Waterman, whereby he received benefit and profit; yet ‘ the said David…

Trespass on the Case against the defendant, as sheriff of Windsor County, for the default of his deputy, Ephraim Ingraham, Jr., in not attaching certain property, which he was directed by the plaintiffs to attach, as the property of one John H. Leland, on a writ of attachment in their favor against said Leland. Plea, the general issue, and trial by jury.

Assumpsit upon a promissory note executed by the defendant, brought by the plaintiff as indorsee of the note, and which came to the county court by appeal.

The appeal was taken to the December Term, 1842, of Orange county court, and at that term the plaintiffs appeared, and moved to dismiss the appeal, assigning, as cause, that the order of removal, in the case, was made on the 12th day of May, 1842, and that a true copy of the order, certified and attested by the justices making the same, was left with the then overseer of the poor of said town of Westford “within thirty days next after the making of the order, to wit, on the…

Indictment for being accessory to the stealing of a quantity of wool.

Indictment in four counts, the first and third of which were for uttering, passing and giving in payment counterfeit bank bills, and .the second and fourth for having in possession such bank bills with intent to pass them.

Indebitatus Assumpsit for money had and received, and for ■money paid, laid out and expended. Plea, the general issue, and trial by the court.

Ejectment for a lot of land in Westford. Plea, the general issue, and trial by jury.

Trover for a note, describing it, and for a horse.. Plea, the general issue, and trial by jury. On trial there was found a fatal variance between the note offered in evidence and the declaration, and the trial proceeded as to the horse alone.

The allegations in the orator’s bill, which it becomes material to detail, were, in substance, that, prior to March 13, 1837, the defendant had received from the orator a quantity of hay, and that a dispute had arisen between them relative to it, — the defendant claiming that the orator had agreed to purchase the defendant’s title to a certain piece of land, and that the hay was delivered in part payment therefor; that on the 13th day of March, 1837, the parties agreed to…

Assumpsit for money had and received. Plea, the general issue.

Trustee Process. The trustee Woodruff disclosed that he was a deputy sheriff, and as such received for collection two executions upon judgments rendered in favor of the defendant Hicks, and that he collected, the amount due thereon during the life of the executions, being in the whole $459,27, and that he held that sum in his hands, belonging to the said Hicks, at the time of the service of the writ in this action upon him.

Trustee Process. The disclosures in this case were the same as in the case in favor of Samuel B. Hurlburt against the same defendants and the same trustees, ante page 193, except that the trustees H. R. & J. J. Beardsley now disclosed that they had been adjudged trustees in that suit for the whole amount in their hands, viz. 8130, and that the said sum was insufficient to satisfy the plaintiff’s claim in that suit. , The county court rendered judgment against the trustees,…

<p>[In Chancery.]</p> <p>In the case of a bond, conditioned that the obligor shall execute to'the obligee a deed of certain premises upon payment, by a day named, of a specified sum of money and the interest thereon, it being understood between the parties before and at the time of the execution of the bond that the obligee had an equitable interest in the premises, and a right to redeem them by payment of the amount of the obligor’s interest in them, and the obligee remains in possession of the premises, paying no rent, and he neglects to make the payment by the day named in the bond, a court of chancery will allow him to redeem by payment at a subsequent day, upon application made in proper season.</p> <p>But if the obligee, having failed to make payment by the day named in the bond, surrender the possession of the premises to the obligor, and neglect to bring, nis bill to redeem for nearly six years, the court will grant no relief.</p> <p>Where to a clause for re-entry, in a lease, for non-payment of rent, there is attached a condition that the landlord shall, before entering, give to the tenant in arrear thirty days notice, the landlord has no right to re-enter, unless he give such notice. The right to re-enter for non-payment of rent is not incident to the estate of the lessor at common law, but must be reserved by deed,, and all the conditions, or stipulations, annexed thereto must be strictly followed.</p> <p>Where, in such case, the tenant conveys his interest in the premises to a third person, but still retains the possession, a judgment obtained against him by the landlord in an action of ejectment for non-payment of rent, obtained without giving any notice to the grantee of the tenant, can have no elfect, as against such grantee; nor will any subsequent lease, or deed, executed by the landlord, convey any legal title as against him.</p> <p>But where the grantee of the tenant, in such case, permitted the tenant to retain the possession of the premises, and the tenant, by means of such possession, obtained a credit with the defendant, and procured the lessor to convey the premises to the defendant by perpetual lease, and the defendant executed to the tenant a bond, conditioned for the conveyance of his title to the tenant on payment of a certain sum by a day named, and the tenant, failing to make payment by the day named in the bond, surrendered the possession of the premises to the defendant, who entered, and retained the possession, claiming an absolute right thereto by virtue of the lease to him from the landlord, and the orator, who was assignee of the tenants bond, and who had also purchased the title of the tenants grantee, brought his bill to assert his right within six years from the time the defendant took possession of the premises, the court held that his right was not affected by the lapse of time, hut that they would not allow him to redeem, without payment to the defendant of the sum originally advanced to the tenant by the defendant upon the credit of the premises, as specified in the condition of the bond ; and the court refused to compel the defendant to account for the rents and profits during the time he had been in possession, and also refused to allow him interest upon his money during that' time.</p> <p>And this relief was granted to the orator, notwithstanding the deed from the tenant’s grantee to the orator was executed at a time when the defendant was in adverse possession of the premises, claiming title thereto by virtue ófhis lease.</p> <p>In this case the court refused to allow costs to the defendant, — he having contested the orator’s right to redeem, — and they also refused to allow costs to the orator, as he had not, l^efore bringing his bill, actually tendered to • the defendant the amount due to him.</p>

Ejectment for fifty acres of land in St Albans. Plea, the general issue, and trial by jury. This was the action at law alluded to in the opinion of the court in the suit in chancery, Smith v. Blaisdell et al., ante, page 199, and the premises in question in the two cases were the same, and all the facts material to the right of revovery of the plaintiff in this case .are sufficiently detailed in that case.

Book. Account; the action was brought to the county court, judgment to account was rendered; and an auditor appointed. The auditor reported that the plaintiffs’ account, as presented before him, consisted of charges for merchandize, which the defendant purchased of the plaintiffs upon a year’s credit.; and that no portion of the account had become due at the time the action was commenced, but that it had all become due prior to the hearing before the auditor.

Debt upon a recognizance. The plaintiffs alleged that they recovered a judgment, in their favor, against one Hiel Heath, on the 12th day of February, 1842, by the consideration of Norman Tupper, Esq., a justice of the peace, for $42,20 damages and $1,25 costs of suit, from which judgment the said Hiel Heath appealed; and the entering of the recognizance for the appeal was alleged in these words; — “and the said Hiel Heath, as principal, and the said * James Heath, defendant,…

Trustee Process. The action was referred, and the referee reported that Daniel Wright was not trustee. In reference to Samuel S. Wright he reported, in substance, as follows.

Ejectment upon mortgage. It was conceded that the defendant was in possession of the mortgaged premises, and that he executed the notes described in the condition attached to the mortgage deed.

Book Account. The only question which arose in the case was in reference to one item bf $45.70 in the defendant’s account,, in reference to which the auditor reported as'follows. In July, 1841, J. & A. H. Miller, then partners in business, entered into an agreement with the defendant, by which they were to pay him, of the wages of one Otwin Milly, who was then in their employment, five dollars per month in work out of their shop.

<p>Where items were charged in an account, which were not legitimate and proper subjects of a charge on book, and were stricken out before the commencement of the action upon the account, — which was brought before a justice of the peace, — it was held that the jurisdiction of the justice was not thereby affected.</p> <p>And if the defendant’s account contain charges which accrued in payment of the items thus stricken from the plaintiff'’s account, it will be proper for the auditor to deduct such items from the amount of the defendant’s charges of that character, and apply the balance, together with the remainder of the defendant’s account, in offset to the plaintiff’s account; — and the appellate jurisdiction of the county court will not be affected by the plaintiff’s claiming that such deduction should be made.</p>

Account. The parties to this action had formerly been partners in the business of purchasing and selling wool, &c., under the name of the “ Wool Co.,” and this action was brought to liquidate and adjust the partnership accounts. Judgment to account was rendered in the county court, and auditors were appointed.

<p>An agent, who makes a promise, and who does not conceal his agency, nor exceed his authority, is not liable to an action upon such promise.</p> <p>A declaration, counting upon a sale made by the plaintiff to the defendant, and a promise thereupon made by the defendant to the plaintiff, is not sustained by proof of a sale made by a third person, and a promise by the defendant to such third person, for the benefit of the plaintiff. Where a promise is made to a third person for the benefit of the plaintiff, the declaration must state it to have been made according to the fact.</p> <p>A contract entered into to indemnify a sheriff for a past neglect is not void for illegality.</p> <p>The legal interest in a contract is in the person to whom the promise is made, and from whom the consideration passes, and be is the person who must bring the action upon such contract, — as held in Pangborn v. Saxton, XI Vt. 79, and Cramplon v. Ballard, 10 Vt. 251.</p> <p>The case of Dutton el ux. v. Pool, 2 Lev. 210, 1 Ventr. 318, T. Raym. 302, commented upon and explained.</p>

Audjta Querela. The complainant alleged that he was an inhabitant of this state, and that the defendant had recovered a judgment against him in an action founded upon a contract entered into subsequent to the first day of January, 1839, and that the defendant “ without right, and contrary to the provisions of the statute law of this state,” took out an execution upon such judgment, directed to any sheriff, &e., and commanding the sheriff, for want of goods, chattels, or…

Trespass on the case for speaking slanderous words. Plea, the general issue, and trial by jury.

<p>In the caption of a deposition, all parties, both plaintiffs and defendants, must be individually and correctly,named.</p> <p>The receiptor of property attached is not a competent witness for the defendant in the same suit, when the property attached has been, by the receipt- or, suffered to remain in the defendant’s possession.</p> <p>And the presumption will be, that the property has remained in the defendant’s possession, unless the contrary is shown.</p> <p>And the court, in such case, have no authority to allow the defendant to pay to the clerk of the court a sum equal to the receiptor’s liability to the attaching officer, and then discharge the attachment, or the attaching officer’s liability, so as to render the receiptor a competent witness.</p> <p>The fact, that a witness was rejected on the trial of a case, as being incompetent through interest, is not a sufficient reason for granting a,new trial, as fora surprise.</p> <p>So, where the party, on trial, proved the execution of a promissory note, and the indorsements upon it, as collateral evidence in the case, and laid the note upon the table, without reading it to the jury, or giving notice to the court that it was put into the case, it was held no ground for granting a new trial, for a surprise, that the court, after the argument had commenced, refused to allow the party to comment upon or use the note as evidence in the case.</p>

.TRESPASS, brought to recover the value of certain property, attached by the defendant, as sheriff, as the property of one Caleb B. Hall.

Ejectment for the recovery of certain premises in Castleton. Trial by the Court. The possession of the premises by the defendant, at the time of the service of the writ in this action, was conceded.

Assumpsit upon a promissory note in these words; “Bennington, Dec. 29, 1838; On the first day of April, one thousanfi eight hundred and forty, for value received I promise to pay Uriah Edgerton,^ or bearer, one thousand and fifty six dollars;” (Signed) “ Uiw*euAt-Sayles ;” — on the back of which note there had been in written, f in blank, the names of the defendant and of Samuel C. Raymond.

Indebitatus Assumpsit for use and occupation. The action was referred, under a rule from the county court, and the referee reported, as follows. In January, 1843, one Thompson, being in failing circumstances, made an assignment of his property, including the premises in question, to the plaintiffs, for the benefit of his creditors.

Assumpsit upon a promissory note for 8118,88, dated February 20, 1842, and made payable to Erastus Ramsdell, or order, on demand with interest, arid by the said Erastus indorsed to the plaintiffs, who brought this action as indorsees, alleging that the in-dorsement was made on the day of the date of the note. Plea, the general issue, and trial by the court.

Debt upon a judgment recovered in the court of common pleas for the county of Worcester, in the State of Massachusetts.

Trustee Process. The trustee disclosed, in substance, as follows.

The plaintiffs declared upon a promissory note, executed by the deceased in the State of New York.

- This was an appeal from a decree of the court of probate, approving the will of Hannah Holland, deceased.

It appeared that the case was not heard by the chancellor, but a decree passed by consent, with a view to bring the case here. Held: that whatever was sufficient to put a party upon inquiry, was sufficient to affect him with notice of all those facts, which he might be presumed to have learned upon reasonable inquiry, according to the rule laid down in Green v, Slay ter, 4 Johns. Ch. R. 38.

Trespass de bonis asiportatis. Plea, the general issue, and trial-by jury. Held: that, the attachments appearing to have been made at the same time, and bearing the same date,, and having been served by the same officer, it vras prima facie evidence of a joint taking by the defendants and a trespass; — but that the defendants were at liberty to show that either of them was not concerned in procuring the…

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.

WRIT op Review, brought under the provisions'of chapter 26, section -28, of the Revised Statutes.* The defendant pleaded that the cause of action did not accrue to the plaintiff within three years… Held: that, in computing the year, within which the plaintiff was allowed to bring his action, the day of the robbery was to be included. This was a penal proceeding.

Book Account. Judgment was rendered against the defendant by default, and an auditor was appointed, who reported, in substance, as follows. The plaintiff presented an account against the defendant for cloth and trimmings for a suit of clothes, delivered by him, in June, 1841, to Augustus Potter, the minor son of the defendant. At the time of the sale the son was at work by the month for one Russell, in Shrewsbury, by permission of the defendant, — who resided in Plymouth.

Book Account. ' Judgment to account was rendered in the county court, and an auditor was appointed, who reported, in substance, as follows. The main charge in the plaintiff’s account was for labor for the ■defendant for one hundred and thirty one days and a half. The defendant’s account consisted of charges of payments made by him to the plaintiff, for the labor, from time .to time, while the plaintiff was performing the labor.

Account. It was alleged in the declaration that the defendant, from the first day of January, 1835, to the first day of January, 1839, was the bailiff of the plaintiff, and had the care, &c., of a large amount of property belonging to the plaintiff and defendant, to use, improve, and dispose of for the common benefit of the plaintiff and defendant, and to render a reasonable account therefor to the plaintiff, and that the defendant, during the said time, received divers…

Assumpsit upon a receipt for property attached. Plea, the general issue, and trial by the court. • On trial the plaintiff gave in evidence the receipt declared upon, executed by the defendant, by which he acknowledged that he had received of the- plaintiff, a deputy sheriff, one hundred and twenty five sheep’s pelts, worth one hundred dollars, which the plaintiff had attached as the property of Andrew Backus, upon several writs of ’ attachment against him, describing them,…

Assumpsit upon a promissory note. Plea, the general issue, and trial by jury.

Assumpsit upon a policy of insurance, dated April 1, 1840, by which the defendants insured the plaintiff against loss by fire, to the amount of eleven hundred dollars, upon certain property specified; and the plaintiff alleged that a portion of the property insured had been destroyed by fire. The writ bore date March 31, 1842.

<p>Assumpsit to recover the avails of certain property, received by the defendant to sell as agent for the plaintiff, and for which the plaintiff alleged that the defendant had not accounted. The defendant filed a declaration on book account in offset, on which judgment to account was rendered, and an auditor was appointed.</p> <p>On the trial before the auditor the defendant presented his account, and the plaintiff,' as an offset thereto, presented, in the form of an account, the same claim upon which the original action was founded, — which consisted, mostly, of charges for stoves delivered by him to the defendant, to sell as agent, a part of which the defendant had sold, and received the avails, and the remainder of which were not disposed of, but still continued in the possession of the defendant. The auditor examined the accounts of the parties fully, as presented before him, and reported that there was a balance due to the defendant, to balance the accounts, of $25,21. The report was accepted, and judgment rendered thereon, by the county court.</p> <p>On the trial of the original action the plaintiff offered evidence to substantiate the claim set forth in his declaration, to which the defendant objected, for the reason that the whole subject matter had been submitted to and passed upon by the auditor. The county court sustained the objection, and rendered judgment in the action,, in favor of the defendant, for the balance adjudged due to him on the declaration in offset; to which the plaintiff excepted.</p> <p>There is error in the judgment of the county court, — ■</p> <p>1. Because the claims, adjusted before the auditor, are such as, by law, cannot be. settled in the action of book account. Allen v. Thrall, 10 Vt. 255. Hall et al. v. Peck et al, 10 Vt. 474. The defendant was the plaintiff’s factor ; he was entrusted with the possession of the goods, and was employed to sell them and receive the pay. 1 Chit, on Cont. 56, 57. The mode of compensation does not determine the kind of agency, nor affect the rights, or liabilities, of the parties. The proper remedies, by suit, are either account at common law, or assumpsit; 2 Saund. Rep. 127, n.; and these remedies are reciprocal. Factors have also a remedy by a lien upon the goods; 1 Com. on Cont. 267; he has also the right to retain the money in his hands, and is paid, so far as money of the principal has been received by him, and, if he has sufficient, he can sustain no suit against his principal; but if he should bring one, such being the fact, it would be unnecessary for the principal to plead in offset ; — the law makes the application. Hereford v. Powell, cited in 1 Com. on Cont. 271. Rights like these cannot be settled in the book action.</p> <p>2. A factor cannot bring an action for factorage, unless the principal refuse to come to account. Hereford v. Powell, ub. sup.. The facts, necessary to be proved, are the same, whatever may be the form of the action. The report does not show that the defendant ever offered to account, or requested the plaintiff to account, or pay any thing to him, or that the plaintiff ever declined to account.</p> <p>3. There was nothing submitted to the .auditor, but what was included in and is a part of the transaction, which is the foundation of the plaintiff’s suit, and which should be there tried. A matter of this kind cannot be separated, nor the whole of it be transferred from the original suit to a declaration in offset.</p> <p>1. If the judgment of the court below, accepting the report of the auditor, was correct, the court properly excluded the testimony offered on the trial of the main case. Because, if the testimony had been admitted, it must have gone to the jury with the fact, that the same matter, sought to be established by the testimony, had already been decided upon in the proceedings upon the book account; and this fact would have entirely neutralized the testimony offered, if suffered to have its legitimate effect.</p> <p>2. If the testimony offered was not thus subject to be neutralized by the accompanying fact, in the minds of the jury, it should surely be withheld from them; otherwise the plaintiff would recover twice for the same thing.</p> <p>3. The facts in the case being ascertained, it could no longer be a question.to the jury, but was purely a question of law; the testimony, therefore, was properly withheld from the jury.</p> <p>4. The matters passed upon by the auditor were properly within his cognizance. They were intrinsically proper subjects of book charge, — at least,, those presented by the defendants were so. If any of the claims, passed upon by the auditor, were objectionable, as being without his jurisdiction to try, they were those which were presented by Herrick; and, most obviously, he cannot now say that they were improper matters for the auditor to pass upon.</p>

This was an action of covenant for the non-payment of rent. The plaintiff declared, that,-on the 13th day of February, 1833, he, with his then wife, Rebecca Pingry, executed to Charles W. Watkins, his heirs and assigns, for and during the natural life of the said Rebecca, a lease of certain premises in Chester, in the •county of Windsor, reserving an annual rent of $42,50, payable on the first day of April in each year during the said term ; that said Charles W. Watkins…

Trespass on the Case for so diverting a stream, of water from its natural and usual course, as to cause it to flow over and inundate the plaintiff’s land. Plea, the general issue, and trial by jury. On trial the plaintiff gave evidence tending to prove that the defendant, in 1840, obstructed the course of a stream of water, upon his land, so as to cause it to flow over the plaintiff’s land, as alleged in her declaration; whereby she suffered injury.

Trespass on the Case against the defendant, as sheriff of Windsor County, for not keeping certain property, attached by one Moses Montague, a deputy of the defendant, on a writ in favor of the plaintiff’s intestate against Moulton & Hutchinson, and for not delivering the said property to the officer, to whom was delivered the execution obtained in said suit in which the attachment was made. Plea, the general issue, and trial by jury.

Trespass on the Case against the defendant, as sheriff of Windsor County, for the default of his deputy, Ephraim Ingraham, Jr., in not attaching certain property, which he was directed by the plaintiffs to attach, as the property of one John H. Leland, on a writ of attachment in their favor against said Leland. Plea, the general issue, and trial by jury.

Trover for a house and barn. Plea the general issue and trial jury. Held: in an action of trover, brought for the mill, that the mill never became part of the freehold, and did not pass by the deed; and the same case was again considered, 2 Fairf! 376, with direct reference to the form of the action, and it was held that trover would lie.

<p>Trespass for taking and carrying away a sleigh; the action came into the county court by appeal from a justice of the peace. Plea, the general issue, and trial by jury.</p> <p>On trial, the plaintiff introduced testimony, which was not contradicted by the defendant, and which tended to prove the following facts. On Saturday, January 23, 1841, the sleigh in question was in the shop of one Ira Ayres, in Hartland, in the process of painting, having been left there for that purpose by Ed. Willard, the owner. Ayres had agreed to paint and varnish the sleigh for said Willard, and had, at that time, completed all but the varnishing. On said Saturday the plaintiff and Ed. Willard came together to Ayres’ shop, where the sleigh was, and Ed. Willard then agreed to sell, and the plaintiff to purchase the sleigh, at a price agreed upon. No payment was made by the plaintiff, nor was the sleigh actually delivered; but it was agreed, that, when the sleigh was varnished, it was to be delivered to the plaintiff. Ayres was present' at the time of the trade, and was directed to deliver the sleigh, when it was finished, to the plaintiff, and agreed to do so, and have it finished the then next Monday. There was no other proof of any delivery.</p> <p>On the Monday next following, (being January 25th,)- the defendant, as sheriff, went to Ayres’ shop and attached the sleigh, as Ed. Willard’s property, on a writ which he then held against him, and appointed Ayres keeper for him, and directed him to let no one have the sleigh, but to inform all that it was under said attachment; and Ayres agreed to do so,but at the same time informed the defendant that the plaintiff had purchased the sleigh. On the next day, Tuesday, Ayres informed the plaintiff of the attachment; and afterwards, on the same day, the plaintiff and Ed. Willard came to the shop, — Ayres being out, and his hired man being at work upon the sleigh, — and drew the sleigh out upon the platform of the shop, and talked of going to the blacksmith’s shop for some irons; when the hired man of Ayres told them that they had better put the sleigh back into the shop, — and they did so. Immediately after, the defendant came in, and said to the plaintiff, who was then sitting upon the sleigh and had hold of it, “ I understand you are going to take away my sleigh.” The plaintiff replied, claiming the sleigh as his own. The defendant claimed it by virtue of the attachment, and forcibly took it from the plaintiff and drew it away.</p> <p>The defendant’s counsel requested the court to instruct the jury, that the plaintiff’s testimony did not show a sale, completed by delivery, or possession, sufficient to entitle the plaintiff to recover in this action. But the court refused so to charge, but directed the jury to return a verdict for the plaintiff for the value of the sleigh. Exceptions by defendant.</p> <p>The defendant was entitled to the instructions asked' for below, in two points of view. First, The plaintiff’s proofs did not entitle him to maintain trespass as against a stranger. Secondly, The plaintiff’s claim is that of a pretended purchaser against an attaching creditor of his vendor. And the objection to the plaintiff’s right to recover is, in either view of the case, perfectly good, upon authority, under the general issue.</p> <p>1. The plaintiff, to maintain this action, was bound to show that, at the time of the taking complained of in his declaration, he had either the actual, or constructive, possession of the sleigh, and had also either a general, or qualified, property therein. If any authority is necessary, we cite Brainard et dl. v. Burton et al, 5 Vt. 98. Whereas the facts in the case show in him no such possession, nor property. The taking by the defendant, (or trespass, if such it was,) was on Monday the 25th day of January. Immediately upon the seizure, on that day, and the appointing of the keeper, the possession was, in law, in the defendant, as sheriff He became immediately thereupon liable to an action of trespass, had he acted without authority, and could from that moment have maintained trespass for any illegal interference with his possession. Up to that time the general property, as well as the constructive possession, was in Ed. Willard. The plaintiff had not even a qualified property in the sleigh, and had never had possession. Treating the transaction as bona fide, it was a mere executory contract for a thing unfinished and in the process of manufacture, before it had existence in the form, in which it was contracted to be delivered, and “ when nothing passes by .the contract until it has such existence and is actually delivered.3' Muchlow et al. v. Mangles, 1 Taunt. 319. Brainard et al v. Burton et al., 5 Vt. 99.</p> <p>In the present case it was not left to implication, but, by the express terms of the contract, no delivery was to be made until after the sleigh should be completed. It was not completed, when attached; consequently the time had never arrived, when the plaintiff was entitled to take possession. Having had, therefore, no property, nor possession, nor right of possession, at the time of the taking, the plaintiff cannot maintain trespass, even as against one acting without pretence of authority.</p> <p>2. But more especially do the plaintiff’s proofs fall short of sustaining this action, when his claim is viewed as in opposition to that of an attaching creditor óf his pretended vendor. And that view of the case is proper, upon the proofs put in, notwithstanding there is no plea but the general issue. In trespass a defendant “is not obliged to justify specially unless he is prima facie a trespasser.” Badián v. Powell, Cowper 478. The taking was not from the plaintiff’s actual possession; — therefore, prima facie, no trespass upon him; — which drives him to prove property in himself. And it is an invariable rule, that a defendant, under the general is_ sue, may disprove any and all facts, which the plaintiff is bound to prove, to maintain his action. Brainard et al. v. Burton et al., 5 Vt. 100. Merritt v. Miller, 13 Vt. 418.</p> <p>The taking, then, is to be regarded as having been by virtue of process; — and, viewed in that light, the case does not fall at all within the principles of the decision in Barney v. Brown, 2 Vt. 377. There “every thing was done which was necessary to complete the sale and. vest the property in the plaintiff.” In that case the plaintiff paid a valuable consideration ; — the property was in existence, in a finished state, susceptible of immediate delivery ;— by the terms of the contract it was to be delivered forthwith;— there was a delivery in fact, — for the person, in whose keeping the sheep were, was directed and agreed to, and did in-fact, select and mark and commence keeping them solely and exclusively for the purchaser, before the attachment; — in short, nothing remained to be done, in order to divest the vendor of all property and possession, and to vest the whole property and legal possession in the purchaser. In the present case, “ something remained to be done on the * part of the seller, as between him and the buyer, before the com- ‘ modity purchased was to be delivered ; — and a complete present * right of property had not attached in the buyer.” — See Hanson et al. v. Meyer, 6 East. 614. No consideration was paid, and no term of credit was agreed upon. Ed. Willard could have rescinded the pretended contract at any time before the sleigh was finished and delivered, for the non-payment of the purchase money, or the insolvency of the plaintiff. Wallace v. Breáis, 13 East. 522. Shepley v. Davis, 5 Taunt. 621. Had the sleigh been destroyed by fire, or other casualty, at the time of the attachment, it would, even as between the plaintiff and Ed. Willard, have been held' “ no delivery,” — and the plaintiff would not have been, in law, responsible to him for the stipulated price, — but the loss would have been Ed. Willard’s. Mapelye v. Machie, 6 Cow.per Woodworth, J., 253^-4. Much less can the sale, (even if bonajide,) be regarded as complete, as against an attaching creditor of Ed. Willard’s, within the principles of any decision in this state.</p> <p>1. It can hardly be pretended but that the property in the sleigh became vested in the plaintiff immediately upon the purchase. It was at his risk. The vendor could sue for and recover the pay immediately upon the sale. Ayres was to deliver the sleigh as soon as it was varnished, to which he assented. Can there be any doubt who should bring the suit, in case Ayres should have converted the property? 1 Swift’s Dig. 380. Whithouse v. Frost, 12 East 613. Lucas v. Dorrien, 7 Taunt. 278. Barney v. Brown, 2 Yt. 374. Harding v. Janes, 4 Vt 462. Chappel v. Marvin, 2 Aik. 79.</p> <p>2. But it is insisted that there is not such a delivery in this case, as to protect it from attachment by the creditors of the vendor. This question, we contend, is fully settled, in this state, by several adjudged cases. Barney v. Brown, 2 Vt. 374. Harding v. Janes, 4 Vt. 462. Spalding v. Austin, 2 Vt. 555. Pierce v. Chipman, 8 Vt. 334.</p>

Ejectment for land in Royalton. Plea, the general issue, and trial by jury.

This was a complaint for forcible detainer, under chapter 41, sections 15 , and 16, of the Revised Statutes, and came to the county court by appeal from the decision of a justice of the peace.

Habeas Corpus. The petitioner prayed to be relieved from imprisonment, in the common jail of Windsor county, upon an execution in favor of the President, Directors and Company of the Bank of Windsor, against the petitioner and others. The execution creditors appeared to answer to the petition, without citation.

A commissioner was appointed by the county court, who reported the following facts. In 1804, Samuel Dix, the father of the intestate, Sophronia Dix, died, leaving his widow, Chloe Dix, who was, on the 20th day of June, 1804, appointed guardian of the said Sophronia by the probate court, and continued such guardian until her intermarriage with the plaintiff, in 1807.

The orators alleged, in their bill, that, from the first day of July, 1839, to the first day of December, of the same year, the orator Pettes was sheriff of the county of Windsor, and that the orator Ingraham was a deputy sheriff under him; that on the eighth day of July, 1839, Ingraham, who resided at Chester, received, in a letter from Daniel Roberts, Jr., of Manchester, an attorney at law, an execution in favor of the Bank of Whitehall against Edward Manning, Stephen…

Indebitatus Assumpsit. The declaration was for work and labor, and for money paid, laid out and expended by the plaintiff for the defendants, at the defendants’ request, in the support. and maintenance of one Austin F. Churchill, who was described, in the declaration, as a pauper, having his legal settlement in said town of West Fairlee. Plea, the general issue, and trial by jury.

Indebitatus Assumpsit for goods sold and delivered. Plea, the general issue, and trial by the jury. The plaintiffs claimed to recover for goods sold to the defendants in October and December, 1841, and in May, 1842.

Assumpsit. The plaintiffs alleged, in the first count in .their declaration,-that the defendant, on the 30tb day of June, 1841, requested the plaintiffs to contract for him for the sale of a large quantity of starch, to be delivered by him at Lowell, Massachusetts, to wit, thirty tons per year for two years from the first of October, 1841, to be delivered by him in quantities of not less than six nor more than eight tons per month, to be paid for at the rate of four cents…

<p>If one promise to indemnify another for all loss, damage and expense which he shall incur in giving up to the promissor a horse which he has in his possession, and bringing a suit against the person of whom he purchased it, for fraudulently selling to him a horse belonging to another, on condition that he fail in such suit, and such action is commenced, and the plaintiff fails to recover, the record of the judgment in that action is competent evidence in an action against the promissor, founded upon the promise, notwithstanding no notice of the commencement or pendency of such prior action was given to the defendant. It is evidence against the defendant, to show the bringing and the failure of the action.</p> <p>In an action on such contract the plaintiff would be entitled to recover, provided he proved that he commenced such prior action, and failed to recover in it; but the amount of damages, which he is entitled to recover, must depend upon the title to the horse , and as to that question, Per Red-field, J., the judgment in the former action would seem to be inter alios, and not conclusive.</p> <p>In such case the consideration is sufficient to support the contract, as being both a loss to to the promissee and a benefit to the promissor.</p> <p>In a declaration upon such contract, the allegation, that the plaintiff brought a suit against the person from whom he purchased the horse, is sufficient after verdict. It will be presumed that it was such a suit as was stipulated.</p> <p>The difference between a title defectively stated and a defective title illustrated.</p>

Account, — the plaintiff declaring against the defendant as bailiff and receiver. Judgment to account was rendered, and the case was sent out to an auditor, who reported as follows.

This was an action against the defendant, as constable and collector of the town of Braintree, brought to recover the penalty imposed by the Revised Statutes, chapter 106, section 16, for receiving illegal fees.

In this case the plaintiffs declared against the defendant in a plea of the case, alleging that they were possessed, as administrators, of certain premises, which were the property of the intestate, in his lifetime, and‘of which he died seized, upon which there were lying a quantity of felled trees, timber, cord wood and brush, which had been cut and partly prepared for removal for the purpose of clearing and cultivating the. land, and that the defendant set fire to the said…

<p>Appeal from an order of removal of John Broughton and his wife. The case was tried by the court upon the following state- " ment of facts, agreed to by the parties.</p> <p>About the year 1798 the said John Broughton, and his wife Hanpah Broughton, moved from the State of Connecticut into the town of Tunbridge, and resided there unitl the year 1817, during which time they had several children. In the year 1817 the said Broughton moved with his wife and family into the State of New York; and in the year 1820 he left his wife and family in New York and came to the town of Norwich, where he resided, and supported himself, until the year 1832, when he married another woman, and moved with her to Barnard, in this state, where he resided with her for about six years and six months, when she died, and the said Broughton went to Tunbridge, to reside with his son, Humphrey Broughton, — which was in May, 1839. About the year 1833 the said Humphrey Broughton, who then resided in Norwich, went to New York and brought home his mother, the said Hannah Broughton, and she resided with him until the year 1839, when he removed to Tunbridge, and’took the said Hannah with him. From May, 1839, the said John Broughton and Hannah Broughton continued to reside with the said Humphrey until December, 1841, when they were removed to Norwich by virtue of the order of removal made in this case. While they resided with the son, they did not cohabit or live together as husband and wife, nor have they ever so lived, since the said John left his wife and family in New York in 1820.</p> <p>Upon these facts the county court decided that both the paupers were duly removed; to which decision the defendants excepted.</p> <p>From the facts agreed upon it appears that the pauper Hannah Broughton has not been treated as the wife of John Broughton since 1820, and that she has not lived with him as his wife since that time. Hence we insist that her residence cannot be controlled by his, and that she could, during this time, acquire a settlement by her own residence.- There is no pretence that she acquired a settlement in Norwich in her own right. Bethel -v. Tunbridge, 13'Vt. 445. But if the court should hold that they were to be regarded as a family, then it follows that the residence of John Broughton, in Norwich, while his wife "was in the state of New York, previous to 1833, would not create a settlement in Norwich, and therefore that neither of the paupers had a settlement in Norwich. In the one event the court would hold that the woman was unduly removed, and in the other, that both the woman and the man had no settlement in Norwich.</p> <p>1. The plaintiffs insist, that, from the facts in this case, it is evident, that John Broughton’s legal settlement is in Norwich. Slade’s'Stat. 381-383. Middletown v. Poultney, 2 Vt. 437. Burlington v. Calais, 1 Vt. 385. Georgia v. Grand Isle, 1 Vt. 464. Adm’rs of Chafin v. Wardens, 15 Vt. 560. Starksboro’ v. Miner burgh, 13 Vt. 215. Brayton'185.</p> <p>2.. Hannah Boughton, being de lege the wife of John Broughton, has her legal settlement also in Norwich. This is so notwithstanding their separation, and would be so, were there a divorce a vin-culo. Slade’s Stat. 381. 1 Bl. Com. 363. Wells v. Westhaven,</p> <p>5 Vt. 322. Rex v. Eltham.,5 East 113. Eastwoodhey v. Westwood-hey, 1 Str. 438. Barnet v. Concord, 4 Vt. 564. Broohfield v. Hartland, 10 Vt. 424. Bradford v. Lunenburgh, 5 Vt. 481. Georgia v. Grand Isle, 1 Vt. 464. Bethel v. Tunbridge, 13 Vt. 445. Townsend v. Billerica, 10 Mass. 411. Canton v. Bentley, 11 Mass. 441. Middlebury v. Waltham, 6 Vt. 200. Hanover v. Weare, 2 N. H. Rep. 131. Landaff v. Atkinson, 8 N. H. Rep. 532. Royalton v. West Fairlee, 11 Vt. 438. Dalton v. Bernards-toion, 9 Mass. 201. Guilford v. Oxford, 9 Conn. 321. Hartland v. Pomfret, 11 Vt. 440.</p>

Audita Querela. The plaintiff alleged, in substance, that he had been amerced by the plaintiff in a fine for the non-performance of military duty, under the statute of 1842 in reference to the militia, and had been summoned to appear before a justice of the peace, to show cause why judgment for the fine and .costs should not be rendered against him, and that he appeared at the time and place designated and demanded a trial by jury, and that the justice refused to allow him a…

<p>If property be bailed for a specified time, and, before the term expires, the bailee destroy the property, the bailor may sustain trover against him for its value.</p> <p>That the defendant, in an action for a tort, was insane, at the time of committing the injury, is no defence to the action ; and, if the action be for destroying property entrusted to the defendant, it is no defence that the plaintiff, at the time of delivering the property to the defendant, knew that he was insane.</p> <p>A witness, not a professional man, may give his opinion in evidence, in connection with the facts upon which his opinion is founded, and as derived from them; though, Per Bennett, J., he could not be allowed to give his opinion, founded upon facts proved by other witnesses.</p> <p>When it appears from the whole case, as stated in the bill of exceptions, that the plaintiff is entitled to recover, the case will not be remanded, for a new trial, though evidence, offered by the defendant in the court below, may have been rejected improperly under the view there taken of the case by the parties and the court.</p>

<p>Where a surety executed, with his principal, a note payable in one year after its date, and, after the note became due, the principal obtained his discharge in bankruptcy, under the Act of Congress of Aug. 19,. 1841, and the surety did not prove his contingent claiin against the principal under the commission, under sect. 5 of the bankrupt Act, and, after the principal had obtained his discharge, the surety paid the note, it was held the discharge in' bankruptcy Was no bar to an action in favor of the surety against the principal, to recover the money so paid.</p> <p>In such action, the declaration being for money paid by the plaintiff for the defendant at his reguest, the moral obligation of the defendant to indemnify his surety is sufficient foundation for implying, in law, the reguest alleged.</p> <p>Where several trustees, summoned1 under the trustee statute, disclose a joint indebtedness to the principal debtor, and one of the trustees claims that the principal debtor, is indebted to himself and a third person, as partners, such individual trustee will not be allowed to set off this claim against the joint indebtedness of himself and his co-trustees.</p>

Assumpsit upon a promissory note, for $38.99, dated February 5, 1842, and made payable to the plaintiffs, or order, on demand, with interest annually. The declaration contained also a count for goods, &c., sold and delivered. The defendant pleaded, in bar of the action, his discharge in bankruptcy, duly obtained in the district court of the United States, on the 11th day of January, 1843, under the Act’of Congress of August 19, 1841.

Audita Querela. The complainant alleged in his complaint, in substance, that judgment was recovered against himself and one King, by the defendant, Grout, at the March Term of the Supreme Court in Orange County, 1842, in an action of tort, and that the court also adjudged that the cause of action arose from the wilful and malicious act of the defendants in that suit, and that they ought to be confined in close jail, a certificate of which was duly indorsed by the clerk upon…

- The orator set forth, in his bill, that, in the spring of 1838, the defendant Dana had a draft upon a firm in Worcester, Massachusetts, for about the sum of $3821.00, and that an arrangement was made between Dana, the orator and the defendant Baxter, by which the orator and Baxter were to receive the said draft, and use the avails thereof for their individual benefit, and account severally to Dana for the amount received and used by each respectively; that Baxter received,…

Assumpsit to recover for the use of the plaintiff’s dwelling house for the purpose of holding therein town meetings. Plea, the general issue and the statute of limitations, and trial by jury.

Debt upon a judgment, for $71.63 damages and $3.05 costs of suit, recovered Nov. 23, 1835, and on which there was due, with the interest, at the time of the commencement of this action, a sum exceeding one hundred dollars.

Trustee Process. Judgment was rendered against the principal debtors, and the trustees filed their disclosures, upon which, with testimony aliunde, trial was had.

<p>A genera? appearance, entered, by the defendants in a. suit, upon the docket of the court, and submitting to the jurisdiction of the court, by pleading to the merits of the suit, is a waiver of any defect of service, which might have been taken advantage of by pleading.</p> <p>When a.suit is commenced against a firm, one of the partners has power to employ an attorney to attend to the suit on the part of the defendants ; and an appearance in the suit, entered by the attorney thus employed, will be binding and' conclusive upon the other partners.</p>

Trover for a case of drawers and a show case. Plea, the general issue, with notice of special matter of defence, and trial by jury. On trial the evidence on the part of the plaintiff tended to prove the following facts. A shop in the village of Montpelier was owned by one Jenkins, and by him occupied as a goldsmith’s shop until the time of his decease, which was in 1836.

The bill was brought to foreclose a mortgage of certain premises in Montpelier, executed by one John Parker, on the 21st of September, 1836, to secure a note for $469.64, signed by the mortgagor and bearing date September 12, 1836.

Indebitatus Assumpsit for money had and received. Plea, the general issue, and trial by jury.

Assumpsit upon a contract in writing in these words; — “ Sutton, ‘ March 4, 1842. For value received I promise to pay Adna C. ‘ Denison, or order, fifty dollars, to be paid in stores, or hollow ‘ ware, as he may choose, delivered at the Tyson Furnace depot ‘ at Newbury, Vermont, at their wholesale prices, on demand. ‘ (Signed) E. K. West, Agent for Tyson Furnace, at Newbury Vt.” Plea, the general issue, and trial by jury.

In this case the whole matter in controversy was tried upon a declaration in offset filed by the defendant. Judgment to account was rendered, and an auditor was appointed, who reported, in substance, as follows. In 1821 the defendant, being childless, took the plaintiff’s wife, then Susan Sanderson, who was then about eight or nine years of age, and who was a niece of his wife, to live with him until she should become of age.

Scire Facias upon a recognizance in the sum of one hundred dollars, entered into by the defendants, on the 22d day of January, 1840, before Calvin Morrill, Esq., a justice of the peace, on an appeal being taken by Coben Balch and Coben Balch, Jr., from a judgment rendered against them by said justice in an action in favor of the present plaintiff against them.

This was an action brought to recover the penalty, given by statute, for being party to a fraudulent conveyance by one Thomas Gibbs, a debtor of the plaintiffs, and of procuring, against the said Gibbs, a fraudulent judgment, with the intent thereby to enable the said Gibbs to avoid the debts due from him to the plaintiffs.

Indictment for an assault and battery upon the person of one John D. Whitehill.

Book. Account. The action was commenced originally to the county court, and was sent out to an auditor, from whose report it appeared that the debit side of the plaintiff’s account was made to exceed one hundred dollars by reckoning in, as a part of it, the amount of a bill of $37.75, for goods purchased by the - plaintiff for the defendant in Portland; in June, 1842, and which were paid for by the defendant, and the bill receipted, at the time the goods were delivered to…

<p>When a bond, or deed, comes in question incidentally, and solely, for the purpose of proving that such an instrument was-executed, its execution need not be proved by the subscribing witnesses, — nor, Per Williams, Ch. J., is its production necessary. (</p> <p>Where, in order to prove that the collector of a land tax had executed a bond to the committee appointed to superintend the expenditure of the tax, as required by statute, the bond itself was produced, it was held that its execution might be proved by one of the committee, to whom it was executed, and that it was not necessary to call the subscribing witnesses, although they were living, and within reach of process.</p>

<p>Tbespass on the Case for deceit in the sale of a horse. The declaration was in two counts, and alleged that the defendant falsely warranted the horse to be sound, except a lameness occasioned by being corked, — which was then apparent, — -and that the defendant, at the time of making the warranty,. 1mm that the warranty was false.</p> <p>On the trial the plaintiff’s testimony tended to prove, that, while the negotiation for the exchange of horses, as alleged in the declaration, was pending, the plaintiff asked the defendant if he would warrant his horse to be sound, and that the defendant replied, that he would not warrant any horse sound, but that “Ids horse was sound, as far as he knew, except the cork,” and that in fact the horse was unsound, and had the heaves badly, and that this was well known to the defendant and was not known to the plaintiff, and that the defendant’s representation was made with a view to deceive the plaintiff, and that he was thereby deceived. The defendant’s counsel objected to the testimony being received, on the ground of a variance between that and the declaration, and, the court entertaining doubts, the plaintiff obtained leave to file an additional count, under a rule, that, if he recovered only on that count, he should recover no back costs and should pay the defendant’s costs to that time, with leave to save exceptions, if the court should decide against him,</p> <p>TJie jury returned a verdict for the plaintiff, and the court decided that the plaintiff was entitled to judgment upon his two first counts, and that there was no variance between the testimony, as above detailed, and the second count; to which decision the defendant' excepted.</p> <p>cited 2 Saund. PI. & Ev. 517.</p> <p>contended that the evidence substantially corresponded with the averments in the two first counts of the declaration, and cited Silver v. Kendrick, 2 N. IL Rep. 160 ; Rodman v. Forman, 8 Johns. 26; Henry v. Cleland, 14 lb. 400 j McKinley v. Rob, 20 lb. 351; Saxton v. Johnson, 10 lb. 418; Southwick v. Stevens, 10 lb. 443; Lewis v. Few, 5 Ib. 1; Cunningham v. Kimball, 7 Mass. 65; Worster v. Canal Bridge Co., 16 Pick. 541 ; Hastings v. Lovering, 2 lb. 214; Andrews v. Williams, 11 Conn. 326; Riley v. Gourley, 9 lb. 154; Beeman v. Buck, 3 Vt. 53; Wright v. Geer, 6 Vt. 151 ; Vail v. Strong, 10 Vt. 457; Allen v. Goff, 13 lb. 148; Hutchinson v. Granger, 13 lb. 386.</p>

<p>The statute of 1821, — SI. St. 266, — which imposed a penalty for being party toa fraudulent note, or judgment,.continued in force until July, 1840, and all penalties incurred therefor prior to that time accrued subject to the provisions of that statute.</p> <p>Under that statute the whole amount of a judgment was forfeited, though but part of the consideration was fraudulent.</p>

<p>Assumpsit upon a promissory note, payable to George C. West, or bearer. Plea, the general issue, and trial by the court.</p> <p>On trial, the' plaintiff proved the execution, by the defendants, of the note declared upon. From the evidence introduced by the defendants it appeared that one Thomas McKnight, a deputy sheriff, sometime in the year 1842, attached the personal property of-one Joseph Riker, upon a writ of attachment in favor of David A. Smal-ley, and took the receipt of the defendant Roger for said property ; that judgment was obtained against Riker in said suit, and execution thereon was delivered to said McKnight, as deputy sheriff, in due season to perfect' the lien created by the said attachment upon said property; that said property was, in the mean time, wasted, or eloigned, and Riker was unable to pay said execution, which was permitted to run out in the hands of McKnight, he having seasonably demanded the said property of Roger; that the note now in suit was thereupon made, for the purpose of raising money to pay said execution and one or two smaller executions against Roger, for which McKnight had become liable as deputy sheriff; that the note was made and signed without the knowledge of West, the payee, with an expectation that he would advance the money upon it, — but it did not appear that the note was ever presented to him for that purpose; and that the note was delivered by Roger to McKnight soon after its date, and was held by him until it became payable, and, within a very few days thereafter, was delivered by him to the plaintiff for collection, with directions that the plaintiff should apply the money, when collected, in payment of the several executions above mentioned.</p> <p>The plaintiff, in the progress of the trial, called the said Thomas McKnight as a witness, — to whose admission the defendants objected, upon the ground of interest in the event of the cause. The plaintiff thereupon exhibited an assignment from MeKnight to himself of all the interest of said McKnight in the note in suit, and McKnight exhibited a release from the plaintiff to himself of all obligation which he was under to indemnify the plaintiff against the costs and expenses of this suit. It appeared that the said assignment and release were executed without any thing being paid, or received, as a consideration therefor. The court then overruled the objection and admitted the witness, and he testified to facts material in the case.</p> <p>Judgment was rendered for the plaintiff. Exceptions by defendants.</p> <p>1. If common principles are correct, then the ‘neglect of McKnight to return the execution against Riker, and account for the property attached on the writ, rendered his principal, the sheriff, liable for the amount of the execution, and of course made McKnight liable over to him for his neglect. This note was, by McKnight, placed in the hands of the plaintiff, in trust, to be by<him collected and paid over to this and the other execution creditors, in discharge of this liability. If the note is collected, then McKnight will be discharged, when the trustee has done his duty. If the note is not collected, then McKnight still remains liable. The discharge from the plaintiff to McKnight did not discharge, nor assume to discharge, this- liability. The plaintiff had no power to discharge it; he could only give an indemnity against it. The assignment from McKnight to the plaintiff did not discharge this liability. He only assigned his interest; and that was nothing; for the case shows that the plaintiff was never to pay or account for the . note to McKnight, but to other persons. Neither does this assignment excuse the plaintiff from accounting for this note, if collected, to the persons with whom he agreed to account, when he received the note. If the execution debtors were to. pay the executions to the creditors, and procure their discharge, could this plaintiff then recover? It is only upon- the ground that he is trustee for others, .that he can claim to recoverfor it is only in that view that there would be any possible consideration for the note.</p> <p>On the small executions McKnight was clearly liable, as the case shows; and he is interested thus far, without dispute. If the witness has an interest, the amount is.of no importance. I Sw. Dig. 740. 2 Stark. Ev. 744, 746, 750.</p> <p>2. The only remaining question is, whether there was ever such a delivery of the note to West, and acceptance by him, as will entitle this plaintiff, or any other person, to recover on the note. We apprehend that this case is distinguishable from that of Baxter v. Bucle, 10 Vt. 548. In that case the representatative of the payee accepted the note, and gave a good consideration for it. In this case neither West, nor any other person on his behalf, has ever accepted the note.</p> <p>1. It would seem that a note, payable to A. B. or bearer, is the same as if payable to A. B. or C. D., and, if so, no reason can be assigned why the bearer cannot as well maintain his action without a delivery to A. B., as with. Grant v. Vaughan, 3 Burr. 1516. Matthews v. Hall, 1 Vt. 323. Baxter v. Bucle, 10 Vt. 553.</p> <p>The note in question took effect upon delivery to McKnight. It was made and delivered to him unconditionally. He might have maintained an action thereon in his own name, as bearer, when the same became due, and as well may the plaintiff, to whom the same has been delivered and assigned. And the plaintiff might even have sustained an action in the name of West, had the note not been negotiable. Thrall v. Benedict et al., 13 Vt. 248. Bank of Burlington v. Beach, 1 Aik. 62. Baxter v. Buck, 10 Vt. 553.</p> <p>2. ’ It is apparent, that the note in suit was made and delivered to McKnight as his property, and for his sole benefit. He accepted it for his own security. It was taken without the consent, or knowledge, of the creditors in the executions referred to. McKnight was not their agent for this purpose, and he did not assume to act as such. Consequently he had the right to dispose of the note in any manner he chose. It is true his interest related both to the subject matter in dispute, and to the payment of costs; but the release and assignment purged him of all such interest. A.nd these instruments having been executed under seal, it makes no difference whether any consideration actually passed between the plaintiff and McKnight, or not. 'Willing et al. v. Oonsequa, 1 Pet. R. 307. Baxter v. Buck, 10 Vt. 553, Moore v. Rich, 12 Vt. 563, and the cases there cited. Chase et al. v. Burnham et al., 13 Vt. 447.</p>

Book Account. An auditor was appointed in the county court, who reported, in substance, as follows. Held: at which three of the members of the association were appointed a, building committee, to superintend the building and furnishing of the house, — of which building committee the defendant was one, and the most active member, whose business it was to procure necessary lumber.

Debt on recognizance. The plaintiff declared against the defendants, — “ In a plea that they, the said Lewis Morrill and Alvin ‘ Flint, render to the said Harriet Blood the sura of two hundred * and fifty dollars, which they owe to and unjustly detain from her,— ‘ For that whereas the said defendants heretofore, to wit, on the ‘ 28th day of July, 1840, at Irasburgh aforesaid, came before the ‘ Hon Isaac Parker, then and still being a judge of the county court ‘ within and…

This was a petition to the county court, founded upon chap. 16, sect. 14, of the Revised Statutes, praying that the petitionee Levi Warren might be ordered to contribute towards the support of his mother, Mary Warren, who was a pauper, and had been, and, at the time of preferring the petition, still was chargeable upon the town of Tinmouth. The citation attached to the petition was made returnable to the December Term, 1842, of Orleans county court.

Trover for a harness. Plea, the general issue, with notice of justification under a collector’s warrant. The case was submitted to the court 'upon a statement of facts, agreed to by the parties, which was, in substance, as follows, On the first day of April, 1840, the plaintiff resided in Norwich, and was the owner of a stallion, which he had kept in Norwich and Thetford the year previous, and which he intended to keep in those towns during the ensuing season.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, in substance, as follows.

<p>Appeal from an order of removal, made by two justices, of . one Elizabeth Draper, a pauper, from the town of Pawlet to the town of Sandgate. Plea, that the last place of legal settlement of said pauper was not in Sandgate, and trial by jury.</p> <p>On trial the plaintiff introduced evidence tending to prove, that Elizabeth Hills, the mother of the pauper, came to reside in Sand-gate in the spring of the year 1806, and resided there from that time for more than three years, that the pauper, during all that time, was a minor, and lived under the care and charge of her mother, and that the said Elizabeth Hills was, during all that time, a widow.</p> <p>The defendants introduced evidence tending to prove that the said Elizabeth Hills did not come to Sandgate to reside until the spring of the year 1807, and that she resided there until 1810, and they introduced a certified copy of the record of a warning to the said Elizabeth Hills to depart from said town, under the statute of 1801, and the officer’s return thereon. The warning was dated October 4, 1807, and was duly served October 7, 1807, and was indorsed, by the then town clerk, as follows; “ Received into record, 9th October, 1807.” The certificate of the town clerk attached to said copy, was in these words; “ Sandgate, April 7, 1843. I hereby certify the foregoing is a true copy of record, as recorded among the records of the town of Sandgate.”</p> <p>The plaintiffs then offered in evidence a copy of the same warning and officer’s return, with the town clerk’s certificate attached thereto, in these words; “ I hereby certify that the above is a true copy of a record, made by me March 25,1842, and examined by me April 25, 1842.” The defendants objected to so much of said certificate as specified the time when the record was made; but the court overruled the objection, and decided that the said certificate ,was prima facie evidence that the said warning and officer’s return were not recorded in the town clerk’s office of Sandgate within one year after the said Elizabeth Hills came to reside in said Sandgate, and that the said warning would not, therefore, prevent the said Elizabeth Hills from gaining a settlement in Sandgate. The defendants thereupon submitted to a verdict for the plaintiffs, and excepted to the above decisions of the court.</p> <p>1. Town clerks are made certifying officers, as to what appears upon the records of the town; Rev. St. 90, § 33; but, as this is only by virtue of the statute, it follows, that their certificate as to any extraneous fact, such as the time when, or the circumstances under which, any record was made, is unofficial, and no better than the certificate of any other person. When, therefore, in this case, the town clerk certifies that the record was made in 1842, he' certifies to something not in the book, and we want his oath for it. Coit v. Wells, 2 Vt. 318. Hathaway v. Goodrich, 5 Vt. 65. Blodget v. Jordan, 6 Vt. 580.</p> <p>2. This warning is found upon the record. It appeared upon the record that the same was “ received into record ” on the 9th of October, 1807, — and it is so certified in the copy given in evidence by the defendants. This, standing by itself, it can scarce be doubted, shows the warning “ entered on the records ” of the town at that date. It is difficult, then, to see how the certificate upon the copy presented by the plaintiffs, that the present town clerk recorded a like paper in 1842, affords any evidence that the first was not recorded previously.</p> <p>3. The warning was returned by the constable in proper time, and, (upon the court’s supposition) the town clerk indorsed upon it “ Received into record, October 9, 1807,” and affixed thereto his name and official character. We contend that this, of itself, at any rate with the subsequent copying of the paper upon the town books, would be an entry, on the records of . the town, within the meaning of the statute. This paper was received, not simply for record, but into record, as made such by the authentication of the town clerk, and treating that as an entry on the records of the town, making it a record of itself.</p> <p>The copy of the record, given in evidence by the defendants, was defective, in not stating when the original process was recorded by the town clerk, — leaving that fact wholly to inference. The paper introduced by the plaintiffs had no farther effect, than to render certain that which before was doubtful; and the certificate was none other than should have been made by the town clerk upon the paper offered by the defendants. 3 Vt. 89.</p>

Debt upon a bond, executed by the defendant and one Louisa Rice, conditioned for the faithful performance, by the said Louisa, of the duties imposed upon her by law as administratrix upon the estate of Mark Rice.

This was an action of covenant, brought to recover the rent reserved by a lease, and was commenced by Robert Moody, who deceased after the service of the writ upon the defendant and prior to the return day of the same. The plaintiff, Shaw, was appointed administrator upon the estate of Moody, and entered to prosecute the action before the justice, to whom the writ was made returnable, and the action came to the county court by appeal.

Assumpsit upon a receipt for property attached on mesne process.

Book Account. Judgment to account was rendered in the county court, and an auditor was appointed, who reported the facts found by him as follows. The plaintiffs presented an account of $49.65; of which sum $39.55 was originally an account in favor of the firm of Fuller & Shaw against this defendant, for goods delivered by them to the defendant, while they were partners in the mercantile business.

Indebitatus Assumpsit, for money had and received. Plea, the general issue, and trial by jury.

Assumpsit upon a promissory note. Plea, the general issue, and trial by the court.

<p>Trespass quare clausum fregit. The premises, upon which the injury was committed, were described in the declaration as situated in the town of Leicester, in the county of Addison, and the writ was made returnable in said Leicester, before a justice of the peace of the County of Addison. The plaintiffs and defendant were described in the writ as residents of the town of Brandon, in the county of Rutland.</p> <p>The action came to the county court by appeal; and the defendant pleaded,- — as he had pleaded on the trial before the magistrate,— that the justice of the peace, before whom the writ was made returnable, and who tried the suit, had not jurisdiction of the same, for the reason that all the parties to the suit were residents of Brandon, in Rutland County. The plaintiffs replied that the trespasses complained of were committed upon their close, situated in Leicester, in the county of Addison, and not elsewhere. To this replication the defendant demurred.</p> <p>The county court held that the replication was insufficient, and that the plea was sufficient, and rendered judgment for the defendant, for his costs. Exceptions by plaintiff.</p> <p>The Revised Statutes relative to justices of the peace, chap. 26, sect. 14, must determine the question raised in this case. The action of trespass on the freehold is made local, only when brought before the Supreme or county court. Rev. St., c. 28, §11. This is a statute regulation. Hunt et ux. v. Pownal, 9 Vt. 417.</p> <p>1. The fourteenth section of the justice act, Rev. St. 171, insisted on by the defendant, is expressly, and by its terms, confined to those cases, where there is no other provision of law inconsistent with it. That section, therefore, leaves the question open, to be controlled by any general principal of law applicable to the subject. The eleventh section of chapter 28 of the Revised Statutes, it is believed, establishes the rule applicable to this case.</p> <p>2. If the statute is silent upon the subject, then we insist that the action, being local at common law, must be brought in the county where the land lies. 3 Bl. Com. 294. Lienoio v‘. Ellis, 6 Mass. 331.</p>

Indictment for an assault and battery upon a sheriff, and impeding him in the execution of the duties of his office. The indictment was in these words. “State of Vermont, Addison County, ss. Held: as to what the deceased witness testified at said court;— 1. Because he could not give the language of the witness; 1 Stark. Ev. 261-2, 280; 2 Russ, on Crimes 683; 1 Phil. Ev. 200, 274 ; 4 T. R. 290 ; 3 C. & P. 387; Melvin v. Whiting, 7 Pick. 81. 2.

Ejectment. Plea, the general issue, and trial by jury. The plaintiff claimed title to the demanded premises by virtue of several mortgage deeds, executed by the defendant Reed, and which described distinct premises, parcel of the demanded premises.